W$P (Jnrnpll iCaui ^rl^nnl library Cornell University Library KFN6011.B62 3 1924 022 786 879 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022786879 CODE PRACTICE IN PERSONAL ACTIONS. An Elementary Treatise upon the Practice in a Civil Action, as governed by the pro- visions of the New York Code of Civil Procedure. PREPARED FOR THE USE OF STUDENTS. BY A JAMES L. BISHOP, Author of « Treatise on Insolvent Debtors, etc. NEW YORK: BAKER, VOORHIS & COMPANY. 1893. BY JAMES -L. BISHOP. PREFACE. This book is the outcome of a special course of lectures on Code Practice, delivered at 'Columbia Law School during the session of 1891-92. The lectures, as originally prepared, have been revised and somewhat enlarged, and are here presented in the form of a treatise for the use of students. The design is to present a full outline of the steps in an ordinary civil action following the provisions of the Code. The subject has been exhaustively treated in the standard works on practice in which the numerous authorities bearing upon the various topics discussed are digested and arranged for the use of the practitioner. This book makes no pretence to such elaboration of cases. Its mission is to introduce this subject with appropriate simplicity of expression and illustra- tion to those who are entering upon their professional studies and work, and to state general features and elementary prin- ciples in a manner helpful to the more detailed investigation which the needs of actual practice may require. (ih) CONTENTS. CHAPTER I. Introductory Review of Procedure previous to the Code. i. Historical periods — Colonial courts. 2. First Constitution, 1777 — Court of Errors — Supreme Court — Court of Chancery. 3. Actions at law — Capias ad re- spondendum. 4. Arrest in common-law actions. 5. Bail. 6. Distringas. 7. Outlawry. 8. Forms of actions at law — Per- sonal actions. 9. Common-law pleadings. 10. Trials of common-law actions. n. Executions. 7 2. Writ of error. 13. Real actions. 14. The Court of Chancery — Its officers. § 15 16 17 18 '/ '9 1/ 20 21 22 i 23 [ 24 t 25 V 26 c 27 28. Commencement of suit in equity. Pleadings in equity. Equitable remedies. Enforcement of decrees in equity. Courts of Common Pleas and other courts. Early compilations of statutes. Attachment against absconding debtors. Relief of imprisoned debtors. Second Constitution, 1823. Second period — English law re- form. The Revised Statutes. Non-imprisonment Act. Courts and procedure from 1830 to 1846. Commissioners to codify the laws. CHAPTER II. Courts: their Judges and Officers. § 29. Courts of Record and not of Record. 30. Cases not provided for by the Code. 31. Sittings of the court to be open. 32. Court not to sit on Sunday. 33. Some special powers of Courts of Record. CONTEMPTS OF COURT. § 34. General. 35. Criminal contempts. 36. Proceeding for punishment of criminal contempt. 37. Civil contempts. 38. Proceedings to punish for civil contempt. (v) CONTENTS. § 39- 40. 4«- 42. 43 Limitations on arrest in civil actions. The general rules of practice. Formalities of writs and pro- cess. Continuance of proceedings in case of vacancy or changes in judge. Judges and officers acting judi- . cially. ATTORNEYS AND COUNSELLORS-AT-LAW. 44. Admission to practice. 45. Powers. 46. Compensation. 47. Attorney's lien. 48. Statutory proceedings affecting attorneys — Purchase of claims and inducement of litigation. 1 49. Substitution. 50. Disbarment. 51. Proceedings on death or re- moval of attorney. SHERIFFS. 52. Service of process. 53. Power of the county — Posse comitatus. 54. Sheriff's jury. 55. Arrests by sheriff, conveying to jail and committing a prisoner. 56. Jail liberties. 57. Escapes. 58. Assignment of bond for jail lib- erties. 59. Coroners. CHAPTER III. Supreme Courts, including the Circuit Court. § 60. Organization and terms of court. 61. Judicial districts. 62. Judicial departments. 63. General Terms. 64. Special Terms. 65. Chambers. § 66. Circuit Court. 67. Court of Oyer and Terminer. 68. Jurisdiction of Supreme Court. 69. When State courts are without jurisdiction. 70. Powers of Justice of Supreme Court. CHAPTER IV. Limitation of Time of Enforcing a Civil Remedy. 71. General observations. 72. Statutes of acquisition and ex- emption. 73. Statutory. 74. Trusts. 75. The United States courts. 76. Limitations by contract — Pre- 77 73. Limitations by contract ■ sumption of payment. Constitutionality. Construction of statute. ACTIONS FOR RECOVERY OF REAL PROPERTY. §79- 80. 81. 82. Actions by the State or its grantee. Limitations in action to recover real property by an indi- vidual. Adverse possession. Relation of landlord and tenant as affecting adverse posses- sion. CONTENTS. vn § 83. Descent cast. 84. Disabilities. ACTIONS OTHER THAN FOR RECOVERY OF REAL PROPERTY. 85. Presumption of payment of judgments. 86. Actions for redemption from a mortgage — Pledged property. 87. Action upon a sealed instru- ment — Twenty years. 88. Actions which must be brought within six years. 89. Within three years. 90. Within two years. 91. Within one year. 92. Short statute of limitations against administrators and executors. 93. Actions on accounts. 94. Actions not otherwise provided for. 95. Personal actions by the State. 96. Actions against non-resident. 97. Death without the State — Rights of action arising between death and the granting of let- ters. § 98. What takes a case out of the op- eration of the statute. 99. Disabilities. GENERAL PROVISIONS. 100. When action deemed com- menced. 101. Attempt to commence an action. 102. When the defendant is without the State. 103. Death of claimant or defendant. 104. Disabilities by reason of war. 105. Limitation where judgment is reversed. 106. Stay by injunction. 107. Actions by principal against agent for misconduct. 108. Disabilities must exist when right accrues. 109. When two or more disabilities co-exist, no. The necessity for a demand as bearing upon the statute of limitations. in. In case of arbitration. 112. When action is discontinued after counterclaim. 113. How statute pleaded. 114. Application of statute. CHAPTER V. Commencement of Action. 115. Actions and special proceedings defined. 116. Jurisdiction of the person. 117. Contents and form of the sum- mons. n8. Service of summons — with no- tice — with complaint. 119. Defendant's appearance. 120. Effect of voluntary appearance. 121. Unauthorized appearance. 122. Within what time the defend- ant must appear, answer, or demur. 123. Notice of object of action. 124. Personal service of summons. 125. When service will be set aside. § 126. Service on infant defendant. 127. Service upon an incompetent person. 128. Personal service — Domestic and foreign corporations. 129. Service of other process — Proof of service. 130. Substituted service and service by publication. SERVICE BY PUBLICATION. 13 1. Jurisdiction acquired by service other than personal. 132. Cases on which service by pub- lication may be ordered. Vlll CONTENTS. § 133. Upon what papers the order is granted. 134. The order of publication. 135. Steps to be taken after order. § 136. Service when complete — Proof of service. 137. When defendant served ^i publication may defend. CHAPTER VI. Parties to an Action. § 138. Division of the subject. § 147. Unincorporated associations. PARTIES PLAINTIFF. 139. Persons whose right of action is specially provided for — In- fants. 140. Incompetent persons : Luna- tics, idiots, and habitual drunkards. 141. Married women. 142. Real party in interest. 143. Executor and administrator. 144. Trustee of an express trust. 145. A person expressly authorized by statute to sue. 146. When the right of action is in more than one. PARTIES DEFENDANT. 148. Defendants jointly liable. 149. Joint and several obligations on contract. 150. Actions in tort against two or more. 151. Infant defendants. 152. Unknown defendants. 153. Bringing in additional parties. 154. Change of parties. 155. Parties prosecuting or defend- ing as poor persons. CHAPTER VII. Pleadings, including Counterclaims. §156. Foims of action. 157. Actions distinguished by sub- ject-matter. 158. Election of remedies. 159. Pleadings as distinguished by their subject-matter. GENERAL RULES OF PLEADING. 160. Every material fact must be pleaded. 161. Facts should be pleaded, and not evidence of the facts. 162. Facts and not conclusions of law should be pleaded. 163. Facts should be stated accord- ing to their legal effect. 164. It is not proper to anticipate a defence and negative a possi- ble plea of the adverse party. § i°5 That which the law implies need not be alleged 166. Matters judicially noticed need not be pleaded. 167. Every statement of fact should be made concisely. SPECIAL RULES AND PROVISIONS AP- PLICABLK TO PARTICULAR SUBJECTS AND CASES. 168. Rights of action created by statute. 169. Actions upon an account. 170. Instruments for the payment of money only. 171. Pleading conditions precedent. 172. Judgment, how pleaded. 173. Pleadings in libel and slander. 174. Entire cause of action. CONTENTS. SPECIAL RULES IN REFERENCE TO THE CAPACITY IN WHICH THE PARTY PLEADS. § 175. Executors and administrators. 176. Guardian. 177. Receiver. 178. Corporations. 179. Unincorporated associations. COMPLAINT. 180. The formal requirements. 181. The statement of the cause of action. 182. Form of allegations. 183. Joinder of causes of action. 184. Mode of pleading separate causes of action. 185. Demand of judgment. 186. Interlocutory and final judg- THE ANSWER. 187. The form of the answer. 188. Several answers or counter- claims, legal or equitable, allowed. 189. Equitable defences. 190. Partial defences. 191. Denials — Forms of denials. 192. Proof under general denial. 193. New matter. 194. Counterclaim. 195. A counterclaim must tend in some way to diminish or de- feat the plaintiff's recovery. 196. The counterclaim must be a cause of action. 197. The cause of action must be one arising out of the con- tract or transaction set forth in the complaint as the foundation of the action or connected with the subject of the action. 198. Counterclaim under subdivision 2 of § 501. 199. Rules in reference to actions upon assigned claims. 200. Equitable setoff. § 201. Counterclaims in actions brought by plaintiff as trus- tee or for the benefit of an- other. 202. Counterclaim, when and how pleaded, and effect of plead- ing. 203. Pleading between co-defend- ants. 204. When a reply is needed. 205. What the reply may contain. 206. Reply required by court. 207. Effect of failure to reply. DEMURRER. 208. When demurrer may be inter- posed. General rules as to demurrer. Demurrer to the complaint. Demurrer to counterclaim. 212. Demurrer to answer. 213. Demurrer to reply. Permission to amend after de- cision of demurrer. 209 210 211. 214. PROVISIONS GENERALLY APPLICABLE TO PLEADINGS. 216. Verification of pleadings — When must be verified. 217. By whom the pleadings should be verified. 218. Form of verification. 219. Bills of particulars. 220. Practice to procure bill of par- ticulars. 221. Amendments of course before trial. 222. Amendment of pleading on the trial. 223. Frivolous pleading. 224. Sham answer or defence. 225. Irrelevant, redundant, and scan- dalous matter. 226. Indefinite and uncertain allega- tions. 227. Service of pleadings and ex- tension of time to plead. CONTENTS. CHAPTER VIII. Arrest pending the Action. i 228. General observations. 229. Actions in which defendant may be arrested. 230. How this section bears upon the pleading. 231. Substituted provision for writ of ne exeat. 232. Privilege from arrest. 233. Order of arrest — When and by whom granted. 234. Proofs necessary to procure order of arrest. 235. Undertaking on arrest. 236. Order of arrest. 237. Application to vacate order. 238. Supersedeas. I 239. Bail under § 573. 240. Bail to jail liberties. 241. Defendant's undertaking and justification. 242. Qualifications of bail. 243. Justification of bail. 244. Deposit. 245. Liability of sheriff. 246. Charging and discharging bail. 247. Execution before action against bail. 248. Death — Discharge of principal — Surrender. CHAPTER IX. Injunction. : 249. Denfinition. 250. Granting injunction is discre- tionary. 251. Power to continue injunction pending appeal. 252. Injunction when right depends upon the nature of action. 253. When the right depends upon extrinsic facts. 254. When application for injunc- tion to be made. 255. By whom order may be granted. 256. When notice required. 237. Proofs necessary to procure in- junction. § 258. Form of order. 259. Injunction can only be granted against a party. 260. Service of the order. 261. Punishment for violation. 262. Security. 263. The ordinary undertaking un- der § 620. 264. Security in special cases. 265. Damages sustained by injunc- tion. 266. Vacating or modifying the or- der. 267. Vacating injunction on notice. 268. Vacating an injunction order on giving security. CHAPTER X. Attachmemt of Property. j 269. General. 270. Property in custodia legis. 271. In what action it may be granted. § 272. What must be shown to pro- cure the warrant. 273. Debt over and above counter- claim. CONTENTS. § 274. The grounds of attachment — Foreign corporation and non- resident. 275. Concealed and absconding debtors. 276. Fraudulent disposition of prop- erty. 277. When and by whom the war- rant may be granted. 278. Affidavits to be filed. 279. Undertaking on attachment. 280. Contents of warrant. 281. Execution of the warrant. 282. Shares of stock in foreign cor- poration. 283. Property which has been fraud- ulently assigned. 284. Certificate and examination. 285. Actions in aid of attachment. 286. Inventory — Perishable goods. 287. Proceedings when attached property is claimed by third person. 288. Care of attached property. 289. Motion to 'vacate or modify warrant or increase security. 290. How motion made— Opposing by new proofs. 291. When prior motion will not prejudice subsequent motion. 292. Discharge of attachment upon undertaking. 293. Attachment of partnership prop- erty. 294. Execution against attached property. CHAPTER XI. Replevin. § 295. History of the writ of replevin. 296. Replevin and detinue. 297. When replevin can be main- tained. 298. For what replevin will lie. 299. When replevin cannot be main- tained. 300. Commencement of action. 301. Requisition and affidavit. 302. Motion to set aside requisition. 303. How the chattel is to be re- plivied. 304. How replevied chattel kept. 305. Exception by defendant to plaintiff's sureties. § 306. At what stage of the action the requisition may issue. 307. When the goods are to be de- livered by sheriff and his lia- bility terminated. 308. Claim of title by third person. 309. Second and subsequent re- plevin. 310. Replevin and arrest. 311. Proceedings in the action apart from the requisition. 312. Verdict. 313. Judgment. 314. Contents of execution and en- forcement of undertaking. CHAPTER XII. Receivers and other Provisional Remedies. § 315. General observations. 316. When receiver appointed. 317. Mode of appointment. 318. The order of appointment. 319. Who may be selected as re- ceiver. 320. Permanent receiver by or after judgment. § 321. Appeal. 322. Powers of and control over re- ceivers. 323. Receivers of corporations. 324. Receivers of corporations un- der the Code. 325. Actions against directors, etc , for misconduct. XI 1 CONTENTS. § 326. In a. judgment creditor's ac- tion for sequestration. 327. In action to dissolve a corpo- ration. 328. In action to annul a charter. 329. On voluntary dissolution of a corporation. § 330. In an action brought for the foreclosure of a mortgage on corporate property. 331. In an action to preserve as- sets. 332. Deposit — Delivery or convey- ance of property. CHAPTER XIII. Miscellaneous Interlocutory Proceedings. MISTAKES, OMISSIONS, DEFECTS, IR- REGULARITIES. § 333. Errors before and after judg- ment. 334. Jurisdictional defects and ir- regularities. 335. Amendments as to parties. 336. Amendment of pleading. 337. Right to amend discretionary. 338. Amendment of other proceed- ings. 339. Relief against omissions and mistakes. 340. Amendment of officer's return — Original supplied by copy — Alteration without order not permitted. 341. Affidavits, — requisites of, de- fects in. 342. Bonds and undertakings — Amendment. TENDER AND OTHER OFFERS. 343. Generally. 344. Tender under the Code. 345. Effect of sufficient tender. OFFER TO ALLOW JUDGMENT. 346. Offer by plaintiff. 347. Effect of refusal of offer. 348. Acceptance. OFFER TO LIQUIDATE DAMAGES — PRO- CEEDINGS UPON DEATH OR DISABIL- ITY OF A PARTY. 349. Survival of causes of action. 350. Provisions of the Code as to abatement. Continuance upon death of a sole party. When one of several parties dies. Transfer of interest or devolu- tion of liability. 354. Death of part of parties when part of cause of action sur- vives. Death of a party after verdict. Action for personal injury not to abate by death. 351- 352. 353- 355 356 MOTIONS AND ORDERS. 357. Definitions. 358. When motion in Supreme Court heard. 359. motion papers. 360. Order to show cause. 361. What judges may make ex parte orders. 362. Stay of proceedings not to ex- ceed twenty days. 363. Application for order after de- nial of prior application. 364. Second application for judg- ment. 365. Motion costs. GENERAL REGULATION RESPECTING TIME. 366. How time enlarged before its expiration. 367. Relief after time has expired. 368. When time cannot be extended. 369. Actions brought by plaintiff for the benefit of others. 370. How time computed. CONTENTS. Xlll PREFERRED AND DEFERRED CAUSES. § 371. What causes may be preferred in time of trial. 372. How the preference secured. SERVICE OF PAPERS. 373. Personal service. 374. Service other than personal. 375. Service on non-resident. DISCOVERY AND INSPECTION. 376. When discovery and inspection may be had. 377. The practice — Petition and or- der. GENERAL REGULATIONS RESPECTING BONDS AND UNDERTAKINGS. § 378. Acknowledgment. 379. By whom bond or undertaking may be executed. 380. Form of undertaking — Affidavit of sureties — Approval. 381. Prosecution of bond to the people, and other provisions. CONSOLIDATION OF ACTIONS — INTER- PLEADING BY ORDER — DISMISSAL FOR NEGLECT TO PROCEED — ORDER FOR TRIAL OF ISSUES BY JURY — FIL- ING PAPERS — SPECIAL REFERENCES. CHAPTER XIV. Evidence. COMPETENCY OF A WITNESS. § 382. Interest does not disqualify. 383. Personal transactions with a deceased person. 384. Analytical statement of § 829. 385. Testimony of party dying after trial. 386. Husband and wife. 387. Conviction for crime. 388. Professional communications — Clergyman. 389. Professional communications — Physician. 3go. Attorney and counsellor. 391. Waiver of privilege. COMPELLING ATTENDANCE OF WITNESS. 392. Mode of serving a subpoena is- sued out of a court. 393. Penalty for disobedience. 394. Subpcena duces tecum and order to produce book of account. 395. Notice to produce papers on the trial. DEPOSITIONS TAKEN AND TO BE USED IN THE STATE. § 396. Examination of a party or wit- ness before trial. 397. Examination of a party before trial. 398. Taking of a party's examina- tion in his own behalf. 399. To perpetuate testimony. 400. Examination of witnesses de bene esse. 401. The order. 402. Vacating the order. 403. Examination, how taken. 404. Deposition to be used on mo- tion. DEPOSITION TAKEN WITHOUT THE STATE FOR USE WITHIN THE STATE. 405. Open commission. 406. Letter rogatory. 407. Suppression of deposition. XIV CONTENTS. CHAPTER XV. Trials. PLACE OF TRIAL. § 408. Actions to be tried where the subject is situated. 409. Actions tried where cause of ac- tion arose. 410. Actions to be tried at the place of residence. 411. Change of place of trial. ISSUES AND THE MODE OF TRIAL THEREOF. 412. Constitutional provisions as to trial by jury. 413. Issues defined. 414. When the issue is legal and when equitable. 415. Cases in which trial by jury is a right. 416. Cases in which trial by jury of certain issues must be di- rected. 417. Trial of specific questions by jury in equity suits. 418. Waiver of right of trial by jury. 419. Notice of trial and note of issue. 420. Inquests. 421. Regulations as to procedure on trial. PROCEEDINGS ON JURY TRIAL. Application for postponement. Drawing the jury — Challenges. Motions on the pleadings. The right to open and close. Objections and exceptions. Voluntary nonsuit. 428. Withdrawing a juror. 429. Compulsory nonsuit. Directing a verdict. Summing up. Requests to charge. Exceptions to the charge. General verdict — Special ver- dict. 435. Disagreement of the jury. 422. 423. 424. 425- 426. 427. 430. 431 432. 433- 434- 436. Receiving the verdict — Polling; the jury. 437. Entering the verdict. TRIALS WITHOUT A JURY. 438. Reference of the issues. 439. Reference by consent. 440. Compulsory reference. 441. What constitutes a long ac- count. 442. When the trial will require the examination of a long ac- count. 443. Who may be appointed referee. 444. References to take an account or report facts. 445. Proceedings on trial before the court or a referee. 446. Oath of referee. 447. Requests to find. 448. Decision of the court— Report of referee. 449. Decision of the court — Report of the referee, when to be made and filed. CASE AND EXCEPTIONS. 450. Exceptions. 451. To what findings exception may be taken. 452. A case — A case containing ex- ceptions. MOTIONS FOR A NEW TRIAL. 453. Motions at Trial Term. 454. Motion for a new trial at Spe- cial Term. 455. New trial on the ground of sur- prise. 456. New trial for newly discovered evidence. 457. New trial for misconduct of jury and irregularities. 458. Motion at General Term for judgment — For a new trial. CONTENTS. xv CHAPTER XVI. Judgments. § 459. Final and interlocutory judg- ments. 460. Entry of judgment. 461. Judgment roll ; how prepared ; what to contain and how en- dorsed. 462. Judgment book. 463. Docketing the judgment. 464. Form of judgment. 465. Against whom judgment may be entered. 466. Extent of relief granted. 467. Authority for the entry of judg- ment. 468. When the whole issue is not de- termined upon one trial. 469. Judgment after trial of specific questions of fact. 470. Judgment after trial of specific questions of fact by referee. 471. Judgment upon motion for new trial at General Term. 472. Judgment on verdict subject to the opinion of court. 473. Judgment on affirmance of in- terlocutory judgment. 474. Final judgment after interloc- utory judgment. JUDGMENT BY DEFAULT. 475. How judgment by default may be entered. 476. Proceedings when judgment entered by default without application to the court. 477. Application to the court for judgment by default ; when necessary. 478. Proceedings on application to the court for judgment by de- fault. 479. Judgment in case of service not personal, and in cases of at- tachment. §480. When judgment cannot be taken against infant. LIEN OF THE JUDGMENT. 481. How the lien is acquired, and when it attaches 482. Suspension of lien. 483. When and how lien restored. 484. Satisfaction of judgment. JUDGMENTS BY CONFESSION. 485. When and by whom judgment may be confessed. 486. Statement for confession. 487. How to be executed. 488. When and how judgment to be entered. 489. Execution where the judgment is not all due. 490. Vacating the judgment. SUBMISSION OF A CONTROVERSY UPON FACTS ADMITTED. 491. Controversy, how submitted without process. 492. How the submission is made and proceedings thereon. VACATING AND SETTING ASIDE JUDG- MENTS. 493. When judgment may be set aside for irregularity. 494. Motion to set aside judgment for error in fact. 495. Motion to vacate a judgment for fraud or as void. 496. Within what time the motion must be made. 497. Motion ; by whom made. XVI CONTENTS. CHAPTER XVII. Appeals. .§ 49S. General. 499. Who may appeal. 500. How taken. 501. Appeals from final judgment. 502. Appeals from orders. ' 503. Appeal from order made by a judge out of court or in a special proceeding. 504. How and when the appeal is taken. 505. Staying proceedings on the judgment or order appealed from. 506. Proceedings by appellant be- fore argument. 507. The hearing. 508. Judgment or order on appeal. APPEALS TO THE COURT OF APPEALS. 509. Constitution of the Court of Appeals. 510. Jurisdiction of the Court of Ap- peals. • 511. How the right of appeal is lim- ited by the amount involved. 512. Review of an actual determina- tion. 513. Appeal from a final and inter- locutory judgment. § 514. Appeals from orders. 515. Appeal from an order refusing a new trial. 516. Appeal from an order granting a new trial. 517. When the taken. appeal must be 518. Appeal — How perfected. 519. Stay of proceedings pending appeal. 520. Form of the undertaking. 521. Exception to sureties. 522. Deposit in lieu of undertaking. 523. New undertaking. 524. Effect of giving the undertak- ing and taking steps neces- sary to stay proceedings. 525. The return. 526. Preparation of case — Printing and serving papers. 527. Bringing on the appeal and argument. 528. What questions are brought up for review, 529. Review of questions of fact on trial by court or referee. 530. Judgment or order on appeal. 531. Remittitur. 532. Restitution. CHAPTER XVIII. Executions. § 533- Upon what judgment execution may issue. 534. When judgments enforced by punishment for contempt. 535. When execution may be issued of course. 536. When leave to issue execution is required. 537. After death of judgment debtor who has died since entry of judgment. 538. Requisites of the execution. 539. Requisites of execution against property. 540. Requisites of execution where a warrant of attachment has been levied. 541. Execution for delivery of chat- tel. 542. To what counties execution may issue. To whom execution directed. 543- 544- Duties of sheriff in executing the writ. CONTENTS. XVll § 545. Exempt property. 546. Military pay — Testimonials — Pensions. 547. Other exemptions — Burying- ground. 548. Homestead exemption. LEVY AND SALE OF PERSONAL PROP- ERTY. 549. When lien attaches to personal property under execution. 550. How levy made. § 551. Dormant executions. 552. What may be levied on. 553. Order of preference and attach- ments as to executions. 554. The effect of a valid levy. 555. When property levied upon is claimed by a third person. 556. Proceedings on sale under exe- cution. SALE AND REDEMPTION OF REAL PROPERTY — EXECUTION AGAINST THE PERSON. CHAPTER XIX. Costs. § 557. When the plaintiff is entitled to costs of course. 558. When the defendant is entitled to costs of course. 559. When there are more defend- ants than one. 560. When costs are discretionary. 561. Costs where several actions are brought on the same instru- ment. 562. Interlocutory costs on issues of law. 563. Costs when there are several is- sues of fact. 564. After discontinuance on answer of title. 565. Costs on motion. 566. Costs on appeal from final judgment. 567. Costs on appeal from interlocu- tory judgment or order. 568. Costs in special proceedings. 569. Costs in action brought by the State on the relation of a pri- vate individual, or for the benefit of a county, etc. 570. Costs against school trustees or supervisor. 571. Costs against a municipal cor- poration. 572. Costs in an action by or against an executor or trustee. 573. Costs where the action is pros- ecuted in the interest of an- other than the plaintiff of record. 574- 575- Costs against an infant plaintiff. Certificate for costs. FIXING THE AMOUNT OF COSTS. 576. The amount of costs generally. 577. Additional allowance to plain- tiff in certain cases. 578. Additional allowance to either party in difficult case. 579. Costs upon adjournment of the trial. 580. What disbursements included in costs. 581. Double costs to plaintiff or de- fendant. 582. Costs on settlement. TAXATION OF COSTS. 583. Taxation. How costs taxed and allowance computed. Notice of taxation. Review of taxation. 584- 585. 586. SECURITY FOR COSTS. 587. When defendant may require security for costs. XV111 CONTENTS. § 588. Security for costs for causes arising after action. 589. Security in the discretion of the court. 5go. Order for security. 591. The undertaking — Justification of sureties and allowance. 592. Order for additional security. 593. Effect of failure to give secu- rity. 594. Liability of attorney for costs. CHAPTER XX. The Superior City Courts and the City Court of New York. THE SUPERIOR CITY COURTS. i 595- The courts included in this designation and their consti- tutional powers. 596. General jurisdiction of the Su- perior Courts. 597. Superior Court of the City of New York. 598. Court of Common Pleas for the City and County of New York. 599. Superior Court of Buffalo and City Court of Brooklyn. CITY COURT OF NEW YORK. 600. Jurisdiction. 601. Certain sections of the Code do not apply to this court. 602. Time for service of certain no- tices in this court. § 603. Notice of trial — Note of issue. 604. Relief from imprisonment. 605. Summons — Time to answer. 606. When warrant of attachment may issue. 607. Service of summons by publi- cation. 608. Commission to take testimony. 609. Judgment in favor of working- woman. 610. Counterclaim. 611. Marine cases. 612. Appeals to the General Term. 613. Appeals to the Court of Com- mon Pleas. 614. Appeals to the Court of Com- mon Pleas — When and how taken. 615. Appeal to the Court of Appeals. SECTIONS OF THE CODE OF CIVIL PRO- CEDURE CITED. SECTION PAGE i-4 3° 1 3= 6 32 7 33 8-14 33 8 34 10 36 11 36 14 3 6 IS 39 16 456 17 39 18 39 22 40 23 40,461 24 40, 461 25 40 26 40 46-54 4i 56 42 65 50 66 44. 45 67 49 68 49 69 49 70-81 47 101-103 5° 104-107 51 ic8 52, 256 lop 52, 256 iic-119 5} in 204,219 119 214 145-148 53 149 54, 219 150 54 152 54 155-159 54 158 223 160-171 55 160 223 172-1S1 55 173 465 190 435>44i, 444, 445 191... 441,442,443,445,509 192 222 194 434 201 223 217 60 219 58 219-221 58 230 5S SECTION PAGE 232 58 235 62 336 62 339 62 24I 62 263 5°4 264 506 265 507 266 507 267 507 268 104 269 507 271 5°7 272 507 278 508 281 508 286 509 287 508, 509 292 509 3'S 5io 316 510 35i 334 362-364 67 363 506 365-368 69 365 75 369-372 70 370 72 373 73 374 73 375 73 376-378.... 74 376 460 379 69, 75 403 89 401 89 402 9 } 403 75,88,90 404 90 405 90 406 91 407 9i 408 91 409 92 410 74, 9 2 4'i 93 412 94, 379 413 94 4'4 94, 67 415 95 416 96, 97 417 98 SECTION PAGE 4l8 98, 513 419 99 420.... 99,411,414,415,416 421 99 423 102 424 IOO 425 I03 426 104 427 105 428 105, 106 429 105 431 I°6 4 12 106 433 107 434 107 435 108, 419 436 108 437 109 438....... 88,110,418,511 439 i" 440 112 441 i'3 442 113 443 114 444 114 445 "4 446 125 447 128 448 125, 319 449 122,124 45° 120 45» 134 452 135 453 136, 1S7 454 130, 484 455 I3 1 458 136 459 136, 49 s 460 136 468 117 469 "7, 49 s 47° 117 47i ] 3 2 472 118 473 I3 2 474 n8 475 "8 476 118 478 153 479 I02, 2CO 4Sl 143, 154 482 154 (xix) XX SECTIONS OF CODE OF CIVIL PROCEDURE CITED. SECTION PAGE 483 154 4 8 4 155 487-5OO l6l 487 187 488-490 180 488 181 492 179 493 179. 185 494 ■■ 179. 184 495 '79 49° 185 497 185 499 181 501 167, 168, 169, 171 502 !7 2 . 174 503 176 5°S 174 5°° *74 5°7 162. 175 5°9- ■• 170 512 17 6 5M • 177 SIS 178 51° 178 520 201 521 17° 522 178 523 187, 188 524 155. 190 52s 189 526 190 528 1 ~ 529 189 53° 144 53 1 144, 19 1 532 147 533 147 534 146 535 148 537 195, 512 538 I9°> 512 539 J 94 54° 194 541 194 542 193 543 J 94 544 186 S4S r 98 546 199 548 205, 212 549... 205,215,217,276,477 5SO 212, 217, 218, 477 55i 215 553-555 2I 3 55° 215 557 215 559 216 561 217 567 217 568 218 572 218 573 2I 9 574 219 575 220 576 221 577 221 S78 221 579 221 SECTION PAGE 580 221, 501 581 222 582-586 222 591 223, 224 S9 2 224 593 224 597 224 601 224 602 226 603 226, 230, 231 604 229, 230 605 231 606 231 607 232 608 231 609 231, 232 610 233, 234 611-625 234, 511 6n 235, 511 612 235 616 235 617 235 619 235, 511 620 235 621 236 623 236 625 238 626 238 629 239 635 241, 242,. 260, 419 636.-242, 243, 244, 245, 246, 5" 637 260 638 248, 249 639 249 640 249 641 250 642 249 644 250 645 250 646 252 647 252 648 252 649 250, 251, 252 650 253 651 253 654 255 655 254 656 255 657 256 658 256 674 *57 675 257 676 257 677 2 54 678 254 679 254 6S0 254 68r 255 682 258 683 250, 259 686 260 687 260 688 260 689 261 693 261 696 261 706 262, 464 SECTION PAGE 707 241, 464 708 464 713 281, 282, 284, 285 714 284, 285 715 285 717 294 7l8 294,457 721 295,296 722 ....: 295 723 295, 296, 297, 298 724 295,300,427 725 3°° 726 300 727 3°o 728 ; . 300 729 3 DI 730 301 73'-735 3°ii 3°2 732 3°3 733 303 734 3°3 736 3°6 737- 30 6 .3O7 738-740 304 738 305,306,411 739 305,306,411 740 305 745 294 7Si 294 754 294 755-766 307 75S 308 756 310 757 309 758 129,310 759 3io, 311 760 311 763 3" 764 312 765 428 767 31 3 768 312 769 238, 312 77° 59, 312, 435 77i 312, 3'3 772 3 ] 5 773 316 775 316, 437 776 316 777 317 778 317 779 317. 485, 487 780 314, 45 2 780-788 317, 439 781 317. 3 T 8 782 317, 318 783 394, 39° 784 319, 432 785 319 786 128, 319 787 320 789-795 320 793 321 796-802 321 797 321 798 201,314,322 799 ioi,33l SECTIONS OF CODE OF CIVIL PROCEDURE CITED. xxi SECTION PAGE 800 323 801 322 SOS 3 2 3,324 804 323 805 *325 806 326 810 326 8" 327 812 217, 221, 328 813 328 814 328 815 328, 329 816 328 817-819 329 820 329 821 331 822 331 823 332,333.371 824 333, 4°6 825 333 827 285, 333, 486, 511 828 334 829 334.335,344 830 344 831 34S 832 346 833 347 834 347 835 348 836 348,349 852 350 853 350 854 35i 85S 35i 856 351 8S7 35i 860 214 866 352 867 351 868 352 870 353, 356 871 353. 356, 358 872. • 353, 354, 356, 357, 358 873 358 880 359 883 359 885 360 894 362 895 362 897 362 910 362 913 362 963 368,369 964 164,179,369 968 370,371, 385 969 369, 385 970 333.370,371 97' 37i, 412 974 163,370 976 370 977 372, 373 980 373 98i 374 982 364,367 983 365, 367 984 4 .. 365 985 366, 367 986 : 366 SECTION PAGE 987 366,367 992 394 993 394, 395 994 394 995 378,382 997 395, 396, 399, 438 998 399, 401 999 397 1000 403, 404 1001 403, 404, 443 1002 399 1007 398 1008-1026 385 1009 372 1010 393 ion 386, 388 1012 386 IOI3 386, 5II iois 389,486,511 1016 391 1017 389 1018 389 1019 393 1021 392,393,411 1022 392, 393, 410 1023 391 i02 4 389 I025 389 1026 389 IO27-H62 375 1042 375 1166 376 «7i 375 "76 377 "77 376 "78 376 "80 376, 394 1181 384 "82 378, 384 "85 413 "86 383, 41 1 "87 383,384 "88 383 "89 384, 411 1200 405 1202 405 1203 405, 410 1204 409 1205 409 1206 409 1207 160,410 1212 414, 415, 417 1213 188, 416, 417 1214 417 1215 4'7 1216 418 1217 110,418 1218 419 1219 4^5, 416, 4*7 1221 411, 412, 413 1222 411 1225 412 1226 413 1227 413 1228 410,411 1229 411 1231 4 r 4 1233 4" 1234. 1236. 1237 1238. 1239- 413 407 406 , 406 406 240 456, 477 1241 212, 456,457 1246 409 1247 408 1248 408 1250 420 1251 420 1252 421 1254 420 1256 421 1257 421 1258 421 1259 421 1260 421 1261 422 1262 422 1265 422 1266 422 1267 422 1273 422 1274 423,424 1275 424, 425 1276 424, 425 1277 424, 425 1278 423 1279 312, 426 1280 427 1281 427 1282 300, 427 1283 428, 430 1284 429, 430 1285 429, 430 1286 1 . . 429 1287 430 128S 430 1289 430 i2go 429 1291 429 1293 43i 1294 432 "95 432 1297 432 1298 432 1299 432 1300 432,43s 1301 443 '302 433,416 r 303 433,436 1306 450 1307 449 1308 450 I3'° 4So 13" 45o, 45i 1315 45i 1316 443 1317 44°, 454 1323 455 1325 447 1326-1335 437 1326 447 1327 448 1328 448 1329 448 XXli SECTIONS OF CODE OF CIVIL PROCEDURE CITED. SECTION PAGE 133° 44S '33 1 449 I33 2 449 1334 449 1335 449 1337 453 1338 445, 453 1339 451 1346 3 12 . 433 1347 434 1348 435 1349 3 12 . 443 1351 43 6 , 437 1352 436,437 1353 437. 438 1355 435 1357 435 1361 458 1362 4 6 5 13 6 3 46s 1564 ,--.- 461 I3 6 5 458, 4 6 4 1366 461,462,466 i3 6 7 461, 462,464 1368 462 1369 462 1370 463 1372 477- 478 1373 464 1375 458 1376 458 1377 458, 459 1378 459 1380 460 1381 460 1382 458 13S4 474 138s 474 1386 474 13R9 466 139° 466 1391 466 I39 2 • • ■ 4 6 7 1393 4 6 7 1394 467 1395 467 1396 467 1397-1404 467 "398 46S 1399 46S 1400 468 1401 468 1402 468 1403 468 I4°5 468 1406 471 1408 471 1409 469 1410 470 14 11 47° 1412 47° 1413 471 1414 47 1 1418-1427 472 1419 472 1421 z 5 6 > 473 1422 473 1424 473 425- 427. 428. 429. 434- 435- 43 6 - 437- 438. 433- 441. 446. 447- 448. 45°- 452 453- 463- 1471. 475- 1487- 488. 489 490. 491. 1492. 493- 494- 495- 496. 497- 681. 689. 690 691 . 693- 694. 695- 696 , 697.. 256, 478, 478, 270, 271, 269, 270, 699 270,271, 700 701 265. 702 703 704 7°5 273, 273, ?c6 273, 274, 708 7°9 7io 275, 7" 7T2 270, 274, 713 714 7i7 718 719 720 721 722 723 725 726 727 728 730 PAGE 473 474 474 474 475 475 475 475 475 475 475 4^6 476 476 476 476 4 76 476 477 477 477 479 479 479 479 47S 473 478 477 155 157 236 157 269 265 270 2 74 272 270 271 272 274 272 272 273 273 274 274 2 75 2 75 2 75 276 2 75 276 276 2 7 6 27S 27S 27S 276 277 2 77 27S 278 279 4C14 464 279 SECTION PAGE 1731 279, 464 1732 4 6 4 1733 274, 280 1734 274. 280 1735 2S0 1757 i38, 370 1769 456 1772 457 1773 457 1775 I52> 2+6 1778 202, 319 1780 246 1781 288, 2S0 1782 289 17S4 288,290 1785 288,290 1786 291 1787 2 JI I78S 29I, 292 I7S9 2Q2 1797 288, 292 1798 292 1806 23I 1808 2S9 1809 231 l8lO 287, 288, 291, 293 1814 124 l8l5 I24, I59 lSl9 II7 l822 80 l82S 461 lS35 489 1836 489, 4OI 1837 482 1843 482 l86S 482 1877 284 1902 482 I907 I48 I908 I48 19IO 123 1919 128 1925 125 1926 125 1932 130, 5°7 1933 I30 1934 463 1935 463 1938 IS7 1947 2S3 1569 4S2 1973 83 1985 48S I986 289 199° 236 2008 350 2085 312 2099 312 213S 312 2150 5^9 2204 509 22C6-2292 39 2269 3=;i 2340 119 2qI0 .... 509 2419-v 288,292, 293 2420 293 2421 293 SECTIONS OF CODE OF CIVIL PROCEDURE CITED. xxiii SECTION PAGE 2423 293 24 2 9 285 2431 292 2432 284 243S 75 2463 284 2464 284 2544 33S 2863 481, 482, 491 2951 486 3^9 6 °i 3160 499, 511 3 lfi i 5" 3162 512 3163 513 3165 513 3166-3169 514 3167 515 3170 515 3171 5i5 3'72 512 3174 512 3'77 5i<5 3178 5»6 3^5 516 3186 5*7 3207-3223 31 3228 480, 483, 485, 486 3229 482,483 SECTION PAGE 3230 483 3231 484 3232 484 3234 485,491 3235 485, 49 1 3236 485, 486 3237 486 323S 486 3239 487 3240 487 3241 488 3242 488 3243 488 3244 488, 491 324S 488 3246 488, 490 3247 49° 3248 49 1 3249 49° 3250 4S0 3251 317, 486, 491, 495 3252 39 1 . 493> 496 3253 492, 453 3 2 54 492 3255 494 3 2 5G 494 3257 494 3258 491, 495 326° 495 ' SECTION PAGE 3262 495, 4 (;6 3 26 3 497 3264 497. 498 3265 498 3266 497 3267 495,490 3268 498, 500 3269 499 327° 499, 5co 3271 5°°, 5 01 3272 500 3 2 73 501 3274 501 3275 501 3276 501 3277 502 3278 502 3296 494 3297 494 3307 273 3318 350, 494 3319 494 33 2 ° 287 3333 9 6 3334 9 6 3335-3338 3339 J 37 3343-152, 207, 232, 243, 503 Code Practice in Personal Actions. CHAPTER I. INTRODUCTORY REVIEW OF PROCEDURE PRE- VIOUS TO THE CODE. § i. Historical periods — Colonial Courts. — The history of the courts of this State and their methods of procedure may- be conveniently divided into three periods : the first period extending from the adoption of the first State Constitution in 1777, to the enactment of the Revised Statutes in 1830 ; the second from 1830 to the establishment of the Code practice in 1848 ; the third from 1848 to the present time, including the existing Code of Civil Procedure, the first part of which went into effect in September, 1877, and the second part in September, 1880. If we go back to colonial times we find little of practical im- portance to our subject. The administration of justice under the Dutch Governors, however fruitful of results in matters of civil polity, has left little or no impression upon our modes of legal procedure. When the English came into control of the Colony in 1664, they brought with them the rules and practice of the common law. We learn with historical rather than with professional interest, that the first general body of law enacted in the Colony, known as "the Duke's Laws," was promulgated in 1665 at an assembly of delegates from the counties of Long Island and Westchester at Hempstead, Long Island. It was not until after the re-invasion of the Dutch in 1673, and the subsequent re-establishment of the English governors in 1674, that under Governor Dugan the first ordinance for the estab- lishment of the courts of the* Colony was adopted (2 R. L. of 1813, Appendix). This ordinance was followed by the colonial 2 REVIEW OF PROCEDURE PREVIOUS TO CODE. [CH. I. act of 1691, and by this enactment and subsequent ordinances the Supreme Court of Judicature was created and perpetuated. This is a matter of more than antiquarian interest, since our existing Supreme Court rests upon this ancient foundation. No constitutional provision nor any subsequent act of legislation has attempted to re-create or re-establish this court, although its powers have been extended and its forms of action have been largely altered. The court thus created was clothed orig- inally with all the powers of the superior English Common Law Courts, that is the Courts of King's Bench, Common Bench and Exchequer. It was the court of original jurisdiction according to the course of the Common Law, and has remained the principal court of original jurisdiction down to the present time. Under the English, in colonial times, equity jurisdiction was vested in the governors of the province, and the governors con- tinued to act as chancellors with some interruption, and with great popular disfavor, down to the time of the Revolution. We have no regular series of reports of decisions before the organization of the State government, and details of practice before that date are not easily accessible. Those who are curi- ous will find an extremely interesting article on the courts in colonial times, written by Chief -Justice C. P. Daly, and printed as introductory to the first volume of E. D. Smith's reports, and a more extended treatment of the subject by Mr. Robei~* Ludlow Fowler, in a series of articles in the 19th volume of the Albany Law Journal. It is enough for our purpose to observe that at the time of the outbreak of the Revolutionary War the judicial system of the Colony consisted of the Supreme Court, to which we have referred, the equity powers exercised by the Governors, and the local courts of Common Pleas in the various counties. § 2. First Constitution, 1777— Court of Errors — Supreme Court — Court of Chancery. — The Constitution of 1777 estab- lished a new court known as the Court for the Trial of Impeach- ments and Correction of Errors. As a Court for the Trial of Impeachments, it was a court of original jurisdiction ; but as a Court for the Correction of Errors, it was an appellate tribunal for the review of judgments taken to it from the Supreme Court, and from decrees of the Chancellor. It was § 2.] FIRST CONSTITUTION, 1 777. 3 composed of the President of the Senate, and the Senators, orig- inally twenty-four in number, afterward thirty-two, the chancel- lor and the judges of the Supreme Court, or a majority of them. The chancellor and judges had no voice in the decision on appeals from their respective courts, but they were required to inform the court of the reasons of the judgment of the court below. This tribunal was manifestly modelled upon the judicial func- tions of the House of Lords. It presented the spectacle, not altogether novel in history, of a tribunal composed of represent- atives of all classes of the community intrusted with authority to review the decisions of judges trained in the law. A large proportion, however, of the senators were lawyers, and many of the opinions written by the judges and chancellors, and found in the volumes of Reports, are of deservedly high repute. The Constitution of 1777 recognized the existence of the Su- preme Court, and the Court of Chancery, and provided that the Legislature should create no other courts except such as should proceed according to the course of the Common Law. It also provided that such parts of the Common Law of Eng- land, and of the Statute Law of England and Great Britain, and of the acts of the Legislature of the Colony of New York, as together formed the Law of the Colony on the 19th day of April, 1775, should be and continue the Law of this State sub- ject to such alterations and provisions as the Legislature of the State might from time to time make concerning the same. (Cons, of 1777, Art. xxxv.). Immediately after the adoption of the Constitution, Mr. John Jay, afterward the first Chief-Justice of the Supreme Court of the United States, was selected as the first Chief-Jus- tice of the Supreme Court of this State. His successors were eleven in number, and the office was finally abolished by the Constitution of 1846. The Supreme Court was at first com- posed of a Chief-Justice and four associate justices. Its powers were not defined, but were assumed as having been derived from and established by the Colonial ordinances above referred to. A Court of Chancery was also established under the au- thority of the Constitution, although that instrument contained no direct provision for its institution. Robert R. Livingston was selected as the first chancellor. The office of chancellor Tvas filled by men of commanding abilities. Mr. Livingston was succeeded by John Lansing, Jr., and he by James Kent, who took office October 25, 1814. After Chancellor Kent, the 4 REVIEW OF PROCEDURE PREVIOUS TO CODE. [CH. I. office was filled in turn by Nathan Sandford, Samuel Jones, and Reuben H. Walworth. Chancellor Walworth's term of office extended to 1846, when the court was abolished, its powers vesting in the Supreme Court. The decisions of the Court for the Correction of Errors, and of the old Supreme Court, and of the Court of Chancery, are among the most valuable and im- portant of our reports. We observe, therefore, that after the Revolutionary War there were fully established the two systems of law and equity in dis- tinct tribunals. The limits of our subject do not permit a de- tailed account of the mode of transacting business in each of these courts. That belongs more properly to the special study of practice and pleading at common law and in chancery. We may, however, profitably refer to some prominent features of the early procedure which are important to a more ready un- derstanding of the existing practice. § 3. Actions at law — Capias ad respondendum. — In the Common Law courts of which the Supreme Court was the court of original and general jurisdiction, the process, practice, and system of pleading inherited from the English courts of law prevailed. Indeed, in some particulars our early practice was more antiquated than the corresponding practice in the English courts, since the Colonies did not always follow the re- medial statutes enacted by Parliament, and abuses which were corrected there in some instances continued here. 1 Personal ac- tions appear to have followed with us the course of the Com- mon Bench as distinguished from the King's Bench or Ex- chequer. They were instituted by the writ of capias ad respon- dendum and later by the service of a declaration with notice to the defendant to plead. Original writs' at first issuing out of 1 There were three treatises on the Common-law Practice in this State, pub- lished before the Revised Statutes, viz.: Wyche's Practice (1794), Caine's Practice (1808), and Dunlop's Practice (1821). After the adoption of the Revised Statutes, and before the Code, the principal works on Practice were those of Graham and Burrill. 8 An original writ was a mandatory letter issued out of the Court of Chancery under the great seal and in the King's name directed to the. sheriff of the county where the injury was alleged to have been committed, containing a sum- mary statement of the cause of complaint and requiring him to command the defendant to satisfy the claim, and on his failure to comply, then to summon § 4-J ARREST IN COMMON-LAW ACTIONS. 5 Chancery in the name of the people and sealed with the seal of the State and afterward out of the court to which they were returned (i R. L. 48), were occasionally resorted to, but the or- dinary process by which personal actions were commenced was by capias. A capias ' was a writ issued by the clerk of the court directed to the sheriff of the county commanding him to take the de- fendant and safely keep him, and have his body before the jus- tices of the court at the day named, to answer to the plaintiff in a plea of trespass. § 4. Arrest in common-law actions. — A capias was, as you observe, simply a mandate to arrest the defendant, and at com- mon law all personal actions (except replevin) were commenced or might be commenced by arresting the defendant, unless he was privileged from arrest. In earlier times in England process could be issued by the clerk of the court at the request of any attorney without any sworn statement of the cause of action (Bootes' Suit at Law, p. 40), and the sheriff could hold the defendant to bail in any sum that he might demand : a system susceptible of great abuse and injustice. The first attempted remedy was the requirement that nd writ of trespass should hold the defendant to bail unless the true cause of action was expressed in the writ (13 Chas. II. c. 2). This was the office of the ac etiam clause which was added after the general words him to appear in one of the Superior Courts of Common Law, there to account for his non-compliance (Stephen on Plead. 5). Upon the return of this writ unexecuted to the court in which the defendant was directed to appear, a capias issued out of that court, which was hence called a judicial writ. Practically a capias might be issued in the first instance and without the issuance of an original writ. 1 Form of capias : The People of the State of New York, To the Sheriff of the County of New York, Greeting: We command you that you take C. D., if he shall be found in your bailiwick, and him safely keep so that you may have his body before our Justices of our Supreme Court of Judicature at the City Hall in the City of New York on the first Monday of May next, to an- swer unto A. B. of a plea of trespass, and also {ac etiam) to a bill of the said A. B. against the said C. D. for one thousand dollars upon promises (or as the case may be) according to the custom of our said Court before our said Jus- tices, then and there to be exhibited, and have you then and there this writ. Witness James Kent, Esq., our Chief-Justice at the City of New York, the day of our Lord one thousand eight hundred and seven. Samuel Sackett, Attorney. Faisley & Bloodgood, Clerks. 6 REVIEW OF PROCEDURE PREVIOUS TO CODE. [CH. I. charging trespass. This change of form, however, afforded rather an imaginary than a real relief. By 12 Geo. I. it was provided that no arrest should be had in a civil action unless an affidavit was filed, stating the cause of action. This remedial statute did not extend to this Colony, and does not appear to have been a part of our law, for it is laid down as the practice in this State, that a capias, upon which defendant could be ar- rested as a matter of course, issued without affidavit in general in actions for debt and actions on contracts for money demands, where the demand or damages were certain or could be reduced to certainty, and in actions for conversion of personal property, trespass to personal property and to real property. In other cases, an order requiring bail was necessary, and this could be obtained from the judge upon an affidavit setting out the plain- tiff's cause of action, and in some instances, when the damages were unliquidated, special circumstances showing the necessity for the arrest. Dunlop's Prac, 104, 106; Graham's Pr., 2d ed. 161. In actions in which the defendant might be arrested as a mat- ter of course the capias was said to be bailable, in other cases non-bailable. In the case of persons who were privileged from arrest only a non-bailable capias could issue. The privilege from arrest extended in England to peers, members of Parliament, judicial officers, attorneys engaged in the business of the courts and others. Corresponding exemptions existed in this State, the particulars of which will be considered in connection with the subject of arrest under the present practice. § 5. Bail. — After the defendant had been arrested, there were three courses open to him. He could, before giving bail, require the plaintiff to state his cause of action, that is, he could make a motion before the judge to compel the plaintiff to file an affidavit setting out the claim made against him in case that had not been required as a requisite to the arrest ; or he could give bail to the sheriff, ordinarily called " bail below," which was done by filing a bond with sureties that he would appear upon the return day, and give bail in the action ; or thirdly, he could remain in custody. Upon the return day of the capias the defendant was required to enter his appearance, that is, to file with the clerk of the court a notice to the effect that he §§ 6, 7-] DISTRINGAS.— OUTLAWRY. 7 appeared in the action, and he then gave another bail bond, " bail above," to the effect that he would be forthcoming to answer to any judgment which might be obtained against him. The plaintiff, if dissatisfied with the bail offered, was at liberty to require them to appear before a judge of the court and sub- mit to examination as to their financial responsibility, the tech- nical term being " to justify.'' If they were found satisfactory the bond was approved, but if not new bail must be furnished or the defendant was again liable to arrest. The details are to a considerable extent preserved in our present practice in case of arrest in civil actions. *' § 6. Distringas. — We have thus far assumed that the defend- ant could be served with process, but in the event that he could not be so served, being absent or concealed, the old modes of pro- cedure to reach his property were cumbersome in the extreme. It was necessary in such a case that an original writ should is- sue which might be served at the defendant's place of abode. If the defendant failed to appear after such service further pro- cess might be issued against him by summons and attach- ment. The ulterior process was termed a distringas, or dis- tress infinite, so called because the number of such writs of dis- tringas was unlimited. By the distringas the sheriff was com- manded to seize the defendant's chattels and the issue of his lands to the amount of 40 s., and if the defendant still remained in default other writs might be successively sued out and in- creased issues levied until he entered an appearance. Wyche's Prac. 295. § 7. Outlawry. — But if the defendant had no known place of abode, or if for any reason a distringas was not resorted to, the plaintiff might proceed against the defendant by the pro- cess of outlawry. Outlawry in civil actions under the early common law placed a man without the protection of the law, so that he was incapable of suing for the redress of injuries, and was subject to imprisonment, and forfeited all his property. In very ancient times it practically amounted to putting a man out of the pale of society, and the protection of life or property, but in later days it practically amounted to a sequestration of his property, and was simply a means of compelling the defend- ant to appear and submit himself to the process of the court. 8 REVIEW OF PROCEDURE PREVIOUS TO CODE. [CH. I. If he did this, the process of outlawry was set aside, and he was permitted to plead. It was necessary in addition to the original writ that two other writs known as alias capias and pluries capias should be issued and returned by the sheriff unserved ; then followed other writs. The early statutes in this State provide in ample form for the process of outlawry, the issuing of the various writs, the summoning of the defendant in public places within the county and at the door of the church upon successive Sun- days, and finally a provision for his admission to plead upon payment of costs, and a waiver of the process of outlawry. After the defendant had, by the means mentioned, or other- wise, been brought to file an appearance, or appearance had been duly filed for him, the next step on the part of the plaintiff was to file his declaration, that is, a statement of the claim which he made against the defendant. § 8. Forms of action at law— Personal actions.— The forms of actions so familiar to the student of the common law were found in all their rigidity in the early practice in this State. It is indispensable to any proper appreciation either of the old or the new modes of procedure that they should be understood. By the common-law system, all actions at law were divided into three classes, real, personal, and mixed. The real action being an action to recover real property or some in- terest in or right to a freehold ; the personal action one brought to recover money either on a claim of contract or for damages for breach of contract or for a wrongful act ; and the mixed action one which partook of the character of both of the fore- going, being to recover real property and damages for its de- tention or an injury to it. All personal actions were divided into actions on contract and actions on tort. The forms of action on contract were Debt, Covenant, As- sumpsit, Account, Detinue, and Annuity. Debt was one of the oldest forms of a personal action. It lay to recover a specific sum of money by virtue of contract, upon judgments, sealed instruments, bonds, and also on simple contracts and liabilities for goods sold, work and labor, money paid, lent, had, and received. Covenant was the form of action to recover damages for the § 8.] FORMS OF ACTION AT LAW. g breach of covenant or promise under seal, as covenants in deeds, leases, policies of assurance, and the like. Assumpsit was the form of action to recover on an express or implied promise. It was the most comprehensive of the sev- eral forms of action, and was either general or special. Gen- eral assumpsit was the form of action in all cases of mere mon- ey demands where there were no special features. It lay to recover for work done, goods sold, money lent or had and re- ceived, or paid, laid out and expended, or due on an account stated. Special assumpsit was the proper remedy when the agreement was of a special character calling for the statement of special circumstances, as on bills, notes and checks, breach of contract to marry, and breaches of special contracts, of every character. Account, Detinue, and Annuity were forms of action not in common use. The first, account, was the form of action to com- pel accounts from agents, guardians, etc., but the equitable remedy on accounting was more satisfactory, and was gener- ally availed of. Detinue was the form of action to recover a personal chattel wrongfully detained from the owner. The place of this remedy was supplied by replevin. Annuity was the former remedy to recover an annuity, that is, the annual payment of a sum of money. In connection with the declaration in these common-law forms of action on contract, we must refer to what were known as the " Common Counts." These were different modes of stating the same transaction inserted in the declaration so that the pleader might not be defeated by an error in his form of statement of the action. Thus in debt and assumpsit it was usual to state the cause of action not only specially, but also in one or more of the four common counts. These counts were of four descriptions, indebitatus assumpsit, quantum meruit, quan- tum valebant, and insimul computassent. Indebitatus assumpsit in substance set forth that the defendant was indebted to the plaintiff in a sum of money upon the grounds stated, and that being so indebted {indebitatus) the defendant in consideration thereof undertook and promised to pay the money when requested. In the quaiitum meruit count the averment was that the defend- ant undertook and promised to pay the plaintiff so much money ID REVIEW OF PROCEDURE PREVIOUS TO CODE. [CH. I. as he reasonably deserved to have {quantum meruit) upon the mat- ter stated, and that the plaintiff deserved to have a sum named of which defendant had notice. Quantum valebant was a count for goods sold, and stated that the defendant promised to pay the plaintiff so much as the goods were reasonably worth, and that they were worth so and so much, and that defendant had notice thereof. The insimul computassent count was to the effect that the de- fendant at a certain time and place agreed upon an account stated, respecting the matters constituting the cause of action. Actions on Torts were at common law three : trespass, re- plevin, and trespass on the case. Of trespass there were three classes : (i) injuries to the per- son — trespass vi et armis ; (2) injuries to personal property — trespass de bonis asportatis ; (3) injuries to real property — trespass quare clausam f regit. These were all forms of action for inju- ries accompanied by force. Replevin was the form of action to recover a chattel wrong- fully taken or detained. Trespass on the case was a form of suit devised to meet the cases unprovided for by other forms of action in torts. This was the universal remedy for all wrongs committed without force, such as actions for deceit or fraud in the sale of goods, for negligence, for injuries to the domestic relations. Some of the forms of trespass on the case were in their nature distinct, as trover, slander, libel, and malicious prosecu- tion. Trover originally was a form of action to recover damages against one who, having found property, kept it from the true owner. This fiction of finding followed the action after its use was much more general, and when it had become the form of remedy to recover for the wrongful depriving of a person of his property, concurrent with replevin. Slander, libel, and malicious prosecution were the forms of action to recover for wrongs which are known to us under the same names. § 9. Common-law pleadings. — Upon these forms of action the common law built up a system of special pleading, of which nothing more than a general outline is needed in this connec- tion. The first pleading on the part of the plaintiff was the § 9-J C0MM6N-LAW PLEADINGS. 1 1 declaration which was the statement of his cause of action un- der one or the other of the foregoing forms of action. The declaration was filed after the defendant appeared in the action. Within a certain time limited after the filing of the declaration the defendant was at liberty to present his defence by filing in opposition to the claim, either a demurrer or a plea. The demurrer raised the question whether the declaration, as- suming all its statements to be true, was sufficient in point of law to entitle the plaintiff to the redress sought. If upon exam- ining the declaration, the defendant's attorney concluded that all its allegations, if admitted, were not sufficient to entitle the plaintiff to such judgment as was asked, he might demur. The demurrer was simple and in these words, " The said defendant (by his attorney) says that the declaration is not sufficient in law." This raised a question of law to be determined by the judge without a jury. In place of demurring, the defendant might proceed by filing a plea. These were of two kinds — & plea in abatement and & plea in bar. A plea in abatement was the means used by defendant to avail himself of defences which did not affect the merits, but which if true, constituted a defence to the claim as presented. For instance, if the court was without jurisdiction, or if there was another action pending for the same matter, or if there was a non-joinder of parties, plaintiff or defendant, that is, if some person or persons who were necessary parties to the action were not named as parties, or if the plaintiff or defendant was an in- fant, and was not properly brought into the action by next friend or guardian, the defendant might take advantage of these and such like errors by filing a plea in abatement setting up the facts showing the defect. Such pleas were called dilatory pleas. The plea to the jurisdiction was an independent plea not properly classed as a plea in .abatement. If the declaration was good upon its face so that it was not demurrable, and there were no technical matters which could be pleaded in abatement, then the defendant might file a plea in bar. Pleas in bar were intended to show that the plaintiff never had any cause of action, or that if he had it had been discharged. They were, therefore, of two kinds : a denial termed the general issue, or a confession and avoidance. _. Denials were either general or special ; that is, they were we- 12 REVIEW OF PROCEDURE PREVIOUS TO CODE. [CH. I. nials of all the matters stated in the declaration or of some of them. A general denial put the plaintiff to all his proof, and left the defendant at liberty to offer any evidence going to dis- prove the plaintiff's case. If, however, the declaration was true and the defendant had an affirmative defence, his plea set up such defence ; as, if the declaration was for goods sold and de- livered and the defendant pleaded payment, that was a con- fession and avoidance, for he admitted the purchase of the goods and avoided his liability by the plea of payment. The logical precision of the common law would not tolerate the union of a plea in avoidance with a general denial, by rea- son of the apparent inconsistency of the pleas. An innovation, however, was introduced by statute under which the defendant was permitted to give notice with the general issue of any mat- ters which if pleaded would be a bar to the action, and there- upon to give such matter in evidence upon the trial in the same manner as if it had been pleaded (i R. L. 515; 2 R. S. 352, § 10). Whether the defendant filed a plea which was in abatement or in bar, the plaintiff was at liberty either to demur to the plea or to file a replication. If after examining the plea he deter- mined that upon its face it was insufficient, that is, that the matters stated did not constitute a defence, he might demur. If, however, upon its face it set up a defence, but was untrue in fact, he might file a replication, setting up a denial, or traverse ; or if in answer to the plea the plaintiff had an affirmative reason why the defence set up was not good, his replication would contain such new matter by way of confession and avoidance. Similarly, in answer to the replication the defendant might file a demurrer or a rejoinder setting up a denial or an avoid- ance. Thus proceeding the parties must in every case come either to a demurrer or a denial, and when that result was reached there was a question between the parties either of law or of fact. If the demurrer was the last pleading, there was an issue of law; if a denial, there was an issue of fact. An issue having been reached either party could serve a notice on his adversary that he would bring the case to trial. If the issue was one of law on a demurrer, the cause was noticed for argu- ment before a judge, and if the issue was one of fact the case was noticed for trial at a term of the court at which the judge was to sit with a jury. § 10.] TRIALS OF COMMON-LAW ACTIONS. 1 3 § 10. Trials of common-law actions. — We are thus brought back to the court in which the trial was to be had. During the early period we are considering, the Supreme Court consisted, as we have seen, of a chief-justice and four associate justices. The court held four stated terms each year, either at New York or Albany, and at both of these cities, and also at Utica, there was a clerk and a clerk's office. In the constitution of the trial court and the mode of disposing of issue, we followed the English courts with great inconvenience, and without the same historical reason. For, as after the English Supreme Courts became stationary at Westminster, the judges in eyre went upon circuit through the Kingdom under royal commission authoriz- ing them to hold assizes for the trial of civil and criminal issues, so in this State Circuit Courts were held by the Supreme Court judges in the several counties for the trial of civil issues, and Courts of Oyer and Terminer for the trial of criminal issues ; these courts were held not by special commission as in England, but by the authority of the statute (1 R. L. 319). When, therefore, an issue of fact was framed by the pleading, which was- triable before a judge and jury, it might be tried either before the bar of the Supreme Court at one of the stated terms or at a Circuit Court, but both by statute and rule of court issues of fact could not be tried before the bar of the court, except by special leave, hence jury trials were ordinarily con- ducted at the Circuit. When the issue was framed it became necessary to prepare what was termed the nisi prius roll, or a record of the pleadings, filed in the clerk's office of the Supreme Court, which was delivered to the Circuit Court in the appro- priate county for use upon the trial. A jury was obtained for the trial of the issue by means of the venire facias, a writ issued by the clerk of the Supreme Court directed to the sheriff of the county where the trial was to be had directing him to sum- mon a jury. The method of summoning a jury at common law was by the venire, distringas, and habeas corpora. The party desirous of having the case tried prepared two writs, by one of which, the venire, the sheriff was directed to summon a jury to Westmin- ster by a certain day ; this, however, it was not intended he should do ; the other writ, the distringas or habeas corpora, sup- posed that he had done so, and that the jurors had made default and commanded the sheriff to distrain their goods and take 14 REVIEW OF PROCEDURE PREVIOUS TO CODE. [CH. I. their bodies so as to have them at Westminster on a day named unless before that day the judge of assizes came to a certain place where the cause was to be tried. It was to this place that the jury were summoned. It was the clause of this writ, nisi frius (unless the prior coming), which accounts for the desig- nation of proceedings at Circuit as being proceedings at nisi prius. Thus a cause was made ready for trial at Circuit, and could be moved for trial by either party who had given the requisite notice of trial. The case having been tried and a verdict rendered, the next step was to make up the judgment record. This consisted under older common-law forms of the nisi prins record, upon which was originally endorsed a minute of the verdict, and these hav- ing been made up into a judgment roll a postea, or final order reciting the steps in the action and a direction for the award of judgment, was attached. On filing the circuit roll with the postea endorsed in the Supreme Court, the prevailing party became entitled to enter judgment after four days from the time of entering an order or rule for judgment, but in the meantime proceedings in arrest of judgment might be taken before the Supreme Court for any error appearing upon the face of the record. After judgment a motion for a new trial for defects and irregulari- ties in the proceedings or mistakes and errors upon the trial, or for matters arising after verdict, as, for instance, newh r dis- covered evidence or surprise, might also be made in that court. The trial of an issue of law on demurrer was merely an argument based upon an inspection of the record and was had before the court without a jury on notice. § II. Executions. — The methods of enforcing a common- law judgment recovered in a personal action were by writs of fieri facias (fi. fa.) and capias ad satisfaciendum (ca. sa.). The former was a writ issued to the sheriff directing him to sat- isfy the judgment out of the defendant's property, personal or real ; the second was likewise a writ issued to the sheriff direct- ing him to take the defendant's body in satisfaction of the judgment. The latter writ could issue in any case in which the defendant might have been arrested on a capias ad responden- dum. §§ 12, 1 3-] WRIT OF ERROR. — REAL ACTIONS. 1 5 § 12. Writ of error. — A review of the judgment of a court of law was procured by means of a writ of error. This was a writ issuing out of the appellate court directed to the lower court requiring it to return the record in the action into the higher court for revision. Writs of error in all civil cases and in criminal cases not capital were writs of right, that is to say, they were issued as a matter of course, so that the granting of an appeal was in no wise dependent upon the favor of the court; the issuing of the writ, however, did not have the effect of staying proceedings for the enforcement of the judgment in the court below unless a bond was given as required by the statute (i R. L. 343). I 13. Real actions. — We come now to the forms of real ac- tions previous to the Revised Statutes. The common-law learn- ing in reference to real actions was abstruse and difficult. Every real action was commenced by its appropriate form of writ. These writs were numerous, the proceedings in the ac- tions complicated and cumbersome, and many of them had be- come practically obsolete before the beginning of this century. It is enough for our purpose to note that the principal real ac- tions in this State before the Revised Statutes were three : Writ of Right, Writ of Dower, and Ejectment. The writ of right was considered the highest writ in the law. It was brought only to recover an estate in fee simple. In ancient times the title was tried in this form of action by battle through champions who fought in behalf of the respective parties, and this was the only mode of trial until trial by the grand assizes was introduced in the reign of Henry II. Trial by battle was not formally abolished in England until 1817. In this State an act regulating trial upon writs of right was passed February 6, 1786 (1 R. L. 50). It abolished trial by battle and provided that inasmuch as there was not and could not by law be any such order of men in this State as knights, the writs issued for summoning electors of the grand assizes instead of the words " four lawful knights of your county, girt with swords," should read, " four good and lawful men of your county," — a forcible illustration of the tendency in legal pro- cedure to adapt old forms to new requirements long after their inutility has been recognized. The four qualified electors having been selected, proceeded l6 REVIEW OF PROCEDURE PREVIOUS TO CODE. [CH. I. to choose sixteen jurors, thus constituting a body of twenty, who acted as a jury or grand assize to try the title. The pro- ceedings in this form of real action, with the mode of pleading and trial, may be found set out in the old books of practice (Dun- lop's Pr., chap, xxii.), but the cases do not appear to have been numerous (i Johns. Cas. 249 ; 2 Johns. Cas. 112). The common-law writ for the recovery of dower and the pro- ceedings thereon which were in early use in this State (Dun- lop, chap, xxiii.), were supplemented by statutory provisions for the admeasurement and setting off of dower both on the appli- cation of the widow and of others (1 R. L. 56). The common- law action and the statutory proceeding were frequently re- sorted to and may now be of importance in the examination of titles. But by far the most common action to recover the possession of land was ejectment, the history of which is one of the most familiar and interesting illustrations of the use of fictions in the development of the common law. The action of ejectment was originally an action of trespass brought by a lessee or ten- ant for years, to redress the injury inflicted on him by ouster from possession. By means of a legal fiction this form of ac- tion was made to do duty not merely to recover damages but also the land itself. The tenant who was dispossessed was sup- posed to enter upon the land and there execute a lease to a third party, who remained claiming title under the lease until the person whose possession has thus been disturbed, or some stranger termed " the casual ejector," came upon the land and ejected the new-made tenant, who thereupon brought suit against the person who ejected him. The plaintiff's right of entry depended of course upon the validity of the lease under which he claimed, and the plaintiff was thus put to the necessity of proving the right of possession of the real claimant, his lessor. Notice of the action was required to be given not only to the casual ejector, but to the actual party in possession, who upon coming in and asking to be permitted to defend was required to admit the entry, the lease and ouster, and to rely solely upon his title, and thus the question of title to the land was brought to an issue. This old form of action existed in this State with its common-law peculiarities down to the Revised Statutes, and you will find many reported cases beginning Jackson ex dem. or Jackson on the Demise of, §§ 14, ISO THE COURT OF CHANCERY— ITS OFFICERS. 17 where the plaintiff is the imaginary tenant of the real party seeking to recover possession. In addition to the real actions mentioned, the partition of real estate among tenants in common and joint tenants, for which there was no action at common law, and a relief not wholly adequate in equity, was provided for by the early statutes of the State (1 R. L. 512, sec. 37, c. 198, Sess. 44, c. 130). § 14. The Court of Chancery — Its officers. — The methods of conducting legal business in the Court of Chancery were essentially different from those which prevailed in courts of law. Down to the adoption of the Constitution of 1823, the Chancel- lor was the only judicial officer in the State vested with equity powers. The court, therefore, followed his person. The stat- ute provided that the Chancellor should sit twice in each year at Albany and in New York. The officers of the Court of Chancery included beside the Chancellor and the solicitors, masters, registrars, examiners, and clerks. Masters in chancery were in this State appointed by the Governor and Senate. They were assistants to the Chancellor, who referred to them matters for examination, such as the taking of accounts, computing damages, and other sub- jects upon which the master examined witnesses, collected evi- dence, and reported to the Chancellor with or without his opin- ion as directed. The duties formerly performed by a master in chancery, may under the Code be performed by referees. Registers and assistant registers were appointed by the Chan- cellor as custodians of the records and papers filed with them. There were several such registers in different parts of the State for the convenience of business. The duty of examiners was to take the examination of witnesses. All the evidence in an equity suit was taken out of court before trial by the exam- iners. The witnesses were not examined upon oral questions, but upon written interrogations prepared by the solicitor and submitted to the examiner, who wrote down the answers of the witnesses for submission to the Chancellor upon the final hearing. § 15. Commencement of suit in equity. — A suit in equity was commenced by filing with the clerk of the court a bill of complaint or petition, setting forth the facts upon which the 2 18 REVIEW OF PROCEDURE PREVIOUS TO CODE. [CH. I. complainant's claim to relief in equity was based. The clerk thereupon issued a writ addressed to the defendants, directing them to appear and answer, termed a subpoena. The subpoena was served by delivering a copy to the defend- ant. In case of the absence of defendant from his dwelling- house, the subpoena could be served on his wife or servant therein (i R. L. 487). The defendant might then appear by a solicitor who filed with the* clerk or register a memorandum of his appearance, and gave a like notice to the complainant's solic- itor. If the defendant failed to appear after personal service, the complainant might take the bill as confessed, that is, pro- ceed to judgment by default. If the defendant failed to appear after service upon his wife or servant, the complainant might proceed against him by attachment of his person, that is, by arrest ; and under the old chancery practice, if that writ did not produce an appearance, there was a long chain of process which might be resorted to, ending in a sequestration of his property for the purpose of compelling him to appear In the case of absent and concealed defendants, a statute passed in 1801 (1 R. L. 489) provided for service of the subpoena by publishing it in one or more public papers, § 16. Pleadings in equity. — The pleadings in an equity suit on the part of the defendant were either a demurrer, plea, or answer, the demurrer raising the question of the legal suf- ficiency of the bill of complaint — the plea setting out matter anal- ogous to those that might be embraced in a plea in abatement at law, and the answer being intended to meet the merits of the bill either by denials of its statement or affirmative defences. The subsequent pleadings by plaintiff were either a demurrer or replication. The pleadings ordinarily ended with the repli- cation, although they might proceed to the rejoinder, surre- joinder, and rebutter. § 17. Equitable remedies. — There are special features of the practice in equity some knowledge of which is necessary to a proper understanding of certain provisions of the Code, and to these we must briefly refer. One of the most useful prerogatives of a court of equity was the power which it had to compel a defendant to make dis- closure of evidence to be used in actions pending at law. For § 1 7-] EQUITABLE REMEDIES. 19 this purpose a party sued or suing at law, might, in the cases where it was permitted, file a bill in equity against his adver- sary, requiring him to make answer under oath as to matters pertinent to the issue pending at law. The necessity for the -exercise of this jurisdiction arose in part from that rule of the ■common law respecting the competency of witnesses which rendered a party incompetent to testify in his own behalf, and which sheltered him from the necessity of giving evidence against himself. The power to compel an inspection and discovery of docu- ments in common-law courts was limited. A party might crave ■oyer of a written instrument which was pleaded, that is, he might demand an inspection of such an instrument, but only when his adversary had made profert of the document in his pleading, that is, when he had declared upon the instrument to be produced, and the practice of compelling a discovery of instruments which were the foundation of the action or defence was in time somewhat enlarged in courts of law. But beyond this the common-law courts had no power to compel a discovery by the examination of parties or an inspection of books and papers before trial. Hence such relief as could be obtained in these particulars must be had by recourse to courts of equity. Remedial statutes relieved to some degree this defect of the common law, but in this important particular the modern prac- tice has been derived most largely from equitable sources. Another feature of the equity practice which tended to speed- ier and more exact justice, was the right of the defendant to file a cross bill for the purpose of procuring a discovery from the plaintiff or to obtain affirmative equitable relief against the plaintiff arising out of the subject-matter of the original bill, but as to which he could not avail himself by answer. This gave that court a wider scope in settling matters of difference between parties than courts of law could exercise, even after the statute of setoffs, and under the form of counterclaim this rem- edy is now found extended to all forms of action under the Code. The power which a court of equity had to compel a party to a full and direct disclosure and answer by means of the privilege which the complainant had to file exceptions to the defendant's answer, was highly beneficial. If the answer of the defendant when filed was defective or evasive, or scandalous or imperti- 20 REVIEW OF PROCEDURE PREVIOUS TO CODE. [CH. I. nent, the plaintiff might file exceptions in writing, specifying the particulars in which the answer was liable to exception, and the sufficiency of the answer was tested upon a hearing before the chancellor on these exceptions, who could require the defendant to make further and satisfactory answer before a master by process of contempt. Courts of equity also pos- sessed peculiar facilities by means of the writ of injunction and the appointment of a receiver to secure to the complain- ant at the very outset of the suit the final relief to which he might be found entitled upon the trial. We have derived two of our so-called provisional remedies under the Code, arrest and attachment, from the common law, but the more effective remedies by injunction and receiver have come to us from the practice of courts of equity. The hearing of a cause in equity differed materially, as we have seen, from the trial of an action at law. In equity the testimony was taken privately, either by written interrogatories and answers, or by deposition, or by oral examination of wit- nesses before an examiner. The testimony having been reduced to writing, the cause was set for hearing and was argued before the chancellor upon the testimony so taken, upon which the final decree was given. § 18. Enforcement of decrees inequity.— The enforcement of decrees in equity was by execution, sequestration, injunc- tion, receivership, and proceedings to punish for contempt. The efficacious mode of enforcing its decrees by imprison- ment had much to do with the growth and strength of equity jurisdiction. It assumed a power to stay proceedings in courts of law by directing its orders against the litigants in those courts, and enforcing obedience under the threat of impris- onment if its commands were not respected. Under the power of punishment for contempt it enforced the observance of uses and trusts, and compelled specific performance. With this weapon it enforced discovery of facts and documents, and brought into its jurisdiction actions involving questions of fraud, accident, mistake, rectification and cancellation of deeds, etc., the dissolution of partnership, arid partition. § 19. Courts of Common Pleas and other courts.— We may conclude our enumeration of the early courts with a §§20, 2I.J EARLY COMPILATIONS OF STATUTES. 21 reference to the courts of Common Pleas, which were estab- lished in Colonial times, and provided for by the early State legislation (2 R. L. 141). These courts were held in each county of the State and were presided over by the county judge, there being one such officer appointed for each county. They exercised only common-law powers, and might try and determine local actions touching real property situated in their respective counties, and transitory actions, although not aris- ing within the county. In addition to the courts of Common Pleas there were the courts of the justice of the peace scattered through the various townships, and there were also the crim- inal courts of Special Sessions, General Sessions, and Oyer and Terminer — the first held by three justices of the peace, the sec- ond by the county judge and two justices of the peace, and the third by the Supreme Court judge sitting in most of the counties with two judges of the county court, to which courts the ad- ministration of criminal law was exclusively confided. § 20. Early compilations of statutes. — There were two early compilations of the statute law of the State published, one in 1801, and the other in 1804. Later, by legislative authority the public laws of the State of a general and permanent nature were compiled and published by legislative sanction, and are known and cited as the Revised Laws of 1813. Some of the early statutes demand a passing notice. § 21. Attachment against absconding debtors. — Proceed- ings by attachment against absconding and absent debtors may first be considered. You have observed in what has been already said that the common law exhausted itself in efforts to compel the defendant to appear. If he could not be arrested and did not voluntarily appear, the court pro- ceeded by sequestration and outlawry. As early as 1801 an act was passed in this State for the purpose of attaching the property of debtors who were non-resident or who had absconded or kept themselves concealed to avoid service upon them, or upon the ground that the debtor had assigned, removed, or disposed of his property, or was about to do so with the intent to defraud his creditors, or that he had fraudulently contracted the debt upon which the suit was brought. In such cases a creditor having a claim of $100 or upwards, 22 REVIEW OF PROCEDURE PREVIOUS TO CODE. [CH. I. or creditors in larger number with larger claims, might present to the judges designated in the act a petition verified by affi- davit setting out the indebtedness and the facts and circum- stances establishing the grounds for attachment, and upon satisfactory proof the officer was authorized to issue a warrant of attachment to the sheriff of any county where the debtor had property, directing him to attach it and keep it in safety. The act provided for a notice to the debtor and to all his creditors by publication to present their claims, and any creditor presenting his claim was entitled to share in the pro- ceeds of the attached property. The remedy thus provided was one which was for the benefit of all the creditors of the absconding or absent debtors. It was the forerunner of the proceeding by attachment under the Code, in which there are other grounds for issuing an attachment against property beside those given by the law referred to, but the marked difference is that, under the Code, an attachment is solely for the benefit of the creditor who obtains it, while the original remedy was for the benefit of all creditors who joined. § 22. Relief of imprisoned debtors. — Another statutory matter formerly of great importance was the relief of im- prisoned debtors. It will naturally have occurred to you that when imprisonment for debt was the common remedy in civil actions, some limit to the term of imprisonment must exist or otherwise a debtor might be incarcerated for life. The common law knew no mercy in this regard. Imprisonment on final process unless satisfied was perpetual, except as Parliament from time to time stepped in to relieve the crowded condition of the prisons. The first act of this kind, the first of a series of what were known as Insolvent Laws, was passed in the time of Charles II. (1670). It liberated such civil creditors as were incarcerated upon a day named. This act was followed by many others. The jails filled, and Parliament emptied them by special act. A general act for the relief of insolvent debtors was passed in 32 Geo. II., providing for persons in confinement on executions for ^100. In this State a bill was early passed permitting an imprisoned debtor to apply for his discharge on a surrender of all his property, and upon proof that his proceedings had been just and fair. This statute was known as the fourteen days act, and is still in §§ 23, 24. J SECOND CONSTITUTION, 1 823. 23 force (Co. Civ. P. § 2200 etseq.). There was also provision made for an insolvent to exonerate himself from arrest by making a conveyance of all his property to a trustee for his creditors (Co. Civ. P. § 2188 et seq.). There was further an act to dis- charge an insolvent from his debts upon the consent of two- thirds of his creditors, commonly called the two-thirds act (Co. Civ. P. § 2149 etseq.). § 23. Second Constitution, 1823. — Several changes in the organization of the courts were effected by the second Consti- tution, which was passed at a constitutional convention held in 1821, and went into effect on Jan. 1, 1823. By that instrument the Supreme Court judges were reduced to a chief-justice and two associate justices. The State was divided into Circuits, not less than four nor exceeding eight, for each of which a cir- cuit judge was to be appointed who was to possess the powers of a judge of the Supreme Court at Chambers, and in the trial of issues joined in the Supreme Court and in Courts of Oyer 1 and Terminer, and it was provided that such equity powers might be vested in the Circuit Judges or in the County Courts as the legislature might direct, subject to the appellate juris- diction of the Chancellor. Under these provisions of the Con- stitution and the subsequent legislation, eight circuit judges were appointed in each of eight circuits which were set off ter- ritorially, and these judges were vested with equity powers as vice-chancellors, so that the judiciary of the State at the close of the first period of our historical review consisted of the chancellor with eight Vice-chancellors (the circuit judges), the chief-justice and two associate judges of the Supreme Court, eight circuit judges, and county judges in each of the counties of the State. § 24. Second period — English law reform. — The struggle to break through the limitations of the old common-law forms of procedure commenced almost simultaneously in England and in this State. That struggle resulted, both there and here, in the ultimate reformation of the ancient system of practice and pleading. In 1828 a Commission was appointed by the English Parliament to examine into the course of proceeding 24 REVIEW OF PROCEDURE PREVIOUS TO CODE. [CH. I. in actions and other civil remedies in the Superior Courts of Common Law. The reports made by that commission, as well as by a subsequent commission appointed in 1850, contain the most extended and careful study of the entire range of the law respecting process practice and pleading. The work of the first commission resulted in the Uniformity of Process Act (2 Wm, IV., c. 39), by which it was provided that all actions where the defendant was not to be held to special bail were to be commenced by writ of summons, and some other reforms in the mode of instituting actions were provided. The commission also led to the enactment 3 and 4 Wm. IV., c. 27, by which all real and mixed actions were abolished except Dower, Eject- ment, and Quare impedit. § 25. The Revised Statutes. — The general awakening to the need of law reform resulted in this State in the enactment of the Revised Statutes, which took effect Jan. 1, 1830. This great work was due mainly to the learning and energy of John Duer, Benjamin F. Butler, and John C. Spencer. The student should examine with care the character and scope of this work, inasmuch as a large part of the Code which we are to study is taken directly from it. The work was divided into four parts. The first concerned the territorial limits, divisions, civil polity, and internal administration of the State. This included the territory of the State and its division into counties, towns, and election districts, the census, public officers, legislative, execu- tive, and judicial elections, the State funds and revenues, the militia, town and county offices, and the government of towns and counties, assessments and taxes, public health, public instruction, highways, provisions for the regulation of trade, corporations, weights and measures, and a variety of regula- tions for the care of the poor, incompetent persons, and the prevention and punishment of immoral and disorderly prac- tices. The second part concerned the acquisition, enjoyment, and transmission of real and personal property, the domestic relations, and other matters connected with private rights. This part of the work is justly regarded as a performance of extraordinary merit. The whole subject of tenure of real prop- erty and of trusts and powers respecting realty, of descent, of wills, of fraudulent conveyances, of the domestic relations, and of insolvency, are treated in this part. The third part concerns § 26.] NON-IMPRISONMENT ACT. 2$ courts and ministers of justice and proceedings in civil cases. The fourth part had to do with crimes and their punishment, and proceedings in criminal cases and personal discipline. All of the third and fourth parts that have been preserved are now incorporated into the Code of Civil Procedure, the Penal Code, and Code of Criminal Procedure. The Revised Statutes made no change in the courts. The Court for the Trial of Impeachments and the Correction of Errors, the Court of Chan- cery, and the Supreme Court remained unaltered. Eight cir- cuits were created by the Revised Statutes, and there were conse- quently eight circuit judges vested with many of the powers of a justice of the Supreme Court, and also having equity powers. Upon glancing through these portions of the Revised Statutes you will observe that they treat of the constitution and regula- tion of these courts and of their general powers, duties, and jurisdiction. Here also you find the early statutes of limitation re-enacted with alterations and modifications. All the old forms of real action were abolished by the Revised Statutes, except those which were enumerated and retained. These were ejectments, proceedings to compel the determina- tion of claims to real property, partition, writ of nuisance, waste and trespass on land. In ejectment the fictions of the common law were eliminated, and the action was reduced to the form of a personal action between the real parties in interest. In personal actions the common-law forms continued. Arrest for debt stili remained as before the Revised Statutes. En- croachments, however, were made upon the strictness of com- mon-law pleading, and a number of features familiar to our Code were introduced into the Revised Statutes, upon which it is not necessary now to dwell. § 26. Non-imprisonment Act. — In 1831 the act entitled "An act to abolish imprisonment for debt and to punish fraudulent debtors," was passed. This act provided that no person should be arrested or imprisoned on any civil process or execution, in an action to recover a sum of money upon a judgment or decree founded upon contract, or due upon any contract express or implied, or for the recovery of damages for the non-perform- ance of a contract. This, you observe, left the right to arrest in actions of tort unchanged. The act in its relation to con- tract debts did not apply to non-residents, or to contempts, or 26 REVIEW OF PROCEDURE PREVIOUS TO CODE. [CH. I. to actions for fines or penalties, or on a promise to marry, or for moneys collected by a public officer, or for misconduct or neglect in office or in any professional employment. And in all cases where the defendant would otherwise have been free from arrest under the act, he might still be arrested upon proof that he was about to remove his property out of the jurisdiction of the court to defraud his creditors, or that he had property which he fraudulently concealed and refused to apply to the payment of a judgment. The passage of this act, known as the Stillwell Act, from the name of its originator, was hailed as a great step forward in the progress of law reform. It was followed shortly after by the practical abolishment of imprisonment for debt in England. The grounds of arrest in civil actions, as we shall hereafter find, are in substance those existing under the present Code. § 27. Courts and procedure from 1830 to 1846. — The in- crease of business in the first circuit, comprising the city of New York, led to the creation of the office of Vice-Chancellor (1831). The Vice-Chancellor in that circuit exercised all the equity powers of the Circuit Judge as Vice-Chancellor ; subse- quently a Vice-Chancellor was also appointed for the 8th Cir- cuit, and an assistant Vice-Chancellor in the first (1839). In the Supreme Court the inconvenience arising from the difficulty of readily reaching a Supreme Court or a Circuit judge in the interior counties of the State, led to the creation of Supreme Court Commissioners, who were appointed for the various counties in the State, and were clothed with the powers which the Supreme Court judges might exercise at Chambers. Still further relief from the pressure of business in the first Circuit was obtained by the creation of the Superior Court of the City of New York in 1828. The Court of Common Pleas in and for the city and county of New York, which had existed in Colonial times under the name of the Mayor's Court, was given its present title in 1821, and down to 1836 its jurisdiction was exercised by one presiding judge, but before 1846 two asso- ciate judges were added to the court. The constitution of the Court of Errors, the delay and expense in reaching a final hearing before the Chancellor, the inharmonious structure of the Supreme Court and Circuit Courts, and Commissioners, — these, in addition to a growing sense that the old forms were no longer adapted to the com- § 28.] COMMISSIONERS TO CODIFY THE LAWS. 2J mercial and mercantile requirements of the time, created a con- stant feeling of dissatisfaction which found popular expression in the Constitution of 1846. That Constitution largely remodeled the judiciary system of the State. The Court for the Trial of Impeachments and Cor- rection of Errors was abolished. A Court of Appeals, composed of eight judges, was established. The trial of impeachments was lodged in the Senate, with which body the judges of the Court of Appeals were to sit in such trial. Of the judges con- stituting the Court of Appeals, four were to be elected by the electors of the State at large, and four to be selected from the Supreme Court judges. The Court of Chancery was abolished. All the equitable jurisdiction of that court was transferred to the Supreme Court. By this Constitution and the Acts which were passed pursu- ant to it, the State was divided into eight judicial districts, each having four Supreme Court judges, with provision for a further increase of the number in the city of New York. The Judiciary Act of 1847, passed to carry into effect the changes effected by the Constitution of 1846, was so soon fol- lowed by the adoption of the Code of Procedure, that it is not necessary to dwell upon it. We may anticipate the order of time by stating in this con- nection that amendments to the judiciary article of the Consti- tution were adopted in 1869. By these amendments, the Court of Appeals was constituted in its present form. It is now com- posed of a chief-justice and six judges, all elected, holding office each for fourteen years. § 28. Commissioners to codify the laws. — As early as 1837 the legislature authorized the appointment of commissioners to digest and report a judicial and equity system for the State of New York (Laws of 1837, chap. 436). But this legislation produced no practical change. When the Constitution of 1846 was adopted it provided not only for the appointment of com- missioners to codify the whole body of the laws of the State, but made special provision for the appointment of three com- missioners to "revise, reform, and simplify the rules of prac- tice, pleadings, forms, and proceedings of the courts of record of the State." Aphaxid Loomis, Nicholas Hill, Jr., and David Graham were appointed Commissioners on Practice and Plead- 28 REVIEW OF PROCEDURE PREVIOUS TO CODE. [CH. I. ing, and in 1847 Messrs. Graham and Loomis (Mr. Hill having resigned) reported to the legislature their determination to pre- sent a new system of practice and pleading, abolishing the dis- tinction between modes of procedure in cases of legal and equitable cognizance and the' adoption of a uniform system as applicable to all cases. This report was followed at the next session of the legislature by the enactment of the Code of Procedure (April 12, 1848), submitted by the commissioners above named and David Dudley Field, who had been added to their number. In 1849 the same commissioners reported a final and completed Code of Civil Procedure, and also a Code of Criminal Procedure, which at that time failed of enactment. The Code of Procedure, which was much more concise and lim- ited in extent than the existing Code, was largely amended, and did not take on what may be regarded as its final form until 1852. It introduced a quarter of a century in advance of Eng- land a logical and systematic body of rules governing the pro- cedure in a civil action, and wiped out of existence at a breath a mass of technical and burdensome hindrances to the adminis- tration of justice. In England the first common-law procedure act was passed in 1852, which was followed by another in 1853, and another in 1854, — all these forming in reality one embryonic Code of Pro- cedure (Roscoe's Civ. Pro. 2). The Chancery Procedure Act became law, likewise in 1852, by which changes of equal importance were introduced into the procedure at Lincoln Inn. These were followed in 1873 and 1874 by the Judicature Acts, by which one Supreme Court of Judicature was substituted for the previous Court of Chancery and the Superior Courts of Law. The changes in the English practice, however, did not extend so far as to attempt to abolish the distinction between equity and law, although the ancient modes of procedure and forms of action and pleadings were completely superseded. In our State the commissioners above named, after having reported the Code of Civil Procedure and the Code of Criminal Procedure, under subsequent appointment also reported a pro- posed Penal Code, a Civil Code, and a Political Code. In 1870 (Laws of 1870, chap. 33) the Governor was authorized to appoint three commissioners to revise, simplify, arrange, and consolidate all the statutes of the State, generaland permanent § 28.] COMMISSIONERS TO CODIFY THE LAWS. 29 in their nature, and by a subsequent act (Laws of 1873, chap. 467) these commissioners were authorized to incorporate and make a part of such revision the Political Code, the Penal Code, the Code of Civil Procedure, and the Code of Criminal Procedure reported by the commissioners appointed in 1857, or such part as they might deem advisable. The commissioners designated pursuant to this legislation, Montgomery H. Throop, Charles Stebbins, Jr., and Jacob I. Werner, submitted a pro- posed Code of Civil Procedure in 1873. The first part of this work, the first thirteen chapters, was enacted in 1876 (Laws of 1876, chap. 448, 449), and went into effect in part May 1, 1877, but as to the principal portions on Sept. 1, 1877. The remain- ing chapters, 14 to 22, inclusive, were enacted in 1880 (Laws of 1880, chap. 301), and went into effect Sept. 1, 1880. The final chapter (chap. 23), relating to the proceedings of the condemna- tion of real property and for the sale of corporate real prop- erty, were added in 1890 (Laws of 1890, chap. 95). The remainder of the proposed system of codification has not been adopted except the Code of Criminal Procedure and the Penal Code, the first of which went into effect Sept. 1, 1881, and the second Dec. 1, 1882. The Code of Civil Procedure has, as we have seen, grown up through various stages, and under the moulding influence of many minds. It is a work not without historic as well as prac- tical interest, and most of its provisions find their roots in old forms re-adapted to modern uses. CHAPTER II. COURTS: THEIR JUDGES AND OFFICERS. CHAPTERS I. AND II., CODE OF CIVIL PROCEDURE. The first two chapters of the Code relate to the courts of the State, their general powers and regulations, the judges and officers of the court, including attorneys and ministerial offi- cers, such as sheriffs, coroners, clerks, etc., and the powers, duties, and liabilities of such judicial and ministerial officers. Many of the sections of these chapters have to do with mat- ters of detail regarding the mere external appointments of the courts, the regulation of the conduct of ministerial officers, clerks, and inferior assistants and attendants, which it is well to read, but which it is not important to bear ac.tively in the memory, and which call for no special comment. We shall confine our discussion of the sections of 'these chapters to those matters which pertain to the general practice in its rela- tion to the work of the attorney. § 29. Courts of Record and not of Record. (Co. Civ. P. §§ 1-4.) — The Code commences with an enumeration of the courts referred to in its subsequent provisions. This enumer- ation includes all the judicial tribunals existing by State au- thority except the Courts Martial and the Court of Arbitration. The courts mentioned are classified as courts of record (g 2) and courts not of record (§ 3). A court of record, as defined by Blackstone, is one "whose acts and judicial proceedings are enrolled for a perpetual memorial and testimony, which rolls are called the records of the court, and are of such high and supereminent authority that their truth is not to be called in question " (3 Black. Com. 24). They are distinguished also as having a clerk and a seal. (30) § 30.] CASES NOT PROVIDED FOR BY THE CODE. 3 1 The distinction between Courts of Record and Courts not of Record under the Code does not appear to follow the common law, but to be an arbitrary classification. There is no such line of difference in the attributes of these several courts as will enable us to set off upon principle those which are to be denom- inated Courts of Record from those which are not to be so denominated. Thus there seems to be no essential distinction between the powers of the Justice's Court of the city of Albany (§§ 3207-3223), which is a Court of Record (§ 2), and those of the Justice's Court of the city of Troy (§ 3223), which is not a Court of Record. A classification of the courts under these designations, how- ever, is convenient, and perhaps necessary by reason of the ref- erence in the Constitution to courts as of record and not of record. The Constitution provides that justices of inferior courts not of record may be removed after a hearing by such courts as may be prescribed by law (Art. VI., § 18), and they cannot be removed by the legislature as judges of the higher courts may be (Art. VI., § n), so also judges of courts of record in the cities of New York, Brooklyn, and Buffalo cannot practice as attorneys (Art. VI., § 21). Allusion is also occasionally made in the Code to courts as of record and not of record. It is well, therefore, that the character of the court should be fixed by statute, and not left to the uncertainties of the common-law definition. There is a distinction between courts of general jurisdiction and courts of limited or special jurisdiction, which is of practical importance, and which is in general similar to the common-law distinction between courts of record and courts not of record ; so that these designa- tions are sometimes used interchangeably. The jurisdiction of a court of general jurisdiction is presumed, and its records are conclusive evidence until set aside (Ferguson v. Crawford, 70 N. Y. 253), while the jurisdiction of courts of limited or special jurisdiction must always be shown, and its judgments become evidence only when accompanied by proof of the juris- dictional facts upon which the authority of the court to render them depends. People, etc. v. The Warden, 100 N. Y. 20. § 30. Cases not provided for by the Code. (Co. Civ. P. § 4.) — The courts mentioned in the first article of the Code, unless it is otherwise prescribed, may exercise the jurisdiction ? 32 COURTS: THEIR JUDGES AND OFFICERS. [CH. II. and powers vested in them by law at the time of the adoption of the Code, according to the course of practice of the court. The Code does not attempt to alter the previously existing powers or practice of the courts, except in the particulars which are made the special matter of enactment. It will, therefore, be found that the courts are vested with powers inherent in judi- cial tribunals which are not affected by the Code. In matters of practice not governed by the Code, we must have recourse to the practice ^as it formerly existed. By Rule "9% of the general rules of practice, it is provided that " in cases where no provision is made by statute or by the rules of court, proceedings shall be according to the customary practice as it formerly existed in the Court of Chancery or Supreme Court in cases not provided for by statute, or by the written rules of these courts." § 31. Sittings of the court to be open. (Co. Civ. P. § 5.) — The sittings of every court within the State must be public and every citizen may freely attend, except in certain prescribed cases excepted on the grounds of public morality and decency. An order of a judge clearing a court-room of spectators, al- though improperly made, will not render a judgment given at such a sitting of the court invalid. See 35 Hun 667, cited in 1 Rumsey's Pr. p. 4. § 32. Court not to sit on Sunday. (Co. Civ. P. § 6.)— At common law in a civil suit process could neither be issued nor returned on Sunday. VanVechten v. Paddock, 12 Johns. 178. The maxim of the law is, Dies dominicus non est juridicus, and as a gen- eral rule judicial proceedings in a civil action taken upon Sun- day are void, but a court may be held open to receive a verdict on that day, or to discharge a jury, and in criminal cases a mag- istrate may exercise his jurisdiction when it is necessary to pre- serve the peace or to arrest, commit, or discharge persons charged with an offence. Judgment in a civil action cannot be entered on Sunday (15 Johns. 119), and a judgment so entered being void, a valid entry of judgment may be made on a subse- quent day. Allen v. Godfrey, 44 N. Y. 433. The Penal Code forbids the service of process on Sunday except in case of breach of the peace, or in criminal cases or where there is express au- thority of statute. Pen. Code, § 268. §§ 33. 34-J GENERAL CONTEMPTS. 33 The Saturday half-holiday act does not prohibit the holding of court upon that day after twelve o'clock {People v. Kearney, 47 Hun 129), nor does it prohibit the service of papers in an action after that hour. Didsbicry v. Van Tassel, 31 State R. 204 ; s. c. 56 Hun 423. Malicious service of process on Saturday on persons who ob- serve that day regularly as a religious holiday, is a misdemean- or. Pen. Code, § 271. § 33. Some special powers of Courts of Record. (Co. Civ. P. § 7.) — Section seven specifies three functions of Courts of Record, which are of universal application. The power (1) to issue a subpcena, (2) to administer an oath to a witness, and (3) to devise and make new processes and forms of proceedings. It is not to be inferred, however, that these are the only or the distinguishing powers of Courts of Record, or that in these particulars Courts of Record are peculiar. CONTEMPTS OF COURT. (Co. Civ. P. §§ 8-14.) § 34. General. — The offences which are denominated con- tempts of court are offences against the administration of justice and are punishable in a manner more or less summary, other than by the ordinary forms of procedure in criminal and civil actions. It is essential to the very being of a court that its deliberations should be undisturbed and its mandates reverenced. In some instances immediate action is needed to preserve the respect and dignity due to the administration of law. In such cases delays are not to be tolerated. Action to be effective must be prompt. There is danger of the abuse of arbitrary power, but a power more or less absolute is necessarily lodged somewhere to be used in emergencies which cannot be dealt with by set formalities. " Due process of law " which is guaranteed by the Federal Constitution to every citizen, embraces the seemingly arbitrary power to punish for contempt within the limits as- signed to it. These limits, however, are drawn rigidly and the instances in which the court may act are specifically enumerated, while those in which it may act summarily are very few. The Code distinguishes the offences which may be punished 3 34 COURTS: THEIR JUDGES AND OFFICERS. [CH. II. as contempts of court into criminal and civil contempts. When the offence is of such a character as to be particularly injurious to the good order of society, and the primary purpose is puni- tive, the contempt is termed criminal, but where the offence is such as to be primarily injurious to a particular person, and the purpose of the order is executive, although secondarily also punitive, the contempt is termed civil. The distinction between public or criminal contempts, and civil or private contempts, is discussed in People ex rel. Munsell v. Court of Oyer cV Terminer (101 N. Y. 245), where it was held to be neither a public nor private contempt for a juror during a trial to visit the scene where an alleged assault, the subject of inquiry, was committed. § 35- Criminal contempts- — Criminal contempts are specifi- cally enumerated in Section 8, and*there are ' no others " than those specified. The first two subdivisions have to do with the disturbance of good order in the sittings and proceedings of the court. The first, such as occur in the immediate view and presence of the court ; the second, those that occur elsewhere, but with similar effect. Instances of what would constitute such an offence as is here intended to be described will readily occur to the mind, — such as a disturbance while a court is in session which interferes with its proceedings, a breach of the peace in the presence of the court, threats to witnesses or jurors while in attendance before the court, insolent and offensive language or manner to a judge while in the performance of his judicial duties. Folkard's Starkie on Libel, § 805. The question as to what offences are within the first sub- division of § 8 as having occurred in the immediate view and presence of the court, was considered in People ex rel. Choate v. Barrett (30 State R. 728, affi'd 121 N. Y. 678), where the relator, a newspaper reporter, concealed himself in the jury room for the purpose of overhearing and reporting the deliberations of the jury. This conduct was held to be a contempt committed in the presence of the court, although the jury room was apart from that in which the judge presided. Subdivision 3 provides that the wilful disobedience to a lawful mandate of the court shall constitute a criminal con- ■§ 3S-] CRIMINAL CONTEMPTS. 35 tempt. A mandate is defined by § 3343, subdivision 2, as fol- lows : " The word mandate includes a writ, process, or other written direction issued pursuant to law out of a court, or made pursuant to law by a court or a judge, or a person acting as a judicial officer, and commanding a court, board, or other body, or an officer or other person named or otherwise desig- nated therein, to do or to refrain from doing an act therein specified." An illustration is found in the case of disobedience to an injunction order which may be punished as a criminal con- tempt (Stubbs v. Ripley, 39 Hun 626), and also as a civil con- tempt. It is no excuse for such disobedience that the order was made improvidently ; so long as it remains in force it is the duty of all parties to obey it. • People v. Dwyer, 90 N. Y. 402. But, if the order is absolutely void, for the reason that the judge who made it had no jurisdiction of the subject-matter, a person may disregard it, taking the risk of showing that the order never had any legal inception. People v. Edson, 51 Super. Ct. 238 ; Kamp v. Kamp, 59 N. Y. 212. Subdivision 4 presents the case of resistance wilfully offered to a lawful mandate. To prevent an officer by force from serv- ing process would be an offence of this kind. 5 Abb. Pr. 84. By subdivision 5, a refusal by a witness to be sworn or to answer to a proper interrogatory is punishable as a criminal contempt. The law of contempts particularizes each offence, and the specific act must be charged, and found, so that the offender may purge himself of contempt by doing the precise thing which he is required to do. Hence, where a witness was com- mitted for contempt until she should answer generally such legal and proper interrogatories as were propounded to her as a witness, it was held that the order should have directed her commitment only until she answered the particular questions which she had refused to answer. People ex rel. Jones v. Davidson, 35 Hun 471. So, § 11 requires that where the person is committed for a contempt, the special circumstance of his offence must be set forth in the mandate of commitment. Subdivision 6 relates to publications of reports of proceed- ings in courts. Any publication pending a suit reflecting on the court, the parties to the suit, the witnesses, the jurors, or l6 COURTS : THEIR JUDGES AND OFFICERS. [CH. II. the counsel is a contempt of court. Rapalje on Contempts, § 56. Thus it is a contempt to publish remarks in a newspaper which have a tendency to prejudice the public with respect to the merits of a cause depending in court (46 L. J. Ch. 375; 39 L. J. Ch. 398). But the publication of a true, full, and fair report of a trial, argument, decision, or other proceeding thereon can- not be punished as a contempt (§8, subd. 6). § 36. Proceeding for punishment of criminal contempt. (Co. Civ. P. §§ 10, 11.) — The proceedings for the punishment of a criminal contempt are not prescribed except by §§ 10 and 11. For offences committed in the immediate view and pres- ence of the court a person may be summarily punished. In such instances the judge's eye furnishes the evidence, and his mind the judicial tribunal, and his pen the executive act by which the guilt and the punishment are determined. The person so adjudged guilty of contempt may be punished by fine not exceeding $250, or by imprisonment not exceeding thirty days, or both (§ 9). He is practically without redress if the commit- ment is wrongful. He cannot be discharged on habeas corpus when one of the offences named in this section is specially and plainly charged in the commitment by a court, or officer, or body having authority to commit for the contempt so charged (§ 2032). An appeal would not bring up any record upon which the appellate court could examine into the fact. Hence, judges are properly very careful about making such commit- ments. When the offence is not committed in the view of the court, the party charged must be notified of the accusation and have a reasonable time to make a defence (§ 10). In such a case, of course the evidence as submitted upon the hearing would furnish a record upon which the accused if convicted could base an appeal. But, although the contempt is committed in the presence of the court, the judge is not bound to proceed -thereon summarily. He may require that the proofs be pre- sented before him formally. People v. Barrett, $0 State R. 728. Criminal contempts are made penal by § 143 of the Penal Code. § 37. Civil contempts. (Co. Civ. P. § 14.) — Conduct which can be treated as a civil contempt must be such as to defeat, impair, impede, or prejudice the right or remedy of a party, and it must be made to appear and be adjudicated that the alleged misconduct has that effect. § 37-] CIVIL CONTEMPTS. 37 In Fischer v. Raab (81 N. Y. 235) an order was made punish- ing a party for contempt in refusing to take up the report of a referee and pay his charges. The application was made on the part of the successful party. It was held that there was no evi- dence of injury ; hence, no right to proceed as for a contempt. The remainder of this section enumerates the specific offences which may be punished as civil contempts. The first subdivi- sion relates to the misbehavior in office of attorneys and other officers of the court, or the disobedience by them of the orders of the court. The second subdivision includes as a civil contempt putting in fictitious bail or a fictitious surety by a party, or deceit or abuse of the process of the court. Whether a surety (not a party) who swears falsely in his jus- tification as bail or surety in judicial proceedings can be pun- ished as for a contempt, is a subject of conflicting authority. In the Superior Court (Egan v. Lynch, 49 Super. 454), and in the Common Pleas {Simon v. Aldine Pub. Co., 12 Civ. Pro. 290), pro- ceedings for contempt have been sustained, while the Supreme Court at Special Term {Norwood v. Ray Mfg. Co., 11 Civ. Pro. 273) holds the contrary. It is to be observed that the language of the statute is limited to " a party to the action or special proceedings." By subdivision 3, a party and attorney or other person may be punished for the non-payment of a sum of money ordered by the court to be paid where, by law, execution cannot be awarded for the collection of such sum, or for any other disobedience to the lawful mandate of the court. Where an attorney retains money in his hands which belongs to his client, he may be ordered to pay it over, and disobedience to the order will be punished as a contempt. The statute is in this respect substantially an exposition of the common law. Bowling Green Savings Bk. v. Todd, 52 N. Y. 489. If an attorney collects money under an erroneous order, he may be compelled to restore it, if it still remains in his hands {Forslman v. Schulting, 108 N. Y. no), but if without fraud he has paid it over to his client, he cannot be required personally to refund it. Wilmerdings v. Fowler, 55 N. Y. 641. So a receiver or other officer of the court, who is directed by the court to do a specific act, may be punished for disobedience, as for contempt. Clark v. Bininger, 75 N. Y. 344. Thus, an attorney who has 38 COURTS : THEIR JUDGES AND OFFICERS. [CH. II. been appointed referee to sell premises under a decree of fore- closure, and who has surplus money in his hands, which he has been directed to deposit, may be punished as for a contempt in refusing to do so. Steele v. Gunn, 19 State R. 654. By subdivision 4, a person may be punished for assuming to be an attorney or other officer, or for the rescue of property, or for preventing or disabling a witness from attending at court, or from any unlawful interference with the proceedings of a court. A person may interfere with the process or control or action of the court in a pending litigation unlawfully and without au- thority, and may be punished therefor, although he is not a party to the action. Thus where a person who was not an officer of a corporation actively and intentionally, through his control over the officers, induced them to disobey the judgment of the court," he was held guilty of contempt within this subdi- vision. KingN. Barnes, 113 N.Y. 476. An injunction against a cor- porate body is binding upon all individuals acting for the cor- poration to whose knowledge the injunction may come. People v. Sturtevant, 9 N. Y. 263. Corporations may thus be punished for contempt. People v. Pendleton, 64 N. Y. 622. The advice of counsel if honestly given and received, while it is not an excuse for disobedience, may be taken into consideration in determin- ing the extent of the penalty {Erie Railway v. Ramsey, 45 N. Y. 637), and it may relieve from the charge of wilful contempt. By subdivision 5, a witness duly subpoenaed may be pun- ished as for a civil contempt for neglecting to obey a subpoena to attend, or to be sworn or to answer. Proceedings to compel the attendance of a witness and to punish him for non-attend- ance are regulated by § 855 et sea. Subdivision 6 relates to offences by jurors which are punish- able as contempts. By subdivision 7, an inferior magistrate or a judge, or other officer of an inferior court, may be punished for contempt in proceeding contrary to law in a case or matter which has been removed from his jurisdiction, or for disobedience to a lawful order or mandate of the court. By subdivision 8, there is reserved to the court the common- law power which is had to punish for contempt in cases not specified. §§ 38-40.] LIMITATIONS ON ARREST IN CIVIL ACTIONS. 39 § 38. Proceedings to punish for civil contempt. — The proceedings to punish a civil contempt are particularized in §§ 2266 to 2292. Except for offences committed in the immedi- ate view and presence of the court or offended tribunal, in which case summary punishment may be administered, the accused is brought before the court by an order requiring him to show cause why he should not be punished for the offence stated as for a contempt, or by an attachment against the per- son which is in effect an order to the sheriff to arrest the offender, and bring him before the court or tribunal to answer for the alleged contempt. The further proceedings when the offender is thus brought before the court in the case of civil contempts, are regulated by the sections above cited. The accused is afforded an opportunity to produce his evidence, and a hearing in the nature of a trial is had before judgment. § 39. Limitations on arrest in civil actions. — There are two instances which are guarded from arrest by proceedings for contempt or otherwise. The first is mentioned in § 15, to the effect that a person shall not be arrested or imprisoned for the non-payment of costs awarded, otherwise than by a final judgment or a final order made in a special proceeding insti- tuted by a State writ, except where an attorney or other officer is ordered to pay costs for misconduct, or a witness is ordered to pay costs for non-attendance. The second instance is more general and abolishes imprisonment for debt in this State, except as permitted by the provisions of the Code upon a judg- ment or order requiring the payment of money due upon a contract express or implied, or as damages for non-performance of a contract. §40. The general rules of practice. (Co. Civ. P. §§ 17, 18.) — There are eighty-five general rules of practice applicable to all the courts of the State, and governing a variety of subjects, to which reference must constantly be had. The rules now in force were adopted at a convention of the General Term judges held in October, 1887, and went into effect January 1, 1888. They were, with modifications, the rules which had been formerly promulgated. The rules must be consistent with the provisions of the Code; they may not alter, modify, or annul a provision of the statute. Gormerly v. McGlynn, 84 N. Y. 284. If a rule 40 COURTS: THEIR JUDGES AND OFFICERS. [CH. II. is inconsistent with the statute, it is void. Rice v. Ehele, 55 N. Y. 518. In addition to the general rules of practice, there are special rules of the several courts regulating the calendar practice, and certain other matters to which reference must be had. §41. Formalities of writs and process. (Co. Civ. P. §§22- 24.) — The word " writ " is not ordinarily employed in the Code, except in connection with what are termed " State writs " (§ 1991). The sections here found are taken from the pro- visions of the Revised Statutes (2 R. S. 275, §§ 8-9, Laws of 1847, c. 280 and c. 470), and preserve the phraseology of the old practice. A writ or other process must be in the name of the people of the State, and each writ, process, record, pleading, or other pro- ceeding in a court or before an officer must be in the English language, and made out on paper in legible characters, in words at length and not abbreviated. Technical words and the com- mon English abbreviations, and either Arabic or Roman num- bers, may be used in the customary manner (§ 22). A writ or other process issued out of a court of record must be tested, that is, witnessed, in the name of a judge of the court, on any day, returnable as prescribed by law. If no time is prescribed, then within the time fixed by the court, and when returned must be filed with the clerk. A writ or process is said to be " tested " when it is signed either by a judge of the court, or in the name of a judge of the court, with the seal of the court attached. As, "Witness Hon. , Justice of the Supreme Court, at the City of New York, on the day of , 189 ." § 42. Continuance of proceedings in case of vacancy or changes in judge. (Co. Civ. P. §§ 25, 26.) — These sections pro- vide for the continuance of proceedings in court, where there is a vacancy or change in the judges of the court, or by re-elec- tion, or by reappointment. After a judge is out of office he may settle a case or excep- tions, or make return of proceedings had before him while he was in office (§ 25). In New York and Kings Counties a special proceeding, insti- tuted before a judge of a court, may be continued from time to § 43-J JUDGES AND OFFICERS ACTING JUDICIALLY. 41 time before any other judge of the same court, with like effect as though it had been instituted originally before him (Co. Civ. P. § 26). § 43. Judges and officers acting judicially. (Co. Civ. P. §§ 46-54.) — The statute provides that a judge shall not sit when he is interested, or related by consanguinity or affinity to any party within the sixth degree, or when he has not heard the oral argument if there be one, but this last requirement is not binding on the judges of the Court of Appeals (§ 46). Consanguinity is the relationship of persons descending from the same common ancestor. Affinity is the relationship which exists between a husband and the blood relatives of his wife, or a wife and the blood relatives of her husband. It is a rule of the common law that no man can be a judge in his own cause. Consanguinity, however, was not a disqualifica- tion at common law. The statute being in derogation of the common law does not extend beyond its terms. In the Matter of Dodge &> Stevenson Mfg. Co., 77 N. Y. 101. A judgment by a judge disqualified by this section is absolutely void {Chambers v. Clearwater, 1 Abb. Ct. Ap. Dec. 341 ; Wigand v. Dejonge, 8 Abb. N. C. 260) ; but in the case of In re Ryers (72 N. Y. 1) it was held that where a judge's interest is minute or remote and he has exclusive jurisdiction, he may act to prevent a failure of justice. In that case the authorities are discussed, but the doc- trine is one which will probably be applied with extreme rigor. In the Matter of Dodge &f Stevenson Mfg. Co. {supra) it was held that a judge was not disqualified to act judicially in pro- ceedings against a corporation by reason of his relationship to a person not a party who is a stockholder in the company. Chan. Sandford held himself disqualified to sit in a case in which one of the parties was a corporation in which he was a stockholder. Wash. Ins. Co. v. Price, 1 Hopk. 1. In the case of Oakley v. Aspinwall (3 N. Y. 547), one of the judges of the Court of Appeals was a second cousin of defend- ants. The defendants being sureties and fully indemnified so that they were in fact merely nominal parties, the judge (by request of counsel for both parties) sat during the argument of the appeal. The judgment, however, was vacated, the court holding that where judicial disqualification existed, it could 42 COURTS: THEIR JUDGES AND OFFICERS. [CH. II. not be waived by consent, nor was it any less a disqualification because the defendants' interest was remote. This article of the Code also provides that no judge shall be interested in the costs of an action brought before him, or in a court of which he is a member, except only in an action in which he is a party (§ 47). He is not disqualified from hearing and deciding a matter by reason of his residence in a community interested therein (§ 48), but he may not practice or act as an attorney in a court of which he is a member, nor may his law partner practice in such a court (§ 49). The Constitution (Art. 6, § 2 1,) prohibits judges of the Court of Appeals or of the Supreme Court, or of any court of record, from practicing as attorneys in any court or from acting as referees, and the same article (§ 8) provides that no judge shall sit in review of a decision made by himself, or any court of which he was a sitting member. No person can hold office as a judge longer than the last day of December after he is seventy years of age (Con. Art. 6, § 13). ATTORNEYS AND COUNSELLORS-AT-LAW. We can conveniently discuss this topic under the following heads : (1). Admission to practice ; (2). Powers ; (3). Com- pensation ; (4). Statutory restrictions ; (5). Substitution ; (6). Disbarment. § 44. Admission to practice. — Any citizen of the United States, of any race or sex, twenty-one years of age, and resident of the department in which he applies, may seek admission to the bar, and may be admitted to practice in the manner provided by the statute and rules made pursuant to the statute (§ 56). He must pass an examination at a general term of the Supreme Court after a clerkship of three years, begun after the age of eighteen (Ct. of Ap. Rule 3). An allow- ance of one year of such clerkship may be made to college graduates (Ibid). Attendance at law school may take the place * of clerkship, but in no case shall an applicant be admitted to^ practice without having served a clerkship in the office of a practicing attorney of a Supreme Court for the period of at least one year (Ibid.). The term of clerkship is inaugurated in the case of one not a college graduate by a Regents' examination. § 45-J POWERS OF ATTORNEYS. 43 a certificate of which must be filed with the clerk of the Court of Appeals. Compliance with the rule requiring the filing of the Regents' certificate is mandatory. The certificate cartwst be filed nunc pro tunc. To entitle the applicant to an examination, he must make proof of four things (Ct. of Ap. Rule 4), viz.: 1. That he is a citizen twenty-one years of age, resident of the department, and that he has not been examined and refused elsewhere within three months. 2. That he is a person of good moral character. (This may be proved by a certificate of an attorney.) 3. That. before commencing his clerkship or course of study, he graduated at college or passed the Regents' examination. (This may be proved by diploma or certificate.) 4. That he has served a clerkship or pursued a course of study prescribed by the rules as a substitute. The attorney with whom the clerkship is commenced is required to file a certificate in the office of the clerk of the Court of Appeals. The clerkship commences from the time of such filing, and a certified copy of the certificate and of the filing is required to be produced at the time of the application for examination (Ct. of Ap. Rule 5). With regard to attorneys in other States, the rules provide that such as have been in practice in the highest courts of those States for three years may be admitted to practice here without an examination, upon motion at general term. Attorneys of other States who have not been in such practice for three years, may be admitted to examination here if they have served a clerkship of one year. § 45. Powers. — An attorney-at-law has authority, by virtue of his employment, to do, on behalf of his client, all acts in or out of court necessary or incidental to the prosecution or man- agement of the suit, and which affects the remedy only and not the cause of action. Moulton v. Bowker, 115 Mass. 36; Gray, C. J. Hence he may discontinue an action because that relates to the conduct of the suit and is within his retainer (Barrett v. 3d Av. B.B., 45 N. Y. 628), but he cannot settle a suit or release the cause of action or conclude his client in relation to the subject in litigation without his consent (Barrett v. 3d Av.RR., supra ; Shaw v. Kidder, 2 How. Pr. 244) ; he may consent to a trial by 44 COURTS: THEIR JUDGES AND OFFICERS. [CH. II. reference and stipulate as to the referee's compensation [Mark v. City of Buf., 87 N. Y. 184) ; he may incur the necessary- expense of preparing for trial, such as services of an expert accountant {Cove// v. Hart, 14 Hun 252) ; he may extend the time of appeal (12 Abb. N. S. 221), or open a default (28 N. Y. 285); after judgment he may issue execution against property (3 Barb. 584), or against the person (95 N. Y. 268), or he may withdraw an execution (28 N. Y. 285); he may institute supple- mentary proceedings (69 N. Y. 96); he may satisfy a judgment within two years after its entry (Code, § 1260), but only upon the receipt of payment. If he satisfies the judgment without payment, the court will set aside the satisfaction (15 How. Pr. 539 ; 45 N. Y. 665). He cannot obligate his client by employing counsel (5 Paige 312), nor destroy his client's right of action by a stipulation not to appeal or seek a new trial (11 Abb. Pr. 66); nor can he submit to arbitration (86 N. Y. 472). He can- not take an affidavit to be used in a case in which he is an attorney. The relation of an attorney to his client is ended by the entry of final judgment in the action (1 Hill 656). By rule of court it is provided (Rule 5) that in no case shall an attorney or counsellor be surety on any undertaking or bond required by law or by the rules or by any order of a court or judge in an action or proceeding, or be bail in any civil or criminal case. This rule does not apply to one who has abandoned the practice of the law and is engaged in other business, although his name still remains on the roll of attorneys (8 N. Y. Civ. Pro. 420). § 46. Compensation. (Co. Civ. P. § 66.) — An attorney's employment arises, and is proved, as in the case of other con- tracts, but an attorney retained generally to conduct a legal proceeding enters into an entire contract, and is not entitled to compensation until the entire service is rendered, unless he stipulates otherwise. Tenney v. Berger, 93 N. Y. 526; Matter of H., 93 N. Y. 381. He may agree with his client upon his com- pensation, and it may be made contingent on his success and payable out of the proceeds of the litigation. Fowler v. Cal/an, 102 N. Y. 395. This was otherwise at common law and by our early statutes. Agreements such as are here permitted would by them have been obnoxious to the rules against champerty and mainten- § 47-J ATTORNEY'S LIEN. 45 ance. Maintenance is the officious intermeddling in a suit that no way belongs to one, by maintaining or assisting either party with money or otherwise to prosecute or defend it. Champerty is a species of maintenance, being a bargain with the plaintiff or defendant, campum partice, to divide the land or other matter sued for between them if they prevail at law. An interesting account of the rise and growth of the law of maintenance may be found in the opinion of Chan. Sandford in Thallhimer v. Brinckerhoff (3 Cow. 623). The old rules relating to champerty and maintenance no longer prevail in this State, except so far as they are preserved by statute. An attorney cannot advance or agree to advance the money needed to carry on the prosecution as an induce- ment to the placing of a claim in his hands for prosecution (§§ 73—74; Fowler v. Callan, 102 N. Y. 395), and he cannot buy certain claims for the purpose of suit (§ 73). Coughlin v. N. Y. C. R.R., 71 N. Y. 443- § 47. Attorney's lien. (Co. Civ. P. § 66.) — An attorney has a lien upon his client's papers and documents which are placed in his hands for the purposes of suit ; as upon a bond and mortgage in his hands for foreclosure (52 N. Y. 489). But this does not extend to papers which come into his hands otherwise than in the course of his professional employment (3 Daly 199). By the Code (§66) the attorney also "has a lien upon his client's cause of action or counterclaim which attaches to a verdict, report, decision, or judgment in his client's favor, and the proceeds thereof into whosesoever hands they may come ; and cannot be affected by any settlement between the parties before or after judgment." The exact nature of this lien and how it is to be enforced when the parties have effected a settlement without compensat- ing the attorney, has given rise to conflicting decisions and is not entirely clear. Two cases may arise: (1). The settlement may be made before judgment. In that case, if the cause of action is one that is assignable, the attorney may continue the action and proceed to judgment for the purpose of collect- ing the amount due to him under his lien (Quinlan v. Birge, 43 Hun 483; Stahl v. Wadsworth, 13 Civ. Pro. 32), but the attorney cannot proceed without leave of court, which it is the practice of the court to grant on notice to all interested parties (same 46 COURTS : THEIR JUDGES AND OFFICERS. [CH. II. cases). But when the cause of action is not assignable, as a claim for damages for assault and battery, the attorney can acquire no lien for any greater amount than for the costs. Oliwell v. Verdenhalven, 17 Civ. Pro. 362. The spectacle of an attorney compelling parties to litigate so that he may be paid out of the result of the contest is not edifying. Even though the claim be collusively settled for the purpose of cheating the attorney, that does not give him a right of action against the parties to recover damages for the loss he has sustained {Randall v. Van IVagenen, 115 N. Y. 527), nor can he maintain an equitable action to enforce his inchoate right (Ibid.). A settlement between the parties actually effected is binding on them although the attorney does not assent. Coughlin v. N. Y. Cent. R.R., 71 N. Y. 443; Root v. Van Duzen, 32 Hun 63. (2). When the settlement or satisfaction has been made between the parties privately after judgment, and the judg- ment has been satisfied by the client without recognition of the attorney's lien, the attorney may move to set aside the satisfac- tion of judgment, and for leave to enforce the judgment to the extent of his lien (1 E. D. Smith 598), but he may not proceed to enforce the judgment without application to the court (3 Civ. Pro. 141). Though the statute provides that the attorney's lien attaches to the proceeds of a verdict, report, decision, or judgment, " in whosesoever hands they may come " (§ 66), it is not apparent just how far or by what means the attorney may follow such proceeds. In Goodrich v. McDonald (112 N. Y. 157, reversing 41 Hun 235), it was held in a case arising before this section was put into its present form, that an attorney could not follow pro- ceeds which had been invested in a bond and mortgage so as to fasten his lien thereon. What rule will prevail under the section as it now reads remains to be determined. In the Matter of Knapp (85 N. Y. 284) will be found a full considera- tion of the nature of the attorney's lien. In that case the attorney having unsuccessfully brought an action against the city, made efforts to secure the passage of an act legalizing certain proceedings and providing for the submission of the claim to a commission before which it was allowed. Upon the award so secured it was held that the attorney had a lien. An attorney has a lien upon a fine imposed for contempt (45 § 48.] STATUTORY PROHIBITIONS. 47 Super. Ct. 583), and he has also a lien upon motion costs (8 Civ. Pro. 352). § 48. Statutory prohibitions affecting attorneys— Pur- chase of claims and inducement of litigation. (Co. Civ. P. §§ 70-81.) — Section 73 provides that an attorney shall not, directly or indirectly, buy or be in any manner interested in buying a bond, promissory note, bill of exchange, book-debt, or any other thing in action, with the intent and for the pur- pose of bringing an action thereon. But this provision does not prohibit an attorney from dis- counting or purchasing bonds and mortgages, and notes and other things in action, either for investment or profit or for the protection of other interests, and such purchase is not made illegal by the existence of the intent on his part at the time of purchase, which must always exist in the case of such pur- chases to bring suit upon them, if necessary, for their collec- tion. To constitute the offence, the primary purpose of the purchase must be to enable him to bring a suit, and the intent to bring a suit must not be merely incidental or contingent. Moses v. McDivitt, 88 N. Y. 62, Rapallo, J. The aim of the statute was to prevent attorneys from purchasing claims for the express purpose of instituting suits thereon, and thus oppressing debt- ors and making costs. Wetmore v. Hegeman, 88 N. Y. 73. When the purpose of such a purchase is to bring an action thereon in the interest of the attorney, and it is induced by the procurement of the attorney, it comes within the act, whether the transfer be taken in the name of the attorney or that of any other person. Arden v. Patterson, 5 John. Chan. 44. When the prohibited purpose is attempted, either directly or indirectly, by the attorney either in person, or through the agency of another, no cause of action can arise out of the pro- hibited transfer. Wetmore v. Hegeman, 88 N. Y. 73; Browning v, Marvin, 100 N. Y. 144. So that in an action brought on such purchased claim the defendant may set up as a defence that the claim was purchased in violation of the statute. Section 74 provides that an attorney shall not, either before or after an action, promise to give a valuable consideration to any person, as an inducement to placing in his hands a demand of any kind for the purpose of bringing an action thereon. A violation of this section, unlike a violation of the previous 48 COURTS : THEIR JUDGES AND OFFICERS. [CH. II. one, does not constitute a defence to an action brought, but merely subjects the attorneys to punishment and removal. In Coughlin v. Cent. R.R. Co. (71 N. Y. 443) it was said that an agreement by an attorney to bring an action upon a con- tingent fee, and to advance the moneys necessary to conduct it, was a violation of this section. An attorney who is guilty of any deceit or collusion, or con- sents to any deceit or collusion, with the intent to deceive the court or a party, forfeits treble damages, and is also guilty of a misdemeanor (§ 70). The term "deceit" implies concealment or false suggestion to injure a party or mislead the court, while acting in a professional capacity, or in the course of profes- sional employment (26 State R. 641). It has been held that this section has reference to the conduct of the attorney in an action, and does not relate to wrong and dishonest advice given to the client when no action is pending. Looffv. Law- ton, 97 N. Y. 478. An attorney who wilfully delays his client's cause with a view to his own gain, or wilfully receives money, or an allowance for or on account of money, which he has not laid out or become answerable for, forfeits to the party injured treble damages (§ 71); and if he permits a person not being his general law partner, or a clerk in his office, to sue out a man- date, or prosecute or defend an action in his name, he and the person who so uses his name each forfeits to the party against whom the mandate has been sued out, or the action prosecuted or defended, the sum of fifty dollars, to be recovered in an action (§ 72). The offences prohibited by these sections are made penal, and punishable as a misdemeanor by §§ 148, 149 of the Penal Code. § 49. Substitution. — A client may change his attorney, but the court will provide that the attorney's pecuniary interest be protected before ordering a substitution (53 Hun 455). Rule 10 provides that "an attorney may be changed by consent of the party and his attorney, or upon application of the client, upon cause shown, and upon such terms as shall be just, by the order of the court or a judge thereof, and not otherwise." A party wishing to change his attorney may apply to the court for an order directing the substitution of another attorney; and the order made will usually provide for the payment or § 50.J DISBARMENT. 49 security of the fees of the outgoing attorney, or the judge may fix the amount. If there is a dispute as to the amount of his compensation, the court may order a reference to ascertain what amount is proper. If the attorney voluntarily wishes to cease to act for his client, he cannot refuse to perform his duties as an attorney because his bill for services has not been paid. He must either go on and render the entire service or surrender his employment. Matter of H., 93 N. Y. 381; Tuck v. Manning, S3 Hun 455. The client may be permitted to change his attorney although the attorney has a contingent interest in the recovery. In re Paschal, 10 Wal. 483. § 50. Disbarment. (Co. Civ. P. §§ 67-69 )— These sections provide that an attorney who is guilty of any deceit, malprac- tice, crime, or misdemeanor, or who is guilty of any fraud or deceit in proceedings by which he was admitted to practice as an attorney, may be suspended from practice or removed from office by the Supreme Court at General Term. Conviction for a felony is also ground for disbarment. Proceedings for disbarring an attorney are instituted by sworn charges presented to the General Term upon which an order will be made directing the attorney to appear and answer. The General Term itself may cause charges to be preferred. In re Percy, ifi N. Y. 651. A copy of the charges must be served (§ 68). The accused is entitled to a trial, but he is not entitled to a trial by jury. In re Eldridge, 82 N. Y. 161-167. The trial, however, must be conducted on common-law rules of evidence; In re Eldridge, 82 N. Y. 161-167. Among the offences for which an attorney may be removed are the altering of a verification (In re loew, 50 How. Pr. 373), manufacturing evidence (In re Gale, 75 N. Y. 526), and the conversion of money delivered to him by his client (In re Burd, 9 Wkly. Dig. 562); and an attorney may be removed for general bad character (In re Percy, 36 N. Y.651). It remains to be observed that attorneys are subject to the control of the court by summary proceedings. The court may, on motion, direct an attorney to pay over moneys received by him (In re Knapp, 85 N. Y. 284; In re Patterson, 44 State R. 839), or to return a paper received by him (In re H., an attorney, 87 N. Y. 521), or to settle his accounts and turn over property (Kuhne 4 5'o COURTS: THEIR JUDGES AND OFFICERS. [CH. II. v. Daily, 23 Hun 282), but the court will only permit these sum- mary proceedings against an attorney for acts done in his pro- fessional capacity. In re Husson, 26 Hun 130. Orders of the court directing an attorney may be enforced by attachment. Bowling Green Savs. B'k v. Todd, 52 N. Y. 489. § 51. Proceedings on death or removal of attorney. — If an attorney dies, is removed or suspended, or otherwise becomes disabled to act at any time before judgment in an action, no further proceedings can be taken in the action against the party for whom he appeared until thirty days after notice to appoint another attorney has been given to that party, either personally or in such other manner as the court directs (§ 65). In the cases provided for by this section a notice must be served on the party personally or by mail. If the party neg- lects to appoint another attorney, further proceedings in the action can be taken upon notice to the party personally (17 Civ. Pro. 86). If the notice cannot be served personally an applica- tion may be made to the court for an order directing the mode of service by mail. The forms are found in Abbt. Sup. under §65. SHERIFFS. § 52. Service of process. — The sheriff to whom a mandate is directed and delivered, must execute the same according to the command thereof and make return of his proceedings under his hand (§ 102). Sheriffs are required to give receipts for papers delivered to them (§ 100), and to deliver copies of all papers to persons served (§ 101). For a failure to execute pro- cess the sheriff is liable " to the party aggrieved for the damages sustained by him " (§ 103). A sheriff, as we have seen, may be proceeded against by con- tempt for misbehavior in his office or trust, or for a wilful neg- lect or violation of his duty, or for disobedience to a lawful mandate (§ 14). The rules of court (Rule 6) provide, that if he fails to return, deliver, or file any process or other paper, any party entitled to have such act done may serve a notice requir- ing him to make the return within ten days, or show cause at a Special Term why an attachment should not be issued against him. v § 53-J POWER OF THE COUNTY. 51 In addition to this summary remedy, he is also liable in an action for damages for neglect or refusal to return an execution, and in such an action he is presumptively liable for the amount of the judgment. He may, however, show in mitigation of damages that defendant had no property. Ledyard v. Jones, 7 N. Y. 550 ; Pack v. Gilbert, 17 Civ. Pro. 399, and note. In Bow- man v. Cornell (39 Barb. 69) it is said that when a sheriff neg- lects to execute process in his hands within the time required by law, he is allowed but one defence, to wit, that the defend- ant had no property out of which he could have made the money had he endeavored ever so faithfully to do so, and the measure of damages is presumably the amount of the execution. § 53- Power of the county— Posse comitatus. (Co. Civ. P. §§ 104, 105. 106, 107.) — The sheriff is clothed with ample authority to execute all process of the court. If he has reason to apprehend that resistance will be made to the execution of such process, he may command all the male persons in his county, or as many as he thinks proper, and with such arms as he directs, including any military organization armed and equipped, to assist him in overcoming the resistance (§ 104). Resisters may be punished as for a misdemeanor (Pen. Code § 143), and also as for a criminal contempt (Co. Civ. P. § 8). When the sheriff has the power to execute process his authority is a justification to all who help him, but if his authority is not sufficient to justify him, neither can it justify those who aid him ; they are bound to obey when his commands are lawful, otherwise not. Thus, if the sheriff attempts to make a levy under an execution against A upon certain property, and calls upon bystanders to assist him, if the property taken is not A's property, the bystanders who help are guilty of a trespass, and if it is A's property they are liable to punishment if they refuse to help. Elder v. Morrison, 10 Wend. 128. A rule more conso- nant with justice has been applied in more recent cases in other States, where it has been held that the person who relies upon the official character of the sheriff, and renders him assistance upon such reliance, is protected by the law if he confines him- self to the order and direction of the sheriff (71 Mich. 377 ; s. c. 38 N. W. R. 885 ; 34 Vt. 69 ; 83 Ala. 60 ; s. c. 3 So. Rep. 441). A person who refuses to assist the sheriff without lawful cause is guilty of a misdemeanor (§ 106). If the resources at the 52 COURTS: THEIR JUDGES AND OFFICERS. [CH. II. command of the sheriff in his county are not sufficient, the Gov- ernor must, on the application of the sheriff, order such a mili- tary force from another county or counties as is necessary (§ 107). We are brought to realize at the very outset that the admin- istration of law rests ultimately on force. We observe also the distribution of duties essential to well-ordered society so that the exercise of power to compel obedience is not lodged with the officer who adjudges the rights of the parties. The adminis- tration of justice secures a strong hold upon the regard of citi- zens, and ready submission is yielded to its judgments when litigants believe that their rights are determined by an imperson- al appeal to abstract principles, and that the officer executing the mandate of the court is merely carrying into effect the result of such appeal over which he is powerless. § 54. Sheriffs jury. (Co. Civ. P. §§ 108, 109.)— If the sheriff has reasonable grounds to doubt whether the goods which he is required to take under execution or attachment are the prop- erty of the debtor, he is bound, if no indemnity is tendered to him by the plaintiff, to call a jury to try the title to the prop- erty. If they find it not to be the defendant's in the execution, he is justified in returning the execution nulla bona unless an indemnity is then tendered to him. If it is, he is bound to pro- ceed notwithstanding the finding of the jury. But a plaintiff is never bound to tender an indemnity until a jury have passed on the question of property. A sheriff acts at his peril in mak- ing a return of nulla bona under any other circumstances. Cur- tis v. Patterson, 8 Cow. 65. Before executing an attachment against goods not in possession of defendant, but of a third party, the sheriff may properly require a bond of indemnity. Chamberlain v. Beller, 18 N. Y. 115. Judge Folger, in Manning v. Keenan (73 N. Y. 45, 60), gives the following account of the sheriff's rights and responsibilities in making a levy. A sheriff is bound to levy upon goods in the hands of the defendant in the execution, on their being pointed out to him as the property of the defendant [Camp v. Chamber- lain, 5 Den. 198) ; at the same time he is bound at his peril to take only the goods of the defendant, and is liable as a trespasser if he takes those of a third person. Van Antwerp v. Newman, 2 Cow. 543. Hence it is that the law has provided the means of an '§§ 55. 5 6 -] ARRESTS BY SHERIFF. 53 inquisition by a jury to try the title, and the right to ask indem- nity from the plaintiff in the execution (Curtis v. Patterson, 8 Cow. 65); so that between these two liabilities he may go with safety. The sheriff's jury in New York County sits at the court house on Monday of each week, at 4 p.m. It is presided over by the sheriff or under-sheriff. In addition to the trial of title to property taken on execution or attachment, it assesses the dam- ages on default in actions where a writ of inquiry is issued for that purpose. § 55. Arrests by sheriff, conveying to jail and commit- ting a prisoner. (Co. Civ. P. §§ 110-119.) — The sections of this article provide in substance for the treatment of prisoners in civil arrests. Such prisoners must support themselves (§ no) unless they make oath to their inability to do so, in -which event their support is a county charge. The common law was most inhuman in its treatment of imprisoned debtors. Our statutes, however, have stripped arrest of most of its inconvenience, and have to a large extent deprived it of any value which it may have once had as a remedy. By § in it is provided that no person shall be imprisoned within the prison walls of a jail for a longer period than three months to enforce a recovery of less than $500, and not for a period of more than six months when the amount is $500 or over. It has been decided that this section relates only to a prisoner held on final process or mandate after the sum due from him has been adjudged. If he is confined within the walls, the amount he is adjudged to pay determines whether the imprison- ment shall end in three months or in six months. If he is on the jail liberties, the six months' period applies. Levy v. Salo- mon, 105 N. Y. 529. § 56. Jail liberties. (Co. Civ. P. §§ 145-148.)— Jail liberties are certain territory about the jail building within which per- sons imprisoned in civil actions may be permitted to go at large upon giving a bond to the sheriff that they will not go beyond the limits of such territory. The jail liberties in the several counties in this State are specified in §§ 145-148. In New York City the jail liberties are the whole city and county <§ MS)- 54 COURTS : THEIR JUDGES AND OFFICERS. [CH. II. Sec. 149 provides who may be admitted to the jail liberties ; thus, a person in custody of a sheriff by virtue of an order of arrest or of an execution in a civil action, or in consequence of a surrender in exoneration of his bail, is entitled to be admit- ted to the liberties of the jail upon delivering the sheriff an undertaking as provided in § 150, usually called a " limit bond." The condition of this undertaking is, that the person so in custody shall remain a prisoner, and shall not at any time or in any manner escape or go without the liberties of the jail until discharged by the course of law (§ 150). The sureties may be required to justify, that is, prove their pecuniary responsibility as in the case of bail on arrest, which will be considered hereafter. This undertaking being both for the protection of the sheriff and the party at whose instance the arrest is made, such party may on proof of its insufficiency apply for a recommitment of the prisoner (§ 152). The theory of bail is, that the prisoner is committed to the custody of his bail, who are thenceforth answerable for him. They are, in short, his jailors, but they may at any time discharge themselves of their liability by sur- rendering the prisoner to the sheriff. It has been quaintly said that " bail have their principal always, upon a string, and may pull the string whenever they please, and render him in their own discharge." Anon. 6 Mod. 231; Toles v. Adee, 84 N. Y. 240. They may seize or take him at any time whether in the day or night or upon Sunday, and at any place whether within the county where held to bail or in another county, or even in another State or country. He may be retaken even in church or while he is attending court as a suitor, and his dwelling ceases any longer to be a castle to him even in civil cases, for his bail have as much right to go into his home as he himself, and when they please to take him, and if entrance is refused, they may break open his doors to come at him, and seize him even in his bed. Crocker on Sheriffs, § 137. §57. Escapes. (Co. Civ. P. §§ 155-159.)— Sec. 155 defines an escape as the going at large beyond the liberties of a prisoner without the assent of the party at whose instance he is in cus- tody. The statute does not recognize any distinction between vol- §§ 58, S9-J ASSIGNMENT OF BOND FOR JAIL LIBERTIES. 55 untary and negligent escapes. Dunford v. Weaver, 84 N. Y. 445, 454. If after an escape the prisoner returns or is retaken, so as to be in custody before suit is begun by actual service of process against the sheriff, it is a defence. Middle District Bk. v. Deyo, 6 Cow. 732. Hence, since the sheriff cannot be served with process on Sunday, the prisoner may remain beyond the limits on that day, and if he returns before the sheriff is served on Monday, the sheriff will not be liable for an escape. The sheriff may set up as a defence to an escape that the pro- cess under which the prisoner was held was unauthorized and void. Goodwin v. Griffis, 88 N. Y. 630. But mere irregularity in process is no defence. Wesson v. Chamberlain, 3 N. Y. 331. The measure of damages for an escape are determined by the character of the process under which the prisoner was held. If he was held on an order of arrest or surrender by bail, the sheriff is liable only to the extent of damage which the plaintiff can show ; if he was held by virtue of any other mandate or surrender after judgment, the sheriff is answerable for the judgment or sum of money for which the prisoner was com- mitted (§ 158). § 58. Assignment of bond for jail liberties. (Co. Civ. P. §§ 160-171.) — This article relates to actions upon an assign- ment of a bond for jail liberties. It is to be observed that by § 160 a voluntary return of the prisoner or his recapture or surrender before suit brought constitute a defence to the bail, and any defence available to the sheriff will avail the bail. The judgment against the sheriff, if bail were notified and called in to defend, is evidence against the bail (§ 161), and in such case the sheriff may have a summary judgment against them. § 59. Coroners. (Co. Civ. P. §§ 172-181.) — The office of a coroner is both judicial and ministerial. As a judicial officer his mos-t important jurisdiction is to inquire into the cause of death in cases calling for investigation. His ministerial duties are those which he performs in the place and stead of the sheriff. It is quite apparent that when process runs against the sheriff it should not be entrusted to him for execution. The Code provides, therefore, that " in an action or special proceeding to 56 COURTS: THEIR JUDGES AND OFFICERS. [CH. II. which the sheriff of the county is a party, a coroner of the same county has all the power and is subject to all the duties of a sheriff in a case to which the sheriff is not a party, except as otherwise specially prescribed by law" (§ 172). Process may be directed either to a particular coroner of the county or to the coroners of the county generally. The num- ber of coroners in the several counties varies. In the city and county of New York there are four. CHAPTER III. THE SUPREME COURT, INCLUDING THE CIRCUIT COURT. CHAPTER III., TITLE II., CODE OF CIVIL PROCEDURE. § 60. Organization and terms of court. — We shall confine our attention in the first instance to the Supreme Court, and the practice there, leaving for future consideration any depart- ures from that practice in other courts. The history and organization of the Supreme Court have al- ready been touched upon (Chap. I.). The existing Constitu- tion provides (Art. VI. § 6), that " there shall be the existing Supreme Court with general jurisdiction in law and equity, sub- ject to such appellate jurisdiction of the Court of Appeals as now is or may be prescribed by law.'' § 61. Judicial districts. — By the Judiciary Act of 1847 follow- ing the adoption of the Constitution of 1846, the State was di- vided into eight judicial districts,which are at present constituted as follows : First District, the City and County of New York ; Second District, the Counties of Richmond, Suffolk, Queens, Kings, Westchester, Orange, Rockland, Putnam, and Dutchess ; Third District, the Counties of Columbia, Sullivan, Ulster, Greene, Albany, Schoharie, and Rensselaer ; Fourth District, the Counties of Warren, Saratoga, Washington, Essex, Franklin, St. Lawrence, Clinton, Montgomery, Hamilton, Fulton, and Sche- nectady; Fifth District, the Counties of Onondaga, Oneida, Os- wego, Herkimer, Jefferson, and Lewis ; Sixth District, the Coun- ties of Otsego, Delaware, Madison, Chenango, Broome, Tioga, Chemung, Tompkins, Cortland, and Schuyler ; Seventh Dis- trict, the Counties of Livingston, Wayne, Seneca, Yates, Onta- rio, Steuben, Monroe, and Cayuga ; Eighth District, the Coun- ts?) 58 THE SUPREME COURT. [CH. III. ties of Erie, Chautauqua, Cattaraugus, Orleans, Niagara, Genesee, Alleghany, and Wyoming. In each judicial district a certain number of justices are elected by the electors of the entire district. The official term of the justices is fourteen years from the first day of January next after their election (Cons, of 1846, Art. VI., § 13, as amended 1880). § 62. Judicial departments. — In- 1883 (Laws of 1883, c. 329, § 1) the State was divided into five judicial departments. The first consisting of the first judicial district, the second depart- ment of the second judicial district, the third department of the third and fourth judicial districts, the fourth department of the fifth and sixth judicial districts, and the fifth department of the seventh and eighth judicial districts. § 63. General Terms. — The division into judicial depart- ments was for the purpose of organizing and holding general terms of the Supreme Court (§ 219). There is a general term of that court in each judicial department, composed of a pre- siding justice and two associate justices, designated from the whole bench of justices of the Supreme Court, by the Gover- nor, as prescribed by the Code (§§ 219, 220, 221). A general term may be held by two justices, and the concurrence of two justices is necessary to pronounce a decision. If two do not concur, a re-argument must be ordered (§ 230). § 64. Special Terms. — The nomenclature of general and special terms appears to have originated in the sittings of the justices of the Supreme Court, as constituted before the Con- stitution of 1846. The justices of the court, then three in num- ber, sat in banc to hear such matters as might properly be brought before the full bench. Such sittings were known as general terms, while the terms of the court held by a single judge for the hearing of issues of law and motions, were de- nominated Special Terms. The Constitution provides that each judge may hold Special Term in any county (Art. VI. § 7). At least one Special Term must be held in each county in each year (§ 232). All the powers of the court other than appellate powers and the trial of issues of fact with a jury, unless otherwise specially ordered, may be exercised by the court at Special Term. Some of the §§ 65, 66.] CIRCUIT COURT. 59 Special Terms appointed to be held are designated as " Special Terms for equity cases and enumerated motions.' 7 At such terms issues of law and equity cases are tried, and various matters distinguished as enumerated motions, which are defined in Rule 38, are brought before the court. Other special terms are appointed to be held "for non-enumerated motions and chamber business." At these terms all motions which are to be made on notice to the other side are brought on for hearing. The equity powers of the court are exercised at Special Term, but the powers which the chancellor could rightfully exercise out of term, may be exercised by a judge at Chambers (14 N. Y. 575). Non-enumerated motions are to be heard at Special Term except when otherwise directed by law (Rule 38). § 65. Chambers. — Business done out of court is usually said to be done at Chambers, and business of this kind may be done by a judge at any place, but when acting out of court he only does what the statute expressly authorizes him to do. It is enough for present purposes to specify by way of illustration some of the orders which a judge may make out of court. He may grant an order of arrest, an attachment, an injunction (though in some instances against corporations the order must be made by the court); he may make an order to show cause, grant an order for an examination in supplemental proceedings, and he may conduct almost every interlocutory proceeding. In the first judicial district he may hearjnl motions except for a new trial upon the merits (§ 770). § 66. Circuit Court. — Circuit Court originated in the author- ity exercised by the Supreme Court justices to hold terms for the trial of causes with a jury under commission conferred by the early statutes. The State was divided into eight circuits by the second Constitution, and circuit judges were appointed pursuant to the provisions of that instrument. The office of Circuit Judge was abolished by the Constitution of 1846. Circuit Courts are recognized although not instituted by that instrument, which provides that any justice of the Supreme Court may hold special terms and circuit courts and may pre- side in courts of Oyer and Terminer in any county (Art. VI. § 7). Circuit Courts are for all practical purposes branches of the Supreme Court. All issues of fact triable by a jury in cases 60 THE SUPREME COURT. [CH. III. pending in the Supreme Court must be tried in the Circuit Court, and an issue of fact triable by the court or an issue of law may be tried in the Circuit Court (§ 976); except to try such cases or to refer them, or to hear motions for a new trial on the judge's minutes, nothing can be done at the Circuit (6 How Pr. 236). A Circuit Court has no equitable jurisdic- tion except so far as such jurisdiction may be necessary for the trial of equitable defences to common-law actions. Simis v. McElroy, 20 Civ. P. 288. § 67. Court of Oyer and Terminer. — There is in each of the counties of the State a Court of Oyer and Terminer with the jurisdiction conferred by sec. 22 of the Code of Criminal Procedure. The jurisdiction is of matters of a criminal char- acter. The court is now held by a justice of the Supreme Court without an associate. § 68. Jurisdiction of Supreme Court.— Section 217 of the Code provides that the general jurisdiction in law and equity which the Supreme Court of the State possesses under the provisions of the Constitution, includes all the jurisdiction which was possessed and exercised by the Supreme Court of the Colony of New York, at any time, and by the Court of Chancery in England on the 4th day of July, 1776, with the exceptions, additions, and limitations created and imposed by the Constitution and laws of the State. Subject to these excep- tions and limitations, the Supreme Court of the State has all the powers and authority of each of those courts, and exercises the same in like manner. The jurisdiction conferred by the Constitution can be limited neither by the Legislature nor by any power conferred by it upon the court itself. People v. Nichols, 79 N. Y. 582. The jurisdiction of the court is left very general. It embraces all the jurisdiction possessed by the Supreme Court of the Colony, and by the Court of Chancery in England July 4, 1776. There is no attempt to define these powers. The Supreme Court therefore may be assumed to have all judicial power unless by statute it is vested elsewhere. The court has both original and appellate jurisdiction. It may in certain instances review decisions of other courts. Then § 69.] WHEN STATE COURTS ARE WITHOUT JURISDICTION. 6 1 it acts in its appellate capacity. This appellate power is exer- cised only at General Term. The court also has an appel- late jurisdiction to review judgments and orders made at other branches of the court. The court at General Term may exercise all the powers which can be exercised at Special Term, and the court at Special Term may exercise all the powers of the court at Gen- eral Term except appellate powers. People v. Nichols, 79 N. Y. 582; Matter of Canal St., 12 N. Y. 406. § 69. When State courts are without jurisdiction. — It is necessary to observe that, while the courts of the State are generally clothed with power to redress any wrong suffered by any citizen, and to enforce every right belonging to him, either under the common law, or by statute {Cook v. Whipple, 55 N. Y. 150), yet there are certain persons and subjects as to which the courts of the State have no jurisdiction. Thus they have no jurisdiction of an action against the State [The People v. Dennison, 84 N. Y. 272), unless by special statute, nor have they jurisdic- tion of a foreign government or foreign State {Manning v. The State of Nicaragua, 14 How. Pr. 517; Delafield v. The State of Illinois, 2 Hill 159), nor of an ambassador or consul of a foreign nation {Vaalrino v. Thoinpson, 7 N. Y. 576; Alatter of Tracy, 46 Super. Court 48). By statute, an action cannot be maintained against Indians of certain tribes. Hastings v. Farmer, 4 N. Y. 293. Moreover, there are some subjects of which the State courts have no juris- diction by reason of their Federal relations, thus: They cannot inquire into the validity or existence of a patent {Continental S.S. Co. v. Clark, 100 N. Y. 365; Hat Sweat. Mfg. Co. v. Reinoehl, 102 N. Y. 167), nor have they admiralty jurisdiction to proceed against a vessel in rem. {The Josephine, 39 N. Y. 19; Poole v. Xermit, 59 N. Y. 554; Bartletiv. Spicer, 75 N. Y. 528). There are other instances in which it may be said that, as a general rule, the courts of the State are without jurisdiction. Thus as to foreign executors and administrators and receivers appointed by the courts of another State or country, and as to the internal affairs of foreign corporations generally, so also as to lands in any other State, courts of this State are held, as a rule, to be without jurisdiction. 62 THE SUPREME COURT. [CH. III. § 70. Powers of justice of Supreme Court. — By section 235 it is provided that any justice of the Supreme Court has power to sit at a General Term or to hold a Special Term of the Supreme Court or a term of the Circuit Court, or to pre- side at a Court of Oyer and Terminer for any part of the term, and to act upon any business which regularly comes before the term in which he is sitting, except when he is personally dis- qualified from sitting in a particular action or special proceed- ing. Each justice must at all reasonable times when not engaged in holding court transact such judicial business as may be done out of court. By sec. 236 it is provided that the Governor may appoint one or more judges of the Superior Court and of the Court of Common Pleas to hold Special Terms of the Supreme Court and Circuits. A Special Term of the Supreme Court may be adjourned to a future day, and to the Chambers of any justice of the court residing within the judicial district, by an entry in the minutes and then adjourned from time to time as the justice holding the same directs. An action triable before the court without a jury which was upon the calendar of the court before it was adjourned may be tried at an adjourned term held at Chambers by consent, and not otherwise (§ 239). A judge of a Superior City Court within his city, and a county judge within his county possesses, and upon a proper application must exercise, the power conferred by law in gen- eral language upon an officer authorized to perform the duties of a justice of the Supreme Court at Chambers or out of court (§240. Thus a county judge has power to grant an injunction order in an action in the Supreme Court (27 Hun 548; affi'd 90 N. Y. 402). CHAPTER IV. LIMITATION OF TIME OF ENFORCING A CIVIL REMEDY. CHAPTER IV., CODE OF CIVIL PROCEDURE. § 71. General observations. — Statutes of Limitation are said to be statutes of repose. They are intended to settle and quiet titles to property and to prevent litigation. The maxim which applies is, "interest reipublicce ut sit finis litium." The purpose of the statute is effected by barring the right to apply for judicial relief after the lapse of certain periods of time. Such statutes, therefore, affect the remedy and not the right. They deny relief to the applicant in any case however meritorious, where it is not applied for within the prescribed time. The refusal of all means of taking the possession of prop- erty from one who has it, practically vests in the holder an indefinite enjoyment of the property which is in effect an ownership. Hence, it follows that as to real estate and chattels generally, Statutes of Limitation may affect transfers of title, and time may by this means vest a right of property. Baker v. Oakwood, 123 N. Y. 16; s. c. 10 L. R. A. 887; Abrams v.Rhoner, 44 Hun 507. § 72. Statutes of acquisition and exemption. — We observe, therefore, as to the Statutes of Limitation generally, that in their effect, they are either instruments of acquisition or instru- ments of exemption, that is, they may serve to vest the title to property, real or personal, or they may serve to protect a party from a claim set up by another. In the latter event the statute operates, not because the claim is satisfied, nor because it is deemed to have been paid by lapse of time, but simply because the statute has barred the right of recovery. This distinction between the effect of the statute with regard to transfers of (63) 64 STATUTE OF LIMITATIONS. [CH. IV. property and rights of action is well illustrated by the case of Ca.7npbell v. Holt (115 U. S. 620). In that case it was held that the repeal of a statute of limitations whereby a personal debt barred by the statute was revived, did not deprive a debtor of his property in violation of the 14th Amendment of the Constitution of the United States. The opinion of the majority of the court written by Miller, J., distinguishes between statutes of limitation as applied to claims for real and personal property, and debts, holding that as to the former the title passes by operation of the statute, but as to the latter, no rights are vested by lapse of time, the statute affecting the remedy only, and not the right ; and hence that no right of property was impaired by the legislature in reviv- ing the right of action upon a debt once barred by the statute. Titles vested by the statute are frequently spoken of as titles by prescription. Prescription, however, strictly applies only to easements and incorporeal rights. A person who takes title under the statute, does not take by grant or presumption of grant, but by operation of law. The law in effect gives him a title, and protects him against the person otherwise having the title, by depriving such person of any remedy. Earl, ]., Reformed Church v. Schoolcroft, 65 N. Y. 134-147. § 73. Statutory. — At common law no limitation to the time within which actions might be commenced existed. Lord Ellenborough, Williams v. Jones, 13 East 449. The earliest general statute, frequently referred to, is 21 James I., c. 16. The language of that statute applied only to actions at lav/. Courts of equity, on the other hand, refused to entertain juris- diction where the delay on the part of the applicant was excess- ive. They declined to enforce stale claims and refused relief to those who had been guilty of laches. What delay would serve to deprive a person of recourse to equity, was a matter of discretion depending on the circumstances of each case. But while courts of equity were not within the language of the early statute of limitation they were regarded as within its spirit and meaning, and where remedies were concurrent at law and in equity the statutory limitation was applied to proceedings in equity as well as at law. Buller v. Johnson, in N. Y. 204, 214; Actg. of Neilley, 95 N. Y. 389. This general rule of law was enacted into the Revised Statutes (2 R. S. 301, §§ 49-51). § 74-] TRUSTS. 6 J Under the Code equitable actions as well as those at law are included in the statutory limitations, but it does not follow that a court of equity may not still decline to afford relief on the ground of laches although the delay has not reached the statu- tory limit. Mackall v. Casilear, 137 U, S. 556; Peters v. Dela- plaine, 49 N. Y. 362. § 74- Trusts. — It is to be remarked, moreover, that certain matters of equitable cognizance are not within the operation of the statute. Thus it is well settled that no lapse of time is a bar to the enforcement of a direct trust between trustee and cestui que trust. The leading case is Kane v. Bloodgood ,(7 John. Ch. 90, Kent, Chan.). But this rule applies only to such tech- nical and continuing trusts as were not cognizable at law, but fell within the proper peculiar and exclusive jurisdiction of chancery. Hence, implied trusts resulting from a duty imposed by law are not within the statute. Buddv. Walker, 113 N. Y. 637; Price v. Mulford, 107 N. Y. 303; Wood v. Supervisors, 50 Hun 1. The case of Hamer v. Sidway (124 N. Y. 538) seems to be a border case. There an uncle promised to give his nephew $5,000 if he would refrain until he was twenty-one years of age from certain practices, and the nephew afterward asserted that he had so refrained, whereupon the uncle wrote to him that the money was in the bank and he might consider it on interest ; the uncle dying, the action was brought against his executors to recover the money, but not until after the time had expired which would have barred an action at law. It was held that the letter constituted a declaration of trust, and that the rela- tion of the parties was that of trustee and cestui que trust, and hence that the action was not within the statute. The rule which exempts an express trust from the bar of the statute is subject to two qualifications. These are, that no cir- cumstances exist to raise a presumption from lapse of time of an extinguishment of the trust ; and second, that no open denial or repudiation of the trust is brought home to the knowledge of the cestui que trust, which requires him to act as upon an asserted adverse title. Hill v. McDonald, 58 Hun 322. Time begins to run against an express trust when there has been an open disavowal of the trust by the trustee, of which the cestui que trust has notice. U. S. v. Taylor, 104 U. S. 222 ; Speidel v. Henrici, 120 U. S. 377. S 66 STATUTE OF LIMITATIONS. [CH. IV. It is provided by statute (Laws of 1875, cn - 545) that where an estate has been conveyed to trustees for the benefit of cred- itors, and no different limitation is contained in the instrument creating the trust, such trust shall be deemed discharged at the end of twenty-five years from its creation. See Kip v. Hirsh, 103 N. Y. 565. § 75. The United States courts. — In the United States courts, the rule is that those courts sitting in equity are ordi- narily bound in cases of concurrent jurisdiction by the statutes of limitation that govern courts of law in the respective States in similar circumstances ; but this general rule is taken subject to the qualification that the equity jurisdiction of the courts of the United States cannot be impaired by the laws of the respective States in which they sit ; and where the chancery rule conflicts with the statute, the United States court will follow its own rule. Kirby v. Lake Shore R.R. Co., 120 U. S. 138 ; Tice v. School District No. 18, 17 Fed. Rep. 283. § 76. Limitations by contract — Presumption of payment. — Limitations by statute are to be distinguished (1) from limi- tations by contract, or under statutes giving rights of action, and (2) from presumptions of payment as rules of evidence. (1). Where the contract between the parties contains provi- sion for special limitation of the right of action under the contract, the limitation is one affecting the right, and not the remedy. It is a part of the contract and enforceable as such wherever the contract rights are brought in controversy. Hud- son v. Bishop, 35 Fed. Rep. 820. And when a right of action is given by statute, provided it be exercised within a time limited, so that there is no right of action independent of the limitation, and time is made the essence of the right, the right is lost if the time is disregarded. The limitation in that event is not upon the remedy, but is a part of the right sought to be enforced. The Uarrisburg, 119 U. S. 199. (2). The doctrine of presumption of payment is one which existed at common law, independent of any statute. It is a rule of evidence that after the lapse of twenty years, in the absence of circumstances conflicting, there arises an absolute presumption of payment of a debt. ^Macauley v. Palmer, 6 N. Y. Sup. 402. This presumption may be rebutted by evidence §§ 77-79-J RECOVERY OF REAL PROPERTY. 67 tending to show that the debt remains unpaid. The statute of limitations, however, when once it applies, is conclusive. It does not create a presumption, but terminates the right to the remedy. An instructive case is Bean v. Tonnele (94 N. Y. 381), where an action was brought against the maker of a note more than twenty years after it fell due, and it was held that although the statute of limitations was not a bar, because of the non-residence of the defendant, yet the lapse of time raised a presumption of payment. § 77. Constitutionality. — Statutes of limitation are not obnoxious to the provision of the Constitution of the United States, prohibiting States from passing laws impairing the obligations of contracts, unless they unreasonably limit the time within which an action may be brought. The general principle is, that if the effect of the enactment is to prevent an action, when the right of action exists, it would not only impair, but would absolutely destroy the obligation, and would be void ; but if it left a reasonable time within which the injured party might bring his action, although that time might be short- er than before existed, the remedial right would be perfect, and the obligation would be unimpaired. Pomeroy's Con. Law, § 618 ; Terry v. Anderson, 95 U. S. 628. § 78. Construction of statute.— It should also be remarked that courts will not construe statutes of limitation so as to make them retrospective in their effect. The application of the sec- tions of the Code is regulated by section 414, and the general statement is all that is necessary here. ACTIONS FOR RECOVERY OF REAL PROPERTY. (Co. Civ. P. §§ 362-375-) § 79. Actions by the State or its grantee. (Co. Civ. P. §§ 362-364). — The people of the State will not sue for or in re- spect to real property, or the issues or profits thereof, by reason of the right or title of the people, unless (1) the cause of action accrued within forty years, x»r (2) the people have received some part of the rents or profits within that time (§ 362). The same 68 STATUTE OF LIMITATIONS. [CH. IV. rule applies to a person claiming land by virtue of letters patent, or a grant from the people, and where such letters patent are declared void by judicial determination on an allegation of fraud or forfeiture, or mistake, or ignorance of a material fact, or wrongful detaining, or defective title, an action of ejectment may be commenced either by the people, or by a subsequent patentee or grantee, his heirs or assigns, within twenty years after the determination is made, but not after that period (§ 364). These sections were rendered necessary by the rule of com- mon law that no limitation ran against the sovereign, the maxim being, "nullum tempus occurit regi." The reason and history of the statute are stated by Bronson, Ch. J., in People v. Arnold (4 N. Y. 512). As time did not run against the king, he might assert his right by escheat or forfeiture, at any period however long after the title accrued, although the lands had in the meantime passed through the hands of many innocent pur- chasers. This was remedied by 21 James I. c. 2, and more effectually by the so-called English nullum tempus Act (9 George III. c. 16), providing in substance that the king should not sue when his title had not accrued within sixty years, unless he had received rents under claim of title. The substance of this act was embodied in our statute of 1801 (1 R. L. 184, § 1), limiting the time, however, to forty years. The statute was incorpo- rated into the Revised Statutes, but the time there limited was twenty years, and the same statute in substance was continued in the Code of Procedure, the time, however, being extended to forty years, but the Code of Civil Procedure changed the language of the previous statutes. The previous statutes gave the right to sue only when the title accrued to the State within the time limited. In this State, where large tracts of wild land were held by the State unoccupied, one taking possession might under the strict language of the act retain it unless the State could show that it had acquired title within forty years. In the case above cited {People v. Arnold, 4 N. Y. 512), and in Peo- ple v. Clarke (9 N. Y. 349), it was judicially determined that the State could recover such lands, although its title antedated forty years, unless the claimant had held them under an adverse possession of forty years. These decisions stretched the language of the statute. The wording of the section was thereupon changed so that the § 8o.] RECOVERY OF REAL PROPERTY. 69 limitation is now made to depend upon the accruing of the cause of action and not upon the accruing of the title. See Genesee Val. R.R. Co. v. Slaight, 49 Hun 35. In Bitrbank v. Fay (65 N. Y. 57) it was held that an ease- ment in the waters of the State canals could not be obtained by prescription. § 80. Limitations in action to recover real property by an individual. (Co. Civ. P. §§ 365-368.) — The plaintiff must show seizin or possession within twenty years before the com- mencement of the action (§ 365). If he establishes a legal title to the premises he will be presumed to have been pos- sessed thereof within the required time (§ 368), and the occupa- tion of the premises by another person is deemed to have been in subordination to the legal title unless the premises have been held adversely for twenty years (§ 368). If the plaintiff does not create the presumption of possession by establishing legal title, then he must show actual possession within the twenty years, and if he depends upon an entry upon the land as evidence of a claim of title and possession, the action must be commenced within one year after he makes the entry and within twenty years after the time when the right to make it descended or accrued (§ 367). Possession of land is primd facie evidence of title, and is suffi- cient evidence of title against all persons but one who can show either a prior possession or a better title. As against a subsequent intruder without right, such prior possession is sufficient evidence of title. Mayor v. Carleton, 113 N. Y. 284. It has been held that this section requiring proof by the plaintiff of seizin or possession within twenty years, applied only to actions at law. Thus an action by mortgagor against a mortgagee in possession for an accounting, and for a recovery of the possession of the mortgaged premises, was held not to be within this section. Hubbell v. Sibley, 50 N. Y. 469; Miner v. Beekman, 50 N. Y. 337; Shriver v. Shriver, 86 N. Y. 575. The particular case of a mortgagee in possession is now pro- vided for by section 379. But other equitable actions, such as to remove a cloud on title, are apparently not within this sec- tion, but are within section 388 of the Code. As against the remainderman, the statute begins to run from the determination of the precedent estate. Clute v. N. Y. Cen- JO STATUTE OF LIMITATIONS. [CH. IV. tral 6° H. R. R.R. Co., 120 N. Y. 267; Fleming v. Burnham, 100 N. Y. 8; Jackson v. Johnson, 5 Cow. 74. § 81. Adverse possession. (Co. Civ. P. §§369-372.)— The sections — 370, 371, and 372 — distinguish between an adverse possession under a claim of title founded upon a written instru- ment, and such adverse possession not founded upon a written instrument. In the former case, adverse possession runs as to the land possessed and occupied, — first, where it has been ' usually cultivated or improved; second, where it has been pro- tected by a substantial enclosure; and third, where although not enclosed it has been used for the supply of fuel, or of fenc- ing timber, either for the purposes of husbandry or for the ordinary uses of the occupant. In such a case the actual occu- pancy of a portion of the premises, on a claim of right to the whole, may be sufficient in the instances mentioned in § 370. But in the case of claim of title not founded upon a written instrument, the adverse possession applies only to the premises occupied in the first two cases named, to wit, where it has been protected by a substantial enclosure, or where it has been usu- ally cultivated or improved. In the latter case, the adverse possession is said to be acquired inch by inch.,. possessio pedis, to just so much land as is actually occupied. To constitute a possession such as will bar the title of the legal owner, five elements must co-exist : (1). It must be hos- tile or adverse; (2). Actual; (3). Visible, notorious, and exclu- sive ; (4). Continuous ; (5). Under claim or color of title. It will be observed that each of these elements enters into the description of adverse possession in the Code, whether the claim of title is founded upon a written instrument or other- wise. Thus, in sections 369 and 371 the entry must be: (1) under claim of title; (2) exclusive of any other right ; (3) con- tinuous; (4) if founded upon a written instrument, then of the land included in the instrument, provided there be occupancy as required by § 370; and (5) if not founded upon a written instrument, then only of the land actually occupied. The subject of title by adverse possession belongs to the domain of real estate law. A few illustrations of the meaning of the various constituents of adverse possession mentioned above may be given. § 8 1. J ADVERSE POSSESSION. 7 1 (1). Adverse. — Possession to be adverse must be inconsistent with the title of the true owner, who is out of possession, and such as to operate as notice to him that the possession is held under a claim of right sufficient to establish an ouster. The claim which is adversely set up must be made to appear. Cul- ver v. Rhodes, 87 N. Y. 348 ; Abrams v. Rhoner, 44 Hun 507; McCabe v. Kenny, 52 Hun 514. It follows that where possession is under a claim of title it must be made under some distinct claim of title and not by a mere general assertion of ownership without reference to any source from which such ownership can arise. In other words, a mere squatter can never obtain title by adverse possession. Matter of the Mayor, 44 State R. 189. (2). Actual. — The nature of the possession, whether under a written instrument, or not, has been referred to above. If the possession is such that the land has been usually cultivated or improved, or has been protected by substantial enclosure, it will be an actual possession within the statute in the event of a claim founded either upon a written instrument, or not upon a written instrument. But if the claim is founded upon a writ- ten instrument, there may be a constructive possession of a portion of the premises included in the instrument. In the instances mentioned, where a known farm or single lot has been partly improved, the portion of the farm or lot that has been left not cleared, or not enclosed, according to the usual course and custom of the adjoining country, will be deemed to have been occupied for the same length of time as the part improved or cultivated. To constitute usual cultivation or improvement, something more than an occasional resort to the land to use it for tem- porary purposes, as to pile wood (33 Barb. 386), or to cut tim- ber from time to time (79 N. Y. 93), or to cut grass (no N. Y. 380; Pope v. Hanmer, 74 N. Y. 240), is necessary. So the claim of a very large tract of land under a written instrument where a comparatively small portion of it has been actually occupied will not be sufficient. As, for instance, an actual occupancy of 400 acres in a tract of 25,000 acres {Thompson v. Burhans, 61 N. Y. 52), or two acres in a tract of 783 {Jackson v. Woodruff, 1 Cow. 276). But, in Munro v. Merchant (28 N. Y. 9), where the grantee of a large tract of uncultivated land entered upon it under his deed, and made extensive, valuable, and permanent 72 STATUTE OF LIMITATIONS. [CH. IV. improvements, and erected buildings, and paid taxes, and the cleared portion was continuously occupied by him under claim of title to the whole tract, and the uncleared portion was exten- sively used for cutting timber for the market, or for fences and firewood; it was held that that was a sufficient constructive possession to bring the case within § 370. (3). Visible, notorious, and exclusive. — One claiming an adverse possession must keep his flag flying at all times. A secret possession, or one which can be construed as being in subor- dination to the right of the true owner, will not base a claim of title or of right. Bedell v. Shaw, 59 N. Y. 46. As between tenants in common, the possession of one tenant being consistent with the right of his co-tenant does not amount to a disseisin of the co-tenant, and an ouster, or some act which the law deems equivalent to an ouster, is necessary to constitute a disseisin of the co-tenant. The acts needful to create an ouster must amount to an actual and exclusive possession of the whole premises, claiming the whole. Culver v. Rhodes, 87 N. Y. 348; Florence v. Hopkins, 46 N. Y. 182. So, the right of a purchaser before performance of the contract will be subor- dinated to the claim of the owner, but after performance it will be adverse (5 Cow. 74; 14 Wend. 227). (4). Continuous. — If the adverse possession is once abandoned or interrupted, the time will have to begin to run afresh. Bliss v. Johnson, 94 N. Y. 235; Thompson v. Burhans, 79 N. Y. 99. In case of successive holders of land after a disseisin committed by one of them the seizin thereby acquired by him will not inure to the benefit of the others who come into possession after him, unless there is a privity of estate between him and them by purchase or descent. But if there is privity of estate between them, then their continued possession can be tacked together to make a continuity of disseisin (Am. Ency. of Law, tit. Ad. Pos.). (5). Claim or color of title.- — Color of title is that which is in appearance title, but which in reality is not a perfect title. It is apparent, but not real title. The claim of title may or may not be made under a written instrument, but in either event, in order that possession may be adverse, the occupation must be under a claim of right. Eldridge v. Kenning, 35 St. Rep. 190; Crary v. Goodman, 22 N. Y. 170-175; Bridges v. Wyckoff, 67 N. Y. 130. §§ 82-84.] ^DESCENT CAST^' 73 § 82. Relation of landlord and tenant as affecting ad- verse possession. (Co. Civ. P. §373.) — The possession of the tenant is deemed the possession of the landlord until the expiration of twenty years after the termination of the tenancy, or where there has been no written lease, until the expiration of twenty years after the last payment of rent. The possession of the tenant in subordination to the title of the landlord continues not only during the running of the term, but is presumed to remain unchanged until twenty years after the end of the term, notwithstanding any claim of the tenant or his successors of a hostile title. This presump- tion may be rebutted, but to do so effectively, and initiate an adverse holding, the tenant must surrender possession to the landlord, or do something equivalent to that, and bring home to him knowledge of the adverse claim. Whiting v. Edmunds, 94 N. Y. 309-314; Bedlow v. N. Y. Floating Dry Dock Co., 112 N. Y. 263; Church v. Schooni7iaker, 115 N. Y. 570. § 83. Descent cast. (Co. Civ. P. § 374.)— This section abolishes the rule of the common law with regard to descent cast. At common law where a person who had acquired land by disseisin died seized of the land the descent of it to his heirs took away the real owner's right of entry, so that he could recover only by a writ of right, but could not maintain ejectment, and this condition of affairs was termed a descent cast. § 84. Disabilities. (Co. Civ. P. § 375.) — Disabilities men- tioned are: infancy, insanity, and imprisonment on a criminal charge for a term less than life. The statute does not run during the continuance of these disabilities, except that the time limited cannot be extended more than ten years after the disability ceases, or after the death of the person so disabled. The provision that the time cannot be extended more than ten years after the disability ceases, does not operate in any event so as to limit the right of action to less than twenty years. Thus, if an infant was eight years of age when the right of action accrued, he would have ten years after arriving at 21 within which to bring the action, making in all a period of 23 years. If the infant was 18 when the cause of action accrued, he would have 20 years after he arrived at 21, 74 STATUTE OF LIMITATIONS. [CH. IV. and not merely ten years after he arrived at 21, because that would be to limit the right of action to 13 years after the right of action commenced. The extreme time which an infant could obtain under this exception would be 31 years. Howell v. Leavitt, 95 N. Y. 617. ACTIONS OTHER THAN FOR RECOVERY OF REAL PROPERTY. § 85. Presumption of payment of judgments. (Co. Civ. P- §§ 376-378.) — Section 376 differs in phraseology from the other sections of this title. It does not in terms limit the time within which an action may be brought, but lays down a rule with regard to presumption of payment. There is, as we have noticed before, a distinction between a limitation of a right to sue and a presumption of payment, and it has been claimed that this section did not limit the right to sue upon a judg- ment, which right was therefore unlimited, except under the general limitation of ten years (§ 410). This contention, how- ever, was not sustained. On the contrary, it was held that the statute was in effect a limitation upon the right to sue. Gray v. Seeber, 53 Hun 611. The statute makes the presumption of the payment of the judgment conclusive except as specified (§ 377)- It is to be observed that the section applies only to a final judgment or decree for a sum of money, or directing the pay- ment of a sum of money. Decrees of courts of equity other than for the payment of money are not within this statute. They do not expire by reason of the passage of any number of years, and the question whether they will be enforced after a long time has elapsed, is one for the court to decide upon a consideration of all the facts. Wing v. Rionda, 125 N. Y. 678. What decrees in equity are embraced within these words has not been definitely settled. In Barnard v. Onderdonk (98 N. Y. 15S) it was held that a decree of foreclosure and sale where no judgment for a deficiency had been docketed, was not within this section, and in Van Rensselaer v. Wright (121 N. Y. 626) the Court of Appeals were of the opinion that a judgment for the recovery of the possession of real property for non-payment §§ 86, 87.] ACTION FOR REDEMPTION FROM A MORTGAGE. 75 of rent which had remained unenforced for more than twenty years, the tenant remaining in possession, was not a final decree directing the payment of a sum of money, and was not within the operation of this section. Again, it has been held that the presumption of payment under this section applies only in an action to enforce the judg- ment. It seems that the judgment may still be efficacious for other purposes, as for instance, that an execution may be issued upon it. Kincaid v. Richardson, 25 Hun 237 ; see Johnson v. Albany &■ Sus. R.R., 54 N. Y. 416. But proceedings supple- mental to execution can be instituted only within ten years after the return of the execution unsatisfied (§ 2435). The period of twenty years is not extended by the death of a person as in the case of personal actions (§ 403). Matter of Kendrick, 107 N. Y. 104. §86. Action for redemption from a mortgage. (Co. Civ. P. § 379 ) — Pledged property. — 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 an adverse possession of the mortgaged premises for twenty years after the breach of a condition of the mortgage or the non-fulfillment of a covenant therein contained (§379). This section changes the rule established by Miner v. Beekman (50 N. Y. 337) and Hubbell v. Sibley (50 N. Y. 468), referred to under § 365, Co. Civ. P. With regard to pledged property generally, it is to be ob- served that the lien on the property, personal or real, given as security for a debt, is not impaired by the fact that the remedy at law for the recovery of the debt is barred by the statute. A forcible illustration is found in the case of Hulbert v. Clark (128 N. Y. 295), where a mortgage had been given to secure the pay- ment of certain promissory notes. The statute of limitation had run so as to bar an action upon the notes, but it was held that the mortgage was still a valid security for the debt and might be foreclosed. The cases are reviewed in the opinion of Earl, J. §87. Action upon a sealed instrument— Twenty years. (Co. Civ. P. §381.) — There are some rights of action growing out of relations created by a sealed instrument, in which it is difficult 76 STATUTE OF LIMITATIONS. [CH. IV. to determine whether the right of action so created is one upon the sealed instrument, or upon rights existing independent of the instrument, as, for instance, the specific performance of a con- tract under seal to convey land. Such an equitable action rest- ing in the discretion of the court may not necessarily be brought at any time before the lapse of twenty years. The court may refuse a decree on the ground of laches in the ex- ercise of its reasonable discretion, and that limitation may be much less than twenty years. See Peters v. Delaplaine, 49 N. Y. 362. In Dwindle v. Edey (102 N. Y. 423), an action for accounting between partners based on covenants in articles of copartner- ship under seal, it was held that though a right to an account- ing existed independent of the articles, yet, since the articles recognized such right, the action would be referred to the written articles, and hence the twenty years' limitation ap- plied. An action for an accounting of royalties under an agree- ment under seal to manufacture patented articles, was held to be an action upon a sealed instrument. Bommer v. The Am. Spiral Spring Co., 81 N. Y. 468. § 88. Actions which must be brought within six years. (Co. Civ. P. § 382.) — First. An action on contract, express or implied. This embraces all actions at law to enforce a liability on con- tract or for damages for the breach of a contract other than an action on a judgment or sealed instrument. It extends even further and includes suits which are equita- ble in their character growing out of contract obligations, ex- press or implied. Thus, in cases of implied obligation arising out of quasi trust relations, although an accounting may be necessary, and the action may be equitable, yet it is within this section. An illustration is found in Roberts v. Ely (113 N. Y. 128), where plaintiff purchased from the defendant's testator certain teas in the possession of a third party. The teas having been burned, the insurance money was paid to the defendant, who converted it to his own use. In an action to compel the de- fendant to account for and pay over the money so received, it was held that the action was barred in six years. Even if the action were equitable in its frame, it was held that it would § 88.] ACTIONS WITHIN SIX YEARS. 77 still be within that limit. So, in Mills v. Mills (115 N. Y. 80), where defendant had title to certain lands as security, which he sold and realized more than enough to pay his claim, an action for an accounting, and to recover the excess, was held barred by a limitation of six years. When money is received by one to and for the use of another, under such circumstances that it is his duty at once to pay it over, then an action for money had or received may be brought to recover, without any demand, and in such a case the statute begins to run from the day of the receipt of the money. Even if an accounting is nec- essary, the limitation is still the same. Middleton v. Twombly, 125 N. Y. 520. Second. An action to recover upon a liability created by statute, except a penalty or forfeiture. An instance under this subdivision, is the liability of a stockholder for a debt of a corporation when the capital stock has not been fully paid. Knox v. Baldwin, 80 N. Y. 610. Third. An action to recover damages for an injury to prop- erty, or a personal injury, except where a different period is prescribed. This is the general limitation in cases of tort. In an action for conversion the statute begins to run at the time of the con- version (37 Hun 277 ; 3 Johns. 523) ; in an action of deceit it begins to run at the time of the deceit, and the statute operates from that time, although the plaintiff did not discover the fraud until within six years prior to the commencement of the suit (20 Johns. 45). Observe that, by subd. 5 of section 383, an action to recover damages for a personal injury resulting from negligence must be brought within three years. The authorities establish a distinction between an action for a wrong and an action for negligence. Dickinson v. Mayor, 92 N. Y. 584-588. As, for instance, an action for maintaining a nuisance, such as a hole in the sidewalk {Clifford v. Dam, 81 N. Y. 56), and the neglect of the city to cause the removal of snow and ice from the sidewalk by reason of which an injury is sustained (Dickinson v. Mayor, supra), the former case being within this section (382), and the latter within section 383. Fourth. An action to recover a chattel. Fifth. An action to procure a judgment other than a sum of money on the ground of fraud which was formerly cognizable 78 STATUTE OF LIMITATIONS. [CH. IV. by a court of chancery. The cause of action in such a case is not deemed to have accrued until the discovery by the plain- tiff or the person under whom he claims of the facts constitut- ing the fraud. This subdivision covers all cases formerly cognizable by a court of chancery, whether its jurisdiction was exclusive or concurrent, in which any remedy or relief is sought for, aside from, or in addition to, a mere money judgment, or which a court of law could not give, although as part of the relief sought a money judgment is also demanded. Thus, where the plaintiff was fraudulently induced to subscribe for stock, and brought an action for a rescission of the contract and an ac- counting, it was held that the right of action was not barred until six years after the discovery of the fraud. Bosley v. Na- tional Machine Co., 123 N. Y. 550. But an action for damages for false and fraudulent representations, inducing a purchase of a mortgage, was held not to be within this subdivision. Miller v. Wood, 116 N. Y. 351. Sixth. An action to establish a will. Seventh. An action upon a judgment, or a decree rendered in a court not of record. As in the case respecting judgments of courts of record, so in reference to judgments of courts not of record, the statute is confined to actions on such judgments. The lien of such judg- ments, if it continues for more than six years, is unaffected, and so likewise is the right to enforce the judgment by execu- tion. Watermirev. Westover, 14 N. Y. 16 ■ Townsendv. Tolhurst, 57 Hun 40 ; s. c. 32 St. Rep. 21. §89. Within three years. (Co. Civ. P. §383.)— (1). An action against a sheriff, etc., for non-payment of money col- lected on an execution. This limitation applies not only to the plaintiff in the execu- tion, but to all persons having a right of action against the sheriff or coroner arising out of the collection of the moneys on execution. Frankel v. Elias, 60 How. Pr. 74. So, a pur- chaser at sheriff's sale, which is set aside as irregular, must bring his action to recover back the money paid on the pur- chase within three years. Bowne v. O'Brien, 5 Daly 474. (2). An action against a constable except an escape. (3). An action upon a statute for a penalty, where the action § 89.] WITHIN THREE YEARS. 79 is given to the person aggrieved, or to that person and the State. Trustees of a business corporation are required to make and file an annual report. Their failure to do so renders them liable for the debts of the company then existing, and those created while the default continues. This is a liability for a penalty within this section, where the action is given to the party aggrieved, and it must be brought within three years after the default. Losee v. Bullard, 79 N. Y. 404 ; Merchants' Bank v. Bliss, 35 N. Y. 412. By § 394 an action against the director or stockholder of a money corporation or banking association to recover a penalty or forfeiture imposed, or to enforce a liability created by law, must be brought within three years. It will be observed that there are four different provisions respecting limitations in actions for penalty : First, those speci- fied above under § 383 and §394, where the limit is three years. Second, where the action is given to the people of the State alone, where the limit is two years (§384). Third, where the action is for a penalty given wholly or partly to any person who will prosecute for the same. The action must be brought within one year by such person, or if not so brought, by the people within two years (§ 387). (4). Actions to recover a chattel, or for damages for taking, detaining, or injuring personal property brought against an administrator, receiver, or trustee, are by this section limited to three years. (5). An action to recover damages for a personal injury resulting from negligence. This embraces all claims for damages resulting from negli- gence. It includes an action by a husband to recover damages for the loss of his wife's services occasioned by the negligence of the defendant {Maxson v. D. L. 6° W. R.R. Co., 112 N. Y. 559), and against a physician for malpractice (Burrellv. Preston, 54 Hun 70). It must be remembered, however, that by special statute (Laws of 1886, ch. 572) an action against cities of more than 50,000 inhabitants for personal injury must be brought within one year, and notice must be given within six months after the cause of action accrues. Similar actions against villages must be brought within two years, and notice must be given within one year (Laws of 1889, ch. 440). 80 STATUTE OF LIMITATIONS. [CH. IV. § 90. Within two years. (Co. Civ. P. §384.)— (1). An ac- tion to recover damages for libel, slander, assault, battery, or false imprisonment. (2). An action upon a statute for a forfeiture or penalty to the people of the State. An action under § 1902 for caus- ing the death of another must be brought within two years from the death (Bonnell v. Jewett, 24 Hun 524); and an action to annul a marriage must be brought within two years after the marriage. § 91. Within one year. (Co. Civ. P. § 385.)— An action against the sheriff, or coroner, upon a liability by doing an act in his official capacity, or by the omission of an official duty, except for the non-payment of money collected on execution. This refers to a liability incurred by an official malfeasance or misfeasance, as, for a failure to return an execution. Peck v. Hurlburt, 46 Barb. 559. Or, for a wrongful levy under attach- ment. Cumming v. Brown, 43 N. Y. 514. But it does not apply to a case where the sheriff has employed another to assist him and is sued for such service. Rice v. Penfield, 49 Hun 368. § 92. Short statute of limitations against adminis- trators and executors. — In this connection attention should be called to the limitation in the case of claim against the estates of deceased persons. By § 1822, when an executor has advertised for claims against the estate of the decedent, and he rejects a claim pre- sented to the estate, an action must be brought by the claim- ant within six months after the rejection or after the debt becomes due, or he will be peremptorily barred. This provi- sion goes under the general name of the short statute of limita- tions. §93. Actions on accounts. (Co. Civ. P. §386.) — 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. A brief reference to the history of the law is necessary to an intelligent understanding of this section. By the statute 21 §93-J ACTIONS ON ACCOUNTS. 8l , James I., c. 16, there was excepted from the operation of the statute "such accounts as concerned the trade of merchandise between merchant and merchant, their factor or servants." The accounts meant were such as concerned persons having mutual dealings together. Hence, it came to include mutual accounts, although not between merchants. The items of such current account included only dealings between the parties having something to do with the reciprocal demands. The theory which lay at the bottom of it was that each party was supposed to carry in his mind the state of the account, and to proceed with his dealings with the other, relying upon the general balance of the account. The balance, therefore, was always the starting-point of a new transaction. The account, therefore, would have nothing to do with transactions which were wholly independent of it, but as to such matters as were included in it the statute would run from the last item upon either side. A discussion of the history and meaning of the statute will be found in Green v. Disbrow (79 N. Y. 1), and in Green v. Ames (14 N. Y. 225). The account referred to in the statute must be an account upon mutual dealings, not an account of items only upon one side, or an account upon one side upon which there had been merely payments on the other. An ordinary account current, such as dealings at a shop where one receives supplies, although there have been pay- ments from time to time, would not be such an account as is referred to in this section. The practical distinction between the mutual account referred to in this section, and an ordinary open account, as far as they are affected by the statute of limi- tations, should be understood. Upon either account, a pay- ment made generally that is to apply upon the balance would take the whole account out of the statute. But in the case of an ordinary open account, where there has been no balance struck or account stated, the effect of a general payment on account will be left to the operation of the rules respecting application of payment, under which the debtor has a right to direct that the payment shall be applied to such items as he specifies ; if he makes no direction, the creditor may make such application as he chooses, and if neither debtor nor creditor make any specific application, the law, with certain exceptions, intended to protect third parties, will apply the payment to 6 82 STATUTE OF LIMITATIONS. [CH. IV. items in the order of time at which they become due. Nostrand v. Ditmis, 127 N. Y. 355 ; Thompson v. St. Nicholas Nat. Bank, 113 N -Y. 325,333. In the case of continuous services rendered without any ex- press agreement as to time of payment, the statute is a bar to a claim for more than six years of service in such employment, unless payments have been made to apply thereon within six years, in which case a recovery is proper for a period beginning six ) T ears prior to the first of such payments {Matter of Gard- ner, 103 N. Y. 533), and the same rule has been held to apply to a claim for board rendered for a series of years pursuant to agreement {Gilbert v. Comstock, 93 N. Y. 484). We must draw a distinction between a series of services ren- dered at different times, but under one employment {Smith v. Velie, 60 N. Y. 106), and a current account of items of purchase at different dates, or of separate and several dealings of any kind, though entered in one account. § 04. Actions not otherwise provided for. (Co. Civ. P. §388.)— An action, the limitation of which is not specially pre- scribed in this or the last title, must be commenced within ten years after the cause of action accrues (§ 388). All actions in equity except those which are within subdivi- sion 5 of section 382, are within this section. Salisbury v. Morss, 7 Lans. 359, affi'd 55 N. Y. 675. Thus, an action in equity for an accounting between partners {Gray v. Green, 125 N. Y. 203); an action against trustees of a corporation to hold them accountable for misconduct {Brinckerhoff v. Bostwick, 99 N. Y. 185); an action for a specific performance of a contract {Peters v. Delaplaine, 49 N. Y. 362); or, to reform a contract for mis- take or inadvertence {Hoytv. Putnam, 39 Hun 402); an action to establish a trust {Higgins v. Higgins, 14 Abb. N. C. 13), are within this section, and are barred in ten years. Also, pro- ceedings, although not equitable, for which no other limitation is provided, as a proceeding to vacate an assessment. Matter of the Manhattan Savings Bank, 82 N. Y. 142. So in an action in equity to restrain a continuing trespass, the fact that the trespass was begun more than ten years be- fore the suit was brought is no bar to the action. Gahvay v. The Mel. El. Ry., 128 N. Y. 132. There is no limit to an action for a continuing trespass, whether such actions be legal or equi- §§ 95-97-] ACTIONS AGAINST A NON-RESIDENT. 83 table, short of the twenty years from which a grant is presumed. Knox v. Met. El. Ry., 58 Hun 517, affi'd 128 N. Y. 625. § 95. Personal actions by the State. (Co. Civ. P. § 389.) — This section subjects the State to the limitations contained in the statute. The Constitution of the State, Article 7, Sec- tion 14, provides that neither the Legislature, nor any person or persons acting in behalf of the State, shall audit or pay any claim which should be barred by the Statute of Limitations as between individuals. Section 1973 of the Code provides a limitation of ten years for an action by the State founded upon the misappropriation of public property. § 96. Actions against a non-resident. (Co. Civ. P. § 390.) — The object of this section is to prevent the residents of other States and countries from maintaining actions in this State against non-residents, when the cause of action has been barred by the law of their own domicil. Before this section of the Code took effect, the statute of limitations of a foreign State constituted no defence to an action brought in this State, so that, if a resident of New Jersey had a claim against a resident of that State which was barred by the statute there, and if he could find the debtor in New York, he might sue him here notwithstanding that the action was barred in New Jersey. This was the logical application of the doctrine that the statute of limitation applies only to the remedy, and remedies are governed solely by the place of judicial investiga- tion, or in the language of the law, of the forum. Most of the States have remedied the hardship arising from the common- law rule, by provisions similar to this section. The doctrine before the Code is stated in Miller v. JBrenham (68 N. Y. 83), and in Clark v. Lake Shore R.R. (94 N. Y. 217). § 97. Death without the State— Rights of action arising between death and the granting of letters. (Co. Civ. P. §§ 39 J > 39 2 -) — The first of these sections (391) provides for a case where a person liable to be sued dies without the State. In such a case the time which elapses between the death and eighteen months after letters testamentary or of administration upon the estate of the deceased have been issued, is not a part of 84 STATUTE OF LIMITATIONS. [CH. IV. the time limited for commencing an action against the executor or administrator. The next section (392) provides a limitation in the case of loss or injury to the personal estate of a deceased person occurring after death. In such a case the former deci- sions were to the effect that the statute did not begin to run until there was a person capable of suing ; hence, if no executor or administrator was appointed, the right of action remained open. Bucklin v. Ford, 5 Barb. 393. The statute now provides that letters are deemed to have been issued within six years after the death of the testator or intestate, but beneficiaries of the decedent who at the time of his decease were under disabilities may maintain the action within five years after the cessation of the disability. The section applies only to tangible personal property, and does not apply to an action by the representa- tives of deceased for an accounting by his surviving partners. Cohen v. Hymes, 45 State R. 821. There is no limitation upon bank bills and other obligations passing as money (§ 393). § 98. What takes a case out of the operation of the Statute. (Co. Civ. P. § 395.) — An acknowledgment or prom- ise contained in a 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 th'e operation of this title ; but this section does not alter the effect of a payment of principal or interest. The language of this section is important. Its words should be studied and retained in the memory. There are three things referred to as taking a case out of the statute : 1st. Acknowl- edgment. 2d. Promise. 3d. Payment. The doctrine of the section rests upon the principle that the statute of limitations does not affect the merits, but only the remedy. Hence, the debt is not extinguished, and the debtor may, if he wishes, make a new promise to pay, which will con- tinue the obligation of the original debt. The new promise is not a new debt, however, but a continuance of the old debt. Hence, the action is brought, not upon the new promise, but upon the old debt. The subject of this section will be found discussed in the notes to Whitcomb v. IVhiting (Douglass, 652); s. c. 1st Smith's Leading Cases, 8th ed. 642. We observe first, that as to the acknowledgment, or new § 9 8 -J CASE 0UT OF OPERATION OF STATUTE. 85 promise, it must be in writing, signed by the party to be charged, but as to the payment of principal or interest, there is no requirement. Secondly, the statute does not make payment of principal or interest operative. Upon that subject it is simply negative. The provision is, that the section does not alter the effect of a payment of principal or interest. That subject remains, therefore, as it did at common law. Turning now to acknowledgment and new promise : mani- festly, a promise to pay involves an acknowledgment of the debt. The distinction is not as between a promise to pay and an acknowledgment as though the latter were not a promise to pay, but rather as if it were a different method of expressing the same legal intent. The acknowledgment, in other words, must be such as to create an inference of an intention to pay from which the law will infer a promise. An acknowledgment, therefore, must be such as to recognize an existing debt, and it must contain nothing inconsistent with an intention to pay it. Manchester v. Braedner, 107 N. Y. 346. A promise to pay may then be inferred, but if there is any- thing in the accompanying circumstances which repels the pre- sumption of a promise or intention to pay, the case is not taken out of the statute. Bloodgoodv. Bruen, 8 N. Y. 362. Thus, in the leading case of A' Court v. Cross (3 Bing. 329), where the defendant said, "I know that I owe the money, but the bill I gave is on a three-penny receipt stamp, and I will never pay it," the acknowledgment was held wholly insuf- ficient, and Best, C. J., said: "There are many cases from which it may be collected that if there be anything said at the time of the acknowledgment to repel the inference of a promise, the acknowledgment will not take a case out of the statute of limitations." For this reason, a mere acknowledgment of the debt in legal proceedings, under circumstances not indicative of a purpose to pay, does not revive the debt. Bloodgoodv. Bruen, supra, p. 368. As if one should answer admitting the debt, but pleading the statute of limitations, the acknowledgment would not remove the bar of the statute. Commercial Insurance Com- pany v. Brett, 44 Barb. 489. Where the acknowledgment or promise to pay is conditional, the condition must be shown to have been performed. In Tebo v. Robinson (100 N. Y. 27) the defendant was sued upon an 86 STATUTE OF LIMITATIONS. [CH. IV. agreement by which he had undertaken to pay the plaintiff's debt as soon as he was able. The defence was that more than six years had elapsed since he became able to pay, and upon this ground the plain t iff was nonsuited. The Court of Appeals reversed the j udgment for defendant, holding that it was a q ues- tion of fact when he became able to pay, and that if the jury could find that he had not been able to pay for more than six years, a verdict could be sustained against him. An acknowledgment made to a stranger not intended by the debtor to be communicated to the creditor, or to influence his conduct, will not take the debt out of the statute. Matter of Kendrick, 107 N. Y. 104; Smith v. Camp, 58 Hun 434. But where that intention is shown, such an acknowledgment is as effectual as if made to the creditor or his authorized agent. De Freest v. Warner, 98 N. Y. 217. There can be no revival of the debt barred by the statute by an acknowledgment by an executor or administrator. McLaren v. McMartin, 36 N. Y. 88. He is bound to set up the bar of the statute, and he will not be allowed on his accounting any sum paid upon a debt which at the time of its payment by him was barred by the statute. Butler v. Johnson, 111 N. Y. 204-212; Bloodgood v. Bruen, 8 N. Y. 362- Part Payment. — Payment may be shown, as we have stated, by parol. Mills v. Davis, 113 N. Y. 243. It must be made voluntarily, and by the debtor. Harper v. Fairley, 53 N. Y. 442. The effect of a part payment in taking a case out of the operation of the statute is, as we have observed, not derived from the statutory provisions, but results from the decisions of the courts, and depends wholly upon the reason of the decisions. The reason is, that a part payment made on account of a claim is an acknowledgment by the debtor of his liability for the whole demand, and from this acknowledgment a new promise on his part to pay the residue is implied. See opinion of Bronson, J., in Van Keuren v. Par melee, 2 N. Y. 523. It is obvious that to bring a case within the reason of the rule, the part payment must have been made by the party to be charged with the effect of it, or by an agent authorized thus to charge him. Harper v. Fairley, supra. It makes no differ- ence whether payment is made before or after the demand has been barred by the statute. It sets the statute running afresh. Shoe?nakerv. Benedict, n N. Y. 176. A part payment by a surety § 99-] DISABILITIES. 87 will not revive the debt against the principal unless made at the express request of the principal. Winchell v. Hicks, 18 N. Y. 558. Nor does a part payment by an assignee for creditors revive the debt against the debtor. A payment by the delivery of a note of a third person is equivalent to a payment in cash. Smith v. Ryan, 66 N. Y. 352. So also the payment may be by services rendered. Lawrence v. Harrington, 122 N. Y. 408. Of course, when the debtor gives his own note, he makes a writ- ten acknowledgment or promise which will take the case out of the statute. Kincaidv. Archibald, 73 N. Y. 189. Giving an order on a third party would take the case out of the statute. Manchester v. Braedner, 107 N. Y. 346. Payment of interest will take the entire debt out of the statute. Matter of Consalus, 95 N. Y. 340. It was held by Lord Mansfield, in the leading case of Whit- comb v. Whiting (supra), that the payment by one joint debtor was payment by all, to take the debt out of the statute. This doctrine was repudiated in this State in Van Keuren v. Parmelee (2 N. Y. 523) and Shoemaker v. Benedict (n N. Y. 176). The rule here is, that it_must be sh own th at the person making the payment was authorized to do so by the person sought to be charged by reason of the payment. Littlefield x. Littlefield, 91 N. Y. 203. Payrnent^by one partner before disso- lution will bind all the partners, but after dissolution the rule as" to joint debtors applies (National Bk. v. Norton, 1 Hill 572; Mitchell v. Ostrom, 2 Hill 520), except as to those who have previously dealt with the firm and have no notice of dissolu- tion. Forbes v. Garfield, 32 Hun 389. Partial payment by an executor or administrator on a demand barred at the death of the testator or intestate will not revive the demand against the estate. AfcLaren v. McMar- tin, 36 N. Y. 88; Matter of Kendrick, 107 N. Y. 104. This section has no application to torts. The principle upon which the continuance of the obligation by new promise or payment rests finds no analogy in the case of torts. The acknowledgment of a debt is a new promise to pay it, but the acknowledgment of trespass is not a new trespass. Oothout v. Thompson, 20 Johns. 277. § 99. Disabilities. (Co. Civ. P. § 396.) — The disabilities are the same as in actions to recover real property, to wit, infancy, 88 STATUTE OF LIMITATIONS. [CH. IV. insanity, and imprisonment on a criminal charge for a time less than life. There are certain causes of action excepted from the oper- ation of this section. They are, actions for a penalty, forfeit- ure, and against a sheriff or other officer for an escape. The statute cannot be extended by either of the disabilities, except infancy, for more than five years. A person cannot avail himself of a disability unless it existed when the right of action accrued (§ 408). In any case, the action must be brought within one year after the disability ceases. GENERAL PROVISIONS. § 100. When action deemed commenced. (Co. Civ. P. §§ 398-403-) — The action is commenced as to each defendant when the summons is served on him personally. None of the other defendants are affected by such service except in the case of a co-defendant, who is also a joint contractor, or otherwise interested with the defendant served. In that event, service on one is sufficient to take the case out of the statute as to the other joint contractors, but the running of the statute as to one joint debtor is not stopped by the commencement of an action, unless he is made a party, and his being made a party after the statute has run will not affect his rights. Alerritl v. Scott, 3 Hun 657. No lapse of time after the commencement of an action will bar the right to recover (72 N. Y. 486). If the plaintiff neglects to prosecute the action, the defendant may, as we shall subsequently learn, move to dismiss the complaint, and if the complaint is dismissed, and the statute has then run, it would be a defence to a new action brought on the same claim. § 101. Attempt to commence an action. (Co. Civ. P. § 399-) — If personal service is not made, the bar of the statute may still be avoided by an attempt to commence an action as provided in this section, by delivering the summons to the sheriff for service before the time expires ; but in that event, within sixty days after the limitation expires, the defendant must be personally served, or the summons must be published pursuant to an order for service by publication (§ 438, subd. 6). Substituted service is equivalent to personal service, or service by publication under this section. Clare v. Lockard, 21 Abb. N. C. 173- § I02.J WHEN THE DEFENDANT IS WITHOUT THE STATE. 89 Where one of several joint debtors has been served before the limitation expires, service may be made upon those not served after it has run. White's Bank v. Ward, 35 Barb. 637. But this is the case only when those not served are parties to the action as brought before the statute had run. Persons who are not originally named as defendants if brought in after the statute has run, may still plead the statute. Shaw v. Cock, 78 N. Y. 194. The foregoing provisions are applicable to courts not of record, except that no publication is required, and that actual service must be made with due diligence (§ 400). § 102. When the defendant is without the State. (Co. Civ. P. § 401.) — This section provides for two cases : first, when the defendant is out of the State when the cause of action accrues ; and second, when he departs from and resides with- out the State, and remains continuously absent therefrom for the space of one year or more. If the defendant is out of the State when the action accrues, it may be commenced within the time limited after his return into the State. The allegation that a contract was made out of the State will put the defendant to the proof that he was within the State during the running of the statute. The presumption is, that he continued to remain out of the State. Mayer v. Friedman, 7 Hun 218, affi'd 69 N. Y. 608. The provision in reference to absence for a year requires that the debtor should have become a non-resident, and also that he should have remained absent for the entire year. First National Bank v. Bissell, 24 State R. 909. The section was put into its present form in 1888, and the former cases do not now apply. The fact that a debtor, resi- dent in New Jersey, has a place of business in this city where he regularly attends during business hours, does not affect the fact that he is a non-resident of the State within this statute, nor does the statute run during his temporary stays in the city. Bennett v. Cook, 43 N. Y. 537. A foreign corporation sued in this State cannot avail itself of the~*statute of" limitations. It is not a resident of the State. Olcott v. Tioga R.R., 20 N. Y. 210. And this rule prevails although it has, before the commencement of the action, for the time specified, continuously operated and carried on a rail- 90 STATUTE OF LIMITATIONS. [CH. IV. road in this State, and has property and offices here. Rathbun v. The N. C. R.R., 50 N. Y. 656 ; Boardman v. Lake Shore e^ M. S. Ry. Co., 84 N. Y. 157-185. §103. Death of claimant or defendant. (Co. Civ. P. §§ 402, 403.) — Sections 402 and 403 apply, the one to the case of a per- son who might be plaintiff, and the other to the case of a per- son who might be defendant. If a person who might be plain- tiff dies during the last year of the running of the statute, the time is extended for one year. Tompkins v. Austin, 10 St. Rep. 339- If a person who might be sued dies within the State, the time to sue his executors or administrators is extended eighteen months, and if no executor or administrator is appointed, until within six months of the expiration of this extension of the limitation, an additional year is added. Church v. Olendorf, 49 Hun 439. But it seems that if letters are not issued until after the expiration of the six years and eighteen months, the bar of the statute is complete. Chapman v. Fonda, 24 Hun 130. The case of a person dying without the State is provided for by § 391. It has already been stated that this section does not apply to the statutory presumption as to payment or satisfac- tion of judgment. Matter of Kendrick, 107 N. Y. 104. § 104. Disabilities by reason of war. (Co. Civ. P. § 404.) — This section enacts a rule which has been regarded as a gen- eral rule of modern jurisprudence apart from the statute, that the operation of the statute of limitations is suspended during a state of war as to matters in controversy between citizens of the opposing belligerents. Clarke v. Morey, 10 Johns. 70. So the time during which the courts were closed in the Confederate States during the war of the rebellion is to be excluded from the computation of the time fixed by statutes of limitation within which suits may be brought, even though the statute contains no such provision as that in our law. Hanger v. Abbott, 6 Wal. 532. During time of war a person present and adhering to the enemy may not prosecute an action in the courts of this State. Sanderson v. Morgan, 39 N. Y. 231. § 105. Limitation where Judgment is reversed. (Co. Civ. P. §405.) — Where a judgment is reversed without order- §§ I06-I08.] ACTIONS BY PRINCIPAL AGAINST AGENT. 91 ing a new trial, or where an action is permitted in any other than one of the three methods specified in this section, to wit: — (1). Voluntary discontinuance; (2) Dismissal for want of prosecution; (3). Final judgment on the merits; — a new action may be commenced within one year, though the limitation has expired. Dismissal for want of prosecution refers to the authority which the court has to make an order dismissing an action for want of due prosecution (§ 822). Marx v. Manhattan Ry Co., 24 Abb. N. C. 62. § 106. Stay by injunction. (Co. Civ. P. §406.)— When the commencement of an action is stayed by injunction or by other order of the 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. An illustration of a statutory prohibition is found in the case of claims against the city, where the claimant cannot bring his action until thirty days after demand and notice. This enforced delay extends the limitation for the same period. Brehm v. The Mayor, 104 N. Y. 186. § 107. Actions by principal against agent for mis- conduct. (Co. Civ. P. §407.) — Where an injury results from the act of an agent, the cause of action in favor of the princi- pal against the agent begins to run from the time when a judg- ment against the principal is first recovered by the aggrieved party. An illustration of what is meant by this section is found in the case of Bank of Utica v. Chilis (6 Cow. 238). The plain- tiff received an endorsed note for collection and employed defendant, a notary, to protest it against the endorsers. He neglected to do so, and the bank was compelled to pay the amount of the note to the owners, and then more than six years after the maturity of the note (but not six years after the payment to the owner) brought their action against the notary. The suit was held barred by the statute. But under this section, as it now reads, the time to sue would begin to run from the date of the judgment against the bank. § 108. Disabilities must exist when right accrues. (Co. Civ. P. § 408.) — A person cannot avail himself of a disabil- 92 STATUTE OF LIMITATIONS.* [CH. IV. ity unless it existed when his right of action or entry accrued. This section prevents the evils which might result from suc- cessive disabilities or from what was called in common law the tolling of disabilities. If successive disabilities might be tacked to each other, the right might, in the language of Lord Eldon, " travel through minorities for two centuries." Kent, Chan., Demarest v. Wynkoop, 3 Johns. Ch. 139. § 109. When two or more disabilities co-exist. (Co. Civ. P § 409.) — Where two or more disabilities co-exist, when the right of action or entry accrues, the limitation does attach until all are removed. At common law the rule was that a party could avail himself only of one disability, though sev- eral co-existed. § 1 10. The necessity for a demand as bearing upon the statute of limitations. (Co. Civ. P. § 410.) — The rule is, that where a demand is necessary the statute begins to run when the right to make the demand is complete. For instance, a prom- issory note, payable on demand, is barred by the statute at the expiration of six years from its date. De Lavallette v. Wendt, 75 N. Y. 579. And this is so whether the note bears interest or not. McMullen v. Rafferty, 89 N. Y. 456. The statute, however, does not run against an endorser on such a note until actual demand and notice of protest. Parker v. Stroud, 98 N. Y. 379 ; Shutts v. Fmgar, 100 N. Y. 539. Hence if the holder permit the statute to run in favor of the maker before presentment to the endorser, the endorser loses his right of recourse against the maker, and is therefore discharged. Shutts v. Fingar, supra. When a demand is by statute made a prerequisite to the mainte- nance of an action, the claimant cannot, as a rule, extend the statute of limitations by delaying to make the demand. It seems that if the right of action exists apart from the statute, and the demand is only a matter of convenience or benefit to the person against whom the right exists, the statute runs from the time the right to make the demand -is complete [Dickinson v. Mayor, 92 N. Y. 584), but where the demand is a part of the cause of action and the right of action depends upon the stat- ute so that no cause of action exists until the demand is made, the statute of limitations will not begin to run until the demand. Fisher v. Mayor, 67 N. Y. 76. § IIO.J IN CASE OF ARBITRATION. 93 To the general rule above stated the statute makes two exceptions. The first exception applies to claims against a person acting in a fiduciary capacity. As to them the statute does not begin to run until the person having the right to make the demand has actual knowledge of the facts upon which that right depends. This exception was made to cover cases like Stafford v. Richardson (15 Wendell 302), where it was held that an action against an attorney was barred after six years from the time of his collection of money for his client, although the client was ignorant of the collection. Another application of this exception is Xing v. Mackellar (109 N. Y. 215), where the plaintiff deposited money with defendant, to be invested in good bond and mortgage, and the investment was not so made, but a pretended investment was in bad faith set up, it was held that the right of action to recover back the money did not accrue until a discovery of the fact. In Drake v. Wilkie (30 Hun 5.37) it was held that an action against the executor for a legacy was within this exception. The second exception applies to a deposit of money to be paid on a special demand, or a delivery of personal property not to be returned specifically or in kind at a fixed time or upon a fixed contingency, in which case the time runs only from actual demand. This exception applies to moneys depos- ited in a bank of deposit to be drawn against by check {B'k of British JV. A. v. Merch. Nat. Bk., 91 N. Y. 108), also to certificates of deposit {Howell v. Adams, 68 N. Y. 314). It applies also to property delivered and held under a conditional sale {Fry v. Clow, 50 Hun 574), and to property deposited for safe keeping {Ganley v. Troy City Bank, 98 N. Y. 487). In the cases mentioned, within this exception, the statute runs only from the demand. § in. In case of arbitration. (Co. Civ. P. § 411.)— The purpose of this section is to except from the time limited the period during which parties are actually in good faith engaged in the arbitration of a claim or in an attempted arbitration where the arbitration is void. Hence it is provided that the time which elapses between the entering into the written sub- mission of arbitration or agreement and the litigation or expi- ration of a stay on the arbitration proceedings is not a part of the time limited for the commencement of the action. 94 STATUTE OF LIMITATIONS. [CH. IV. § 112. When action is discontinued after counterclaim. (Co. Civ. P. § 412.) — The purpose of this section is to prevent the injustice which would follow where a person sets upan affirm- ative claim by way of defence or counterclaim, and time has so far elapsed that, upon the discontinuance of the action in which such defence or counterclaim had been set up, the claim would be barred by the statute. This section provides that the period of the commencement and termination of the action in which such defence or counterclaim is set up is not a part of the time limited for the commencement of the action thereon. Before this section it was held that a plaintiff could not dis- continue, as a matter of course, where a counterclaim had been pleaded because of the injury which might result to the defendant by reason of the running of the statute of limita- tions, but since the adoption of this section the rule is other- wise. Cohn v. Anathan, 24 State R. 295 ; Matter of Butler, 101 N. Y. 307. § 113. How statute pleaded. (Co. Civ. P. § 413.)— The statute can be pleaded only by answer or, as against.a defence or counterclaim, by reply. There must be an averment in appro- priate language that the statutory time has elapsed after the cause of action accrued before the commencement of the action. Eno v. Diefendorf, 102 N. Y. 720; Bell v. Yates, 33 Barb. 627. For an instance of an attempt to plead the statute, which was held faulty, see Buddv. Walker (29 Hun 344). It may be doubted whether in an action of ejectment the defence may not show adverse possession as a defence under a general denial, although not pleaded for the reason that the plaintiff must recover, if at all, upon his own title. See Hansee v. Mead, 27 Hun 162. § 114. Application of the statute. (Co. Civ. P. § 414.) — This section makes the provisions of this chapter the only rules of limitation, except in the four cases specified, to wit : (1). The case where a definite limitation is especially pre- scribed, as in Hill v. Supervisors (119 N. Y. 344), where a right of action for damages by reason of riot had been given, provided suit was brought within three months after the injury. (2). Causes of action which accrued before July 1, 1888. (3). Actions brought within two years after the Code of § 1 1 4-] APPLT CATION OF THE STATUTE. 9$ Civil Procedure took effect, are to be governed by the law applicable to such cases when the Code took effect. Viets v. Union Nat. B'k of Troy, 101 N. Y. 563; Clark v. Lake Shore R.R., 95 N. Y. 217. (4). A case where the time to bring an action has expired. In other words, that a cause of action already barred was not ■ revived by any change in the law. Periods of limitation are to be computed from the time of the accruing of action to the time when the claim to relief is actually set up (§ 415). CHAPTER V. COMMENCEMENT OF AN ACTION. CHAPTER V., TITLE I., CODE OF CIVIL PROCEDURE. § 115. Actions and special proceedings denned. — A civil action is commenced by the service of a summons (Co. Civ. P. § 416). The word "action," when applied to judicial proceedings, signifies an ordinary prosecution in a court of justice by a party against another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punish- ment of a public offence (§ 3333). Every other prosecution by a party for either of the purposes above specified, is a special proceeding (§ 3334)- Actions are of two kinds : (1) civil and (2) criminal (§ 3335). A criminal action is prosecuted by the people of the State as a party against a party charged with a criminal offence for the punishment thereof (§ 3336). Every other action is a civil action (§ 3337). The party prosecuting a civil action is styled the plaintiff ; the adverse party is styled the defendant (§ 3338). A civil action begins with the service of a summons and ends in a judgment ; a special proceeding begins with a notice and ends in an order. § 116. Jurisdiction of the person. — The proper institution of an action so that the court may acquire jurisdiction to ren- der a judgment which shall be conclusive upon the parties, is a matter of the first and most essential importance. Jurisdiction ' is defined as the right to adjudicate concerning the subject- matter in a given case. To constitute this there are Tel. Co., 18 Civ. Pro. 363. Service on a cashier, director, or managing agent of a for- eign corporation will only be sufficient when the corporation has not made a designation of a person to be served as pro- § I2g.J SERVICE OF OTHER PROCESS. 107 vided, and when the officers named in the first paragraph can- not with due diligence be found, and the cause of action arose, or the corporation has property in this State. Service on the president of a foreign corporation which had no place of business, and transacted no business, and had no property within this State, and who was here only for purposes of his own, on his way to a seaside resort, was held sufficient service. Pope v. Terre Haute Car Mfg. Co., 87 N. Y. 137. In Carnaghan v. Exporters' cV Producers' Oil Co. (32 State R. 1117) the summons was served upon one who had been a director and officer of a domestic corporation which had ceased to do business; there had been no formal resignation of the director; it was held that the service was good. In Sturges v. The Crescent Jute Mfg. Co. (32 State R. 848) it appeared that service was made on February 10th on one who had been president and director of a foreign corporation, but who pro- duced proof that he had resigned in the previous January. It was held that even if his resignation was made to evade ser- vice, yet since it was accepted and he was no longer an officer of the company, the service was not good. See Beardsley v. Johnson, 121 N. Y. 224. It is well also to note that no foreign fire, marine, life, or casualty company can issue policies in this State until they have appointed the insurance superintendent their attorney, upon whom service of process may be made. Laws of 1884, c. 346, sec. 1. And when a foreign insurance company applied for leave to do business in this State, and filed its appointment with the insurance superintendent as its attorney to receive process, but the superintendent refused to permit the company to do business in the State, subsequent service of the summons on the superintendent as against the company was set aside. Richardson v. Western Home Ins. Co., 29 State R. 820. § 129. Service of other process— Proof of service. (Co. Civ. P §§433,434-) — The provisions with regard to service of summons apply to service of any process, whereby a special proceeding is commenced, except contempt, and except when special provision is therein made (§ 433). Proof of service of the summons must be made by affidavit, except that where service is made by the sheriff, when it may be proved by his certificate, and when the defendant is an adult 108 COMMENCEMENT OF AN ACTION. [CH. V. and not an incompetent person, the service on him may be shown by his admission, acknowledged and certified in like manner as a deed to be recorded or accompanied with the affi- davit of a person other than the plaintiff, showing that the sig- nature is genuine. The time and place of the service must be shown. The special requirements, when the service is made by a person other than the sheriff, are set out in Rule 18, which is cited above (see ante, § 123). § 130. Substituted service and service by publication. (Co. Civ. P. §§435-445.) — The statute provides two modes of service other than personal service. These are known as, (1)- substituted service and (2) service by publication, although the" phrase "substituted service " is sometimes used generally as' including both modes of service. Substituted service can be made only upon a resident of the State, and in two cases : (1) when after diligent efforts the^ defendant's place of sojourn cannot be found, and (2) when he is within the State, and avoids service, so that personal service cannot be made (§ 435). This provision is not intended as a means to reach debtors temporarily absent on business at a known place, but as a means of reaching runaway debtors whose place of sojourn cannot be located, and those who remain at home, but avoid service of process. Ottman v. Daly, 17 Civ. Pro. 62. The proof must be such as to satisfy the judge that a state of facts exists which entitles him to make the order. McCarthy v. McCarthy, 55 How. Pr. 418. Particular instances are not important. The order must direct that service of the summons be made by leaving a copy thereof, and of the order, at the residence of the defendant, with a person of proper age, if upon reasonable application admittance can be obtained, and such a person found who will receive it, or if admittance cannot be so obtained, nor such a person found, by affixing the same to the outer or other door of the defendant's residence, and by deposit- ing another copy thereof, properly inclosed in a post-paid wrap- per addressed to him at his place of residence, in the post-office at the place where he resides (§436). The order and the papers upon which it is granted must be filed, and the service must be made within ten days after the order is granted, otherwise the order becomes inoperative. On § 1 3 1-J SERVICE BY PUBLICATION. IO9 filing an affidavit showing service according to the order, the summons is deemed to be served, and the same proceedings may be taken thereupon as if it had been served by publica- tion pursuant to an order made as prescribed in the next sec- tion (§437)- Such service is equivalent, so far as the right to enter judg- ment is concerned, to personal service. Orrv.McEwen, 16 Hun 625. SERVICE BY PUBLICATION. V~ § 131. Jurisdiction acquired by service other than per- sonal. — -With regard to the jurisdiction acquired by service other than personal, a distinction exists between residents of the State and non-residents. As to non-residents not person- ally served with process within the State, the court acquires no jurisdiction to render a judgment, imposing a personal liabil- ity, while it may render a judgment determining the rights of such defendant to property in this State which is the subject of the action, or which is held by attachment to await the result of the action. Burton v. Burton, 45 Hun 68; s. c. 9 State R. 405 ; Huntley v. Baker, 33 Hun 578 ; 108 N. Y. 415 ; O'Dea v. O'Dea, 101 N. Y. 23. The processes of courts run only within the jurisdiction which issues them. They cannot be served without the jurisdiction, and courts of one' State cannot acquire jurisdiction over the citi- zens of another State, under statutes which authorize a substi- tuted service or which provide for actual service of notice without the jurisdiction, so as to authorize a judgment in per- sonam against the party proceeded against. Andrews, J., Jones v. Jones, 108 N. Y. 415, 424. But as to a party whose domicil is in the State, jurisdiction of his person as well as of the subject-matter may be acquired by the court by means of substituted service, or service by publication, although the party sought to be charged is then absent from the State and cannot be personally served with process within it. De Meli v. De Melt, 120 N. Y. 485, 495 ; Huntley v. Baker, 33 Hun 578. As to residents, the rule seems to be that jurisdiction of the person authorizing a personal judgment may be acquired by any species of service which the laws of the State pre- scribe. IIO COMMENCEMENT OF AN ACTION. [CH. V. § 132. Cases in which service by publication may be ordered. (Co. Civ. P. §438.) — There are seven instances enu- merated in which the defendant may be served by publication. The first three depend upon the residence or conduct of the defendant; the fourth, fifth, and seventh upon the character of the action; and the sixth applies only to a resident of the State or a domestic corporation, where service is directed to be made in this mode to avoid the operation of the statute of limitations. Under the first three subdivisions, if the defendant is a foreign corporation or a non-resident, or his residence is unknown, or the plaintiff is unable to ascertain whether he is or is not a resident of the State, or where, being a resident, he has departed from the State with the intent to defraud his credit- ors or to avoid the service of the summons, or keeps himself concealed therein with like intent, or if being an adult resi- dent, he has been continuously without the United States for six months and has made no designation of a person upon whom service can be made for him, or service cannot be made upon the person so designated, in either of these cases the plaintiff may apply for an order of publication. It will be observed that there is no requirement in any of the first three subdivisions that the defendant should have property in this State or that the action should in any wise affect prop- erty in this State, but it is provided by § 1217 that a judgment shall not be rendered for a sum of money only where the sum- mons was served by publication, except in an action in which an attachment may issue and where the defendant is a non-resi- dent or foreign corporation, unless a warrant of attachment has been granted in the action and has been levied upon the property of the defendant. Hence a money judgment against a non-resident or foreign corporation cannot be obtained upon service by publication except in a case where a warrant of attachment has been levied upon the defendant's property, and in that event the judgment entered is operative only as to the property so taken under attachment. McKinney v. Collins, 88. N. Y. 216. It is further to be observed that the decisions have put a lim- itation upon the service by publication which is not found in the express words of the statute, but exists in the nature of the rem- edy. The Code requires that the order of publication must be founded upon a verified complaint "showing a sufficient cause § I33-J UPON WHAT PAPERS THE ORDER IS GRANTED. Ill of action against the defendant to be served " (Co. Civ. P. §439). The Court of Appeals has held that a sufficient cause of action means not only a statement of a cause of action against the defendant, but also of a cause of action of which the courts of this State can take cognizance and upon which they can grant some relief [Bryan v. University Pub. Co., 112 N. V. 382), and therefore that a cause of action against a non-resi- dent not arising in this State and not affecting property in this State, is not the statement of a sufficient cause of action to jus- tify the granting of an order of publication, since no practical effect could be given to a judgment in such an action, there being no way in which it could be enforced. Von Hesse v. Mack- aye, 55 Hun 365; s. c. 29 St. Rep. 228. It follows that where the cause of action is one to recover a sum of money in which an attachment may issue under §635, an order for the publication of the summons may be made, but no judgment can be entered against a non-resident or foreign corporation unless the attachment has actually been levied. In all other cases against a non-resident or foreign corporation the complaint must state a cause of action arising in this State or affecting real or personal property situated in this State, except in an action for divorce or in a case of publication of the summons to avoid the operation of the statute of limita- tions, which stand by themselves. With regard to cases for divorce, it is to be observed that while we deny the validity of judgments of divorce entered in the courts of other States as against residents of this State served by publication {People v. Baker, 76 N. Y. 78; O'JDea v. O'Dea, 101 N. Y. 23; see 127 N. Y. 408; 60 Hun 189), we insist upon the validity of judgments of our courts obtained in favor of our citizens against non-residents served by publication (§ 1756; O'Dea v. O'Dea, 101 N. Y. 23, 35). A defendant as to whom an order of service by publication has been made, may move to vacate the order upon the ground that it has been improperly made, rather than submit to the hardship of coming into this State to defend the action. Bryan v. University Pub. Co., 112 N. Y. 383; Von Hesse v. Mackaye, 55 Hun 373; s. c. 29 State R. 234). §133. Upon what papers the order is granted. (Co. Civ. P. §439.) — The order's must be founded upon a verified com- plaint showing a sufficient cause of action against the defend- I 12 COMMENCEMENT OF AN ACTION. [CH. V. ant to be served. The complaint must be verified, that is, ver- ified in due form as required by the subsequent sections, and the proof of the verification must be such as the law requires. Williamson v. Williamson, 3 Civ. Pro. 69 ; Phelps v. Phelps, 6 Civ. Pro. 117. The complaint must state "a sufficient cause of action." This does not mean a cause of action not demurrable merely, but it means also, as we have already observed, a cause of action of which the courts of this State can take cognizance, and as to which they can administer some relief (112 N. Y. 382). In addition to such a complaint so verified, there must be proof by affidavit of the additional facts required by the last section, and also when the application is made upon the ground that the defendant is a foreign corporation, or non-resident, or in the case of a matrimonial action, or one in rem or quasi in rem or against a stockholder, that the plaintiff has been or will be un- able with due diligence to make personal service of the summons. The proof must be made by affidavit (53 Barb. 517 ; 64 Barb. 421), but the affidavit may be made by plaintiff. All the requi- site facts must be shown from actual knowledge, or if they are sworn to on information and belief, the sources of the informa- tion, and what it is, must be stated so that the court can say whether it tends to prove the facts stated. 12 Hun 657 ; 74 N. Y. 68 ; 64 Barb. 421. The facts which show that the plaintiff has been or will be unable with due diligence to make personal service must be stated. It is not enough to use the words of the statute. Carleton v. Carleton, 85 N. Y. 315; 82 N. Y. 256. When it appears that the defendants are non-residents, and are actually out of the State, that is sufficient proof that the plain- tiff will not be able to make actual service upon them (101 N. Y. 487), but mere proof of non-residence is not enough. Fetes v. Volmer, 28 State R. 317. The simple averment in the affi- davit that the defendant is a non-resident and cannot be found within the State is not sufficient. The affidavit should state facts showing that due diligence to find and serve the defendant within the State has been exercised. McCrackoi v. Flanagan, 127 N. Y. 493. The proof that the defendant is a non-resident may be upon information and belief. Seller v. Wilson, 43 Hun 629. § 134. The order of publication. — The order may be made by a judge of the court, or by a county judge of the county in which the action is triable (§ 440). The order must § 135-3 THE ORDER OF PUBLICATION. 1 1 3 be a judge's order. It should not be entitled as being made at a Special Term, or at any term (F/unney v. Broschell, 80 N. Y. 544), but if the order is signed by the judge the fact that it contains a caption as at Special Term may be disregarded (16 Daly 152; s. c. 30 State R. 851). The order provided by this section must direct that the sum- mons be served by publication in two newspapers not less than once a week for six successive weeks, or at the option of the plaintiff by personal service of the summons, complaint, and order without the State, and if defendant is an infant, also upon the person with whom he is sojourning ; and if a corporation, then upon one of the officers upon whom service may be made : as heretofore stated. The order must also contain a direction for the mailing of the papers. The order must contain the essential matters enumerated in this section, or it will be void, and the court will acquire no jurisdiction of the defendant sought to be served. 14 Hun 73 ; 19 Abb. N. C. 406 ; 16 Hun 454 ; 28 State R. 317. The order need not contain a direction as to personal service without the State, if that method of service is not resorted to (30 Hun 204), and it seems that the direction as to mailing need not be inserted if the service is made without the State, pursuant to an order to that purport. Kennedy v. Arthur, 18 Civ. Pro. 390. § 135. Steps to be taken after order. — The order having been made, the summons, complaint and order, and the papers upon which it was made must be filed with the clerk on or before the day of the first publication (§ 442). Compliance is jurisdictional (14 How. Pr. 380), and the first publication must be made within three months after the order is granted (§ 441. See § 638). Annexed to the summons must be attached a notice as prescribed in § 442, addressed to the particular defendant sought to be served by publication (see §§ 1541, 1774, as to the contents of the' notice in particular cases). The proceedings must be strictly complied with. Where the affidavit stated that defendant resided at Marion, Washington Co., Iowa, and the order directed that the papers be mailed to Washington, Iowa, it was held that the plaintiff could not make a valid service by publication under this order, and that per- sonal service made without the State was therefore nugatory. Fetes v. Volmer, 28 State R. 317. 1 14 COMMENCEMENT OF AN ACTION. [CH. V. Service by publication is completed upon the day of the last publication, or if served personally, upon the expiration of a time equal to that prescribed for publication (§ 441). The defendant has twenty days after the service is completed within which to appear and answer. § 136. Service when complete — Proof of service. — When personal service is made without the State, the notice served must be varied so as to express that purpose as prescribed by this section (§ 443). The law requires a full six weeks' publication, and not merely six publications in six different weeks {Market Bk. v. Pacific Bk., 11 Abb. N. C. 104), and if personal service is made it is not com- plete for the purpose of limiting the defendant's time to answer until the expiration of six weeks from the time of such service (Ibid.). If the defendant appears while the publication is run- ning and waives further publication and consents to the entry of judgment, it is not necessary that the publication should be continued to support an attachment. Tuller v. Beck, 108 N. Y. 355. When the plaintiff dies during the publication, and the publication is continued, and the action is revived by the plaintiff's executors, and judgment entered, it was held that the court did not acquire jurisdiction to enter a judgment of foreclosure and sale. Reilly v. Hart, 130 N. Y. 625; s. c. 42 State R- 655. Proof of publication must be made by affidavit of printer or publisher, or his foreman or principal clerk ; proof of mailing is made by the person who deposits the papers in the post- office (§ 444). § 137. When defendant served by publication may defend. — The defendant served may come in and defend at any time before judgment, and except in an action for divorce, and when the contrary is expressly declared by law, he may, upon good cause shown, be allowed to come in and defend at any time within a year after personal service of a notice of final judgment, or if such notice is not given, at any time within seven years after the judgment. If the defence is suc- cessful, restitution may be ordered (§ 445). It is not necessary for the party thus applying to come in and defend to show any irregularity or any defect in the pro- § x 37-] WHEN DEFENDANT MAY DEFEND. IIS ceedings. He must, however, show sufficient cause for grant- ing the application. If it should appear that the applicant had been by his own acts or deeds estopped to make the application, or had knowingly enjoyed some of the fruits of the judgment, or that the proposed answer was frivolous, or other like reason, that would be ground for denying the application {Ibid.). In the case cited, the defendant was permitted to come in and defend six years and six months after the judgment. Marvin ~v. Brandy, 56 Hun 244. CHAPTER VI. PARTIES TO AN ACTION. CHAPTER V., TITLE II., CODE OF CIVIL PROCEDURE. § 138. Division of the subject. — It will be convenient to discuss this subject under general heads. We shall treat first of parties plaintiff and then of parties defendant. As to parties plaintiff there are— First. Certain classes of persons as to whom special provision is made. These are : (a) infants, (6) incom- petent persons, and (c) married women. Second. A party suing may bring the action either (a) in his own right or (6) as assignee of the right of another, or (c) in a representative capac- ity. Of the latter there are three classes : (1st), executors and administrators ; (2d), trustees of an express trust ; and (3d), persons expressly authorized by statute to sue. Third. We may also consider as to the parties plaintiff whether the right of action is in one person or in more than one. If it is in more than one, then it may be necessary to determine, 1st, where all must join ; 2d, what may be done when some refuse to join ; 3d, when one can sue for the common benefit of many ; and 4th, actions by unincorporated associations. Parties defendant may be considered under the following heads : 1. The distinction between necessary and proper parties ; 2. As to whether defendants are (1) jointly liable, or (2) sever- ally liable ; 3. As to infant defendants and incompetent persons ; 4. Defendants whose names are unknown ; 5. Bringing in par- ties defendant. PARTIES PLAINTIFF. § 139. Persons whose right of action is specially provided for— Infants. — The Code provides that when an infant has a right of action, he is entitled to maintain an action thereon, (116). § 1 39- J RIGHT OF ACTION SPECIALLY PROVIDED FOR. I17 and the same shall not be deferred or delayed on account of his infancy (§ 468). At common law an infant had no legal capac- ity to bring an action. Before the summons is issued in the name of an infant plaintiff, a competent and responsible person must be appointed to appear as his guardian, for the purpose of the action, who shall be responsible for the costs thereof (§ 469). Such a guardian is known as a guardian ad litem. A guardian ad litem must, as a general rule,, be appointed for an infant plaintiff in each action brought by hrm. It is not enough that he has a general guardian or testamentary guardian. There must be a special guardian ad litem also appointed, although the general guardian may be appointed such guardian ad litem. There are certain actions which it has been held may be brought by the general guardian in his own name. Thus, an action to recover a legacy bequeathed to the ward, has been so maintained under § 1819 {Wall v. Bulger, 46 Hun 346), and actions to recover debts due, and personal property belonging to the infant brought by the general guardian, have also been sustained in the lower courts (56 Barb. 197 ; 59 How. Pr. 24; Coakley v. Jfa/iar, 36 Hun 157) ; but in Segelken v. Meyer (94 N. Y. 473), where the action was brought by a guardian ad litem to recover money due the infant, it was said that the question of -the right of the general guardian to maintain such an action had not been decided in the Court of Appeals. The right of the guardian ad litem to sue in that case was sustained, but with- out deciding that the general guardian might not have sued. In Perkins v. Stimmel (114 N. Y. 359), where the action was brought by a general guardian to recover upon a bond given by a former guardian, the judgment was reversed upon another ground, the court saying, "It is the plain theory of the Code and the practice now, that all actions brought by infants should be brought in their name by a. guardian ad litem." The practice on the appointment of a guardian ad litem differs when the infant is under or over 14 years of age. If the infant is under 14, the application for the appointment of the guardian ad litem must be made by his general or testamentary guardian, or by a relative or friend. If by a relative or friend it must be on notice to the general or testamentary guardian, or if there be none, then to the person with whom he resides (§ 470). If the infant is 14 or upwards, he may himself apply without Il8 PARTIES TO AN ACTION. [CH. VI. notice, for the appointment of a. guardian ad litem (§ 470). The rules of court provide as to who may be appointed guardian ad litem. "No person shall be appointed guardian ad litem either on the application of the infant, or otherwise, unless he be the general guardian of such infant, or is fully competent to under- stand and protect the rights of the infant, and has no interest adverse to that of the infant, and is not connected in business wifh the attorney or counsel of the adverse party. And no per- son shall be appointed such guardian who is not of sufficient ability to answer to the infant for any damage which may be sustained by his negligence or misconduct in the defence or prosecution of the suit, and such ability shall be shown by affi- davit stating facts in respect thereto. And no person shall be appointed guardian ad litem who is nominated by the adverse party" (Rule 49). By Rule 50, it is made the duty of any attorney or officer when appointed guardian to act and to examine into the cir- cumstances of the case. He is entitled to such compensation for his services as the court may deem reasonable. But no order allowing compensation shall be made, except upon an affidavit showing that the guardian has examined the case, and stating what has been done by him for the purpose of ascertaining the rights of his ward. No person other than the clerk shall be appointed a guardia?i ad litem, unless his written consent, duly acknowledged, is pro- duced to the court or judge making the appointment (Co. Civ. P- § 472)- A guardian ad litem is not permitted to receive money or prop- erty of the infant other than costs and expenses until he has given sufficient security, approved by a judge of the court, or the county judge, to account for and apply the same under the direction of the court (§ 474). The security must be a bond in a penalty of at least twice the value of the property, executed by the guardian, and by two sureties (§ 475). But these sections do not apply when the guardian ad litem is also the general guardian (§ 476). The practice on appointment of a guardian ad litem for an infant plaintiff is to prepare a petition addressed to the court setting out the infancy, the fact as to whether or no there is a general or testamentary guardian, and a statement of the cause of action which the infant has. This is signed and verified, and §§140,141-] INCOMPETENT PERSONS. 1 1 9 must be accompanied by a consent signed and acknowledged by the proposed guardian, and an affidavit as to his responsi- bility for costs. Upon this petition, if made by the general or testamentary guardian, the court will ex parte make an order appointing a guardia,7i ad litem, and if the application is not made by the general guardian, then it must be made on notice of the application. An omission to appoint a guardian ad litem for an infant plain- tiff is not a jurisdictional defect, but is a mere irregularity. Hence, if the defendant goes to trial without raising the objec- tion, it will be too late to do it on the trial, even though defend- ant had no knowledge of the fact of the infancy until it was disclosed upon the trial. Rima v. Rossie Iron Wks., 120 N. Y. 433 ; Sims v. College of Dentistry, 35 Hun 344. A guardian ad litem is a species of attorney whose duty it is to prosecute for the infant's rights, and to bring those rights directly under the notice of the court (2 Paige 304). The guardian having been appointed, the action is brought in the name of the infant by the guardian. "John Jones by George Smith, his guardian ad litem, against The Third Ave- nue R.R. Co." § 140. Incompetent persons : Lunatics, idiots, and habitual drunkards. — When a person has been declared judi- cially incompetent and a committee of his property has been appointed, such committee may maintain in his own name, add- ing his official title, any action or special proceeding which the person with respect to whom he is appointed might have main- tained, if the appointment had not been made (§ 2340 ; 2 Hun 400). But until a committee has been appointed, a lunatic has a legal standing to appear as a party (5 State R. 860). § 141. Married women. — At common law, speaking gener- ally, a married woman could neither sue nor be sued unless her husband was joined with her, but under the Code, "in an action or special proceeding, a married woman appears, prose- cutes, or defends, alone or joined with other parties as if she was single. It is not necessary or proper to join her hus- band with her, as a party in any action or special proceeding affecting her separate property. The husband is not a neces- sary or proper party to an action or special proceeding to recover 120 PARTIES TO AN ACTION. [CH. VI. damages to the person, estate, or character of his wife, and all sums that may be recovered in such actions or special proceed- ings shall be the separate property of the wife. The husband is not a necessary or proper party to an action or special pro- ceeding to recover damages to the person, estate, or character of another on account of the wrongful acts of his wife commit- ted without his instigation " (Code, § 450). This section was put into its present form in 1890, at which time all after the first two sentences was added. The right of a married woman to sue for injury to her person or property was given by the acts of i860 and 1862 (L. of i860, ch. qo; L. of 1862, ch. 172). These statutes were repealed prob- ably inadvertently by the general repealing act adopted upon the enactment of the Code (Laws of 1880, c. 245). The legisla- tion of 1890 restored the rights created under the acts of i860 and 1862. See Ball v. Burleson, 23 Abb. N. C. 334. The legislature at the same session (Laws of 1890, ch. 51) enacted that " from and after the date of the passage of this act a married woman shall have a right of action for injuries to her property, injuries to her person or character, and inju- ries arising out of the marital relation in all cases in which an unmarried woman or a husband now has a right of action by law.'' And it was also enacted that "a husband shall not be liable in damages for his wife's wrongful or tortious acts, nor for injuries to person, property, or the marital relation caused by the acts of his wife, unless the said acts were done by act- ual coercion, or instigation of the husband ; and such coercion or instigation must be proved in the same manner as any other fact is required to be proved; but in all cases embraced in this section the wife shall be personally liable for her wrongful or tortious acts." That act does not affect rights, causes of action, or defences existing at the time of its passage. In an action for injuries to the person or character of the wife, or to her marital rights, which occurred previous to March, 1890, it may still be necessary that the husband be joined with the wife, but not for such injuries occurring after that date. In Bennett v. Bennett (116 N. Y. 584), (1889), which was an action brought by a wife to recover damages for alienating the affec- tions of her husband, the court sustained her right of action notwithstanding the repeal of the acts of i860 and 1862, on the § 141. J MARRIED WOMEN. 121 ground that the wife's choses in action did not vest in the hus- band until reduced to possession, and that he was at common law joined in actions upon such claims as a matter of conven- ience or formality, while the right of action in reality belonged to the wife. The reasoning overcomes the result of the over- sight in the repeal of the acts of i860 and 1862. In Ryerson v. Ryerson (30 State R. 375), (February, 1890), it was held, that a wife could maintain an action against her hus- band for a conversion of her personal property. As to a married woman's contractual obligations, the law as it stood in this State previous to 1884 is summarized in Saratoga County Bank v. Pruyn (90 N. Y. 250), (1882), where it is laid down as the law at that time that a married woman could not bind herself by contract, unless — 1st, the obligation was created by her >n or about carrying on her trade or business ; 2d, the contract related to or was made for the benefit of her separate estate ; 3d, intention to charge the separate estate was expressed in the instrument or contract by which the liability was created ; or, 4th, the debt was created for property purchased by her. After that case, the act of 1884, ch. 381, was passed, which provides that a married woman may contract to the same extent and in the same form as if unmarried, and she and her separate estate shall be liable thereon whether such contract relates to her separate business or estate, or otherwise, and in no case shall a charge upon her separate estate be necessary, and it is added that " this act shall not affect nor apply to any contract that shall be made between husband and wife." In Bowery Bk. v. Sniffen (54 Hun 394), where the wife made her note payable to the order of the husband, for his accom- modation, and the plaintiff discounted it, it was held that she was liable although she did not specifically charge her separate estate, and that the note was not a contract with the husband within the meaning of the act of 1884. In Hendricks v. Isaacs (117 N. Y. 411) it was held that the common-law doctrine that husband and wife cannot contract with each other has not been changed by the legislation in this State respecting the rights of married women, and contracts between them are legally invalid. Courts of equity, however, will give effect to transactions or agreements between husband and wife, so far as they are just and fair and equitably ought to be enforced. 122 PARTIES TO AN ACTION. [CH. VI. In Suau v. Caffe (122 N. Y. 308), (2d Div.) a divided court held that a married woman was liable as a copartner with her hus- band for the liabilities of a business which was carried on by them jointly. In 1892, (Laws of 1892, Chap. 594,) the Act of 1884 was amended by directly authorizing contracts between husband and wife excepting those altering or dissolving the marriage relation or relieving the husband from the wife's support. From the recent statutes and decisions .we may formulate the following rules : (1). In actions for injury to her prop- erty, person, or character occurring since March, 1890, a mar- ried woman may sue without joining her husband. As to such injuries occurring before that date the rule probably is the same, though it would be wise to join the husband. (2). A mar- ried woman should be sued alone for her individual tort unless the tort was committed by the actual coercion or instigation of the husband, in which case he should be joined as defendant. (3). Upon all contracts made by or with a married woman she may sue or be sued as though unmarried. § 142. Real party in interest. (Co. Civ. P. § 449.) — We next inquire whether the action is brought by the plaintiff (1) in his own right, or (2) as assignee, or (3) in a representative capacity. By § 449 it is provided that, " Every action must be prosecuted in the name of the real party in interest, except that an execu- tor 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." The provision of this section, that every action must be prosed" cuted in the name of the real party in interest, requires that where the plaintiff has acquired the right of action by assign- ment, he must sue in his own name. The common-law rule was different. In general it required that actions should be brought in the name of the original party to the transaction. Since according to the logical reasoning of the common law, the only enforceable right which a person had in a cause of action, was the right to recover on it by suit or action at law, the most that he could transfer to another was the authority to prosecute the claim as his agent or attorney. Hence the § 1 42. J REAL PARTY IN INTEREST. 1 23 assignee of a chose in action brought suit, not in his own right, but in the right of the assignor and in his name. So that the real party in interest, the party who was really contesting, was in such a case not before the court. Courts of equity, how- ever, in many instances disregarded the strict logical line, and permitted the assignee of the cause of action to prosecute in his own name. One great object of the section of the Code cited was to enable an assignee of a chose in action to sue in his own name. The provision itself does not render any thing in action assignable. The effect is, that if the assignment is one which would have been recognized in a court of law by permitting the assignee to sue in the name of the assignor, then the assignee may sue in his own name. 3 Pomeroy's Eq. § 1274. Any claim or demand can now be transferred except (1) when it is to recover damages for a personal injury, or for a breach of promise to marry; or (2) when it is founded on s a grant which is void by the statute of the State, or upon a claim to, or interest in, real property, a grant of which by the transferrer would be void by such a statute ; (3) or where a transfer thereof is expressly forbidden by a statute of the State, or of the United States, or would contravene public policy (§ 1910). The assignee is the real party in interest whenever he holds the legal title to the demand. It is not competent for the defend- ant to show that the assignment was merely colorable, and that the assignor still retains an interest in the claim. When the legal title has been transferred, a payment or satisfaction to the legal holder of the claim will be protection to the defendant. Sheridan v. The Mayor, 68. N. Y. 30. The ownership must be such as will protect the defendant from a subsequent action by the assignor. It is competent, therefore, for the defendant to disprove the plaintiff's legal title. Thus, on the trial of an action on a promissory note made payable to the order of defendant, endorsed by him in blank, the plaintiff having pro- duced the note which was presumptive evidence of ownership, the defendant offered to show that the note was not the prop- erty of the plaintiff and was never transferred to him. This was excluded and judgment given for plaintiff. On appeal it was held that the ruling was erroneous, and that the defendant unquestionably had the right to show that the plaintiff had no legal or equitable title to the note. Hays v. Hathorn, 74 N. Y. 486. 124 PARTIES TO AN ACTION. [CH. VI. § 143. Executor and administrator. — An executor or ad- ministrator must sue in his representative capacity upon all claims and demands existing in favor of the decedent. It is expressly provided by § 1814, that an action or special proceed- ing commenced by an executor or administrator upon a cause of action belonging to him in his representative capacity must be brought by him in that capacity. But when the contract is made by the executor and not by decedent, although it concerns the property of the estate, the executor may sue personally. Thus, when the executor sold property of the estate on credit, it was held that an action to recover the purchase price was properly brought in his individual name. Thompson v. Whit- marsh, 100 N. Y. 35 ; 44 Hun 201. And when the executor makes contracts pertaining to the affairs of the estate, he will be personally liable upon them, and must be sued in his indi- vidual capacity. Ferrin v. Myrick, 41 N. Y. 315 ; New v. Nicoll, 73 N. Y. 127. The instances in which an action may be brought against an executor or administrator personally, and also in his represent- ative capacity, are stated in § 1815. § 144. Trustee of an express trust. (Co. Civ. P. § 449.)— This clause is not limited in its operation to a trustee of an express trust in lands permitted by the Revised Statutes. It is intended manifestly to embrace not only formal trusts declared by deed inter partes, but all cases in which a person acting in behalf of a third party, enters into a written express contract with another, either in his individual name without description, or in his own name expressly in trust for or on behalf of, or for the benefit of another by whatever form of expression such trust may be declared (22 N. Y. 389, 395). The section provides that " 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 the section." The term, trustee of an express trust, is thus made to include this particular instance as one class, among others, embraced in the general phrase. The term, trustee of an express trust, includes such cases as those of a factor who has possession of goods (Zadd v. Arkell, 37 N. Y. Super. Ct. 35), and such a factor doing business in his own name, though for others, may sue a person in whose name §§ I4S> 146.] A PERSON AUTHORIZED TO SUE. 125 a contract is made for the benefit of another (6 How. Pr. 471); an assignee for the benefit of creditors (33 Barb 160); an agent who has taken a policy of insurance in his own name to cover property of his principal (65 N. Y. 6 ; 47 N. Y. 430). So when a note is made payable to one who is in fact the agent for the real owner, the payee is the trustee of an express trust (53 Hun 91). So one who has the authority of several owners to collect a claim in his own name is a trustee for them within this sec- tion. Noe v. Christie, 51 N. Y. 270. As between principal and agent, the general rule is, that the principal is the proper party to sue ; but if the contract is under seal, and signed by the agent in his own name as such, without stating the name of the principal, the agent alone can sue {Schaefer v. Henkel, 75 N. Y. 378 ; see Briggs v. Partridge, 64 N. Y. 357); but where a contract not under seal is made with an agent in his own name for an undisclosed principal, whether he describes himself as agent or not, either the agent or principal may sue on it (Considerant v. Brisbane, 22 N. Y. 389 ; Ludwig v. Gillespie, 105 N. Y. 653) ; but one who simply holds paper endorsed to him for purposes of collection is not a trustee of an express trust (30 Hun 488 ; see 7 Hun 342). This section, however, is permissive merely. It does not prohibit the actual beneficiary from joining in the action or from maintaining it (53 N. Y. 98). § 145. A person expressly authorized by statute to sue. — There are a number of instances where by statute a right of action is given to a particular person, or class of persons. As, for instance, rights of action conferred upon certain public officials (§ 1926), or upon the State, or upon certain individuals (§ I 9 2 5)> as upon the stockholders or creditors of a corporation. To these special statutory provisions it is not needful to refer at this time. § 146. Where the right of action is in more than one. (Co. Civ. P. §§ 446, 448.) — 1. Persons having joint rights arising by contract must all join as plaintiffs (35 Barb. 596; 45 N. Y. 786). The persons in whose favor an obligation runs, whether it arises out of an express or an implied contract, must all join as plaintiffs in an action to recover upon the obligation unless by express terms a several right of action is created. Corey v. Rice, 4 Lans. 141; Cornell v. The Mayor, 9 Hun 285. 126 PARTIES TO AN ACTION. [CH. VI. It is to be observed that where the right of action is joint, and one of the joint owners dies, the right of action vests in the survivor. Thus, if one or more of several partners in whose favor the claim originally existed has died, the action must be brought by the survivor. The better practice is, for the survivor to sue in his representative capacity. Thus, A B, as survivor of the firm of A B & Co., alleging in the complaint the partnership, death, and survivorship. Reeder v. Sayre, 70 N. Y. 190; 51 Super. Ct. 96. The survivor of the firm is the real party in interest to a demand owned by or due to the firm, and the debtor cannot object that the representatives of the deceased partner are not made parties with the survivor. Daby v. Ericsson, 45 N. Y. 786. In the case of limited partnership, the general partners only should sue (1 R. S. 766, § 14; 4 E. D. Smith 208; 4 Robt. 431). 2. Joint owners and owners in common of personal property must join in an action for a tortious injury to it (Zabriskie v. Smith, 13 N. Y. 322), or for its conversion (24 Hun 448), or to recover its possession {Russell v. Allen, 13 N. Y. 173). 3. Tenants in common of real property must join in an action for injuries to it (37 N. Y. 372), but one of them may sue severally to recover his undivided interest in realty (41 N. Y. 219). 4. Persons having rights arising from personal torts. The rule in this case is that the action must be brought by the persons injured severally, and they cannot join. It follows that when a tort of a personal nature, as an assault and battery, a false imprisonment, a libel, a slander, a malicious prosecution, and the like, is committed upon two or more, the right of action must, except in a very few cases, be several. One of the few excepted cases is a libe^against a firm. Townshend on Libel, sec. 303. We next inquire whether any other person than one jointly interested with others can be joined as a plaintiff. It will be observed that § 446 provides that " all persons having an interest in the subject of the action, and in obtaining the judgment demanded, may be joined as plaintiffs," while § 448 provides that " of the parties to the action, those who are united in interest must be joined as plaintiffs." It follows that all who are jointly interested must be joined as plaintiffs, but § I46.J RIGHT OF ACTION IN MORE THAN ONE. 1 27 that others who have an interest with the plaintiff may be joined. A good illustration of such a union of parties plaintiff is found in Winne v. Niagara Fire Ins. Co. (91 N. Y. 185), where the action was brought by the mortgagor and mortgagees of premises, to recover for a fire loss upon a policy of insurance made " loss if any payable to the mortgagee to the extent of his interest therein." The court said : " We think a joint action is proper. The plaintiffs have a common interest in enforcing the contract. The fund is applicable first upon the mort- gage debt, and when that is paid, the balance belongs to the mortgagor. It is, we think, quite appropriate and in accord- ance with the flexible rule of procedure now applied in courts of justice to allow persons situated as are the plaintiffs to unite in maintaining the action, and the practice is sanctioned by the language of the Code and of adjudged cases." In actions in equity, the rule as to parties plaintiff is not drawn with exactness. It is not a matter of so much conse- quence as a rule whether the party is made plaintiff or defend- ant, if the necessary and proper parties are before the court, and no further rules than those which have been stated as to actions at law need be stated as to equitable actions. There are three special cases to be considered : (1). When some who should be joined as plaintiffs refuse to join. — By § 448 it is provided that if the consent of any one who ought to be joined as a plaintiff cannot be obtained, he may be made a defendant, the reason therefor being stated in the complaint. Thus, if the right of action is in A, B, and C against D, and C will not consent to join as plaintiff, the action may be brought by A and B against C and D, the complaint alleging the right of action in A, B, and C, and stating the reason why C is not joined as plaintiff. (2). When one may sue or defend for the benefit of all (Co. Civ. P. § 448). — When the question is one of a common or general interest of many persons, or when the persons who might be made parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all. The action is then brought as follows : " A B suing on behalf of himself and all others sim- ilarly situated who may come in and contribute to the expense of the action." Such actions are frequently brought by one or more stockholders on behalf of all to restrain threatened illegal 128 PARTIES TO AN ACTION. [CH. VI. acts of the corporation, or its directors (96 N. Y. 444 ; 88 N. Y. 52; 37 N. Y..317). So, when the subject of an action is a common nuisance, as the construction of a railroad without authority, an action may be brought by several adjoining property owners on behalf of themselves and others to restrain the nuisance. Goe- let v. Met. Transit Co., 48 Hun 520. See Rogers v. N. Y. and Texas Land Co., 17 State R. 131. So an action may be brought by one judgment creditor on behalf of himself and all other judgment creditors of the debtor {Travis v. Myers, 67 N.Y. 542), or an action may be brought by one creditor on behalf of all to compel an assignee or trus- tee for their common benefit to account (48 N. Y. 62), and in such a case the court is authorized to direct that a notice be published requiring those interested to appear before a day named and exhibit their demands (Co. Civ. P. § 786) and thereby become parties to the action. It seems that while an action thus brought by one for many is pending, the party who brings it has the control and may discontinue it (13 Hun 273); but after judgment, it is for the benefit of all the stockholders, and the plaintiff ceases to have control over it (99 N. Y. 185). One who brings a suit in such representative capacity assumes a trust duty toward those for whose common benefit he assumes to act, and if he conducts the case so as to further his own interests at the common expense, an action may be maintained in the nature of a bill of review to set aside the judgment so obtained for fraud. Stevens v. Union Trust Co., 57 Hun 498. § 147. (3). Unincorporated association. — An action may be brought by the president or treasurer of an unincorporated association, consisting of seven or more persons, for any cause of action upon which all the associates might maintain the action (Co. Civ. P. § 1919). So also an action against such an association may be brought against the president or treasurer. PARTIES DEFENDANT. The Code (§447) provides, that "any person may be made a defendant who has or claims an interest in the controversy, adverse to the plaintiff, or who is a necessary party defendant, $ 148.] DEFENDANTS JOINTLY LIABLE. 1 29 for the complete determination or settlement of a question involved therein; except as otherwise expressly prescribed in this act." We note the distinction between necessary and proper parties defendant. Necessary parties defendant are those without whose presence no judgment can be rendered. Proper parties defendant are those whose presence renders the decree more effectual, and all the proper parties are those by whose pres- ence the judgment becomes a complete determination of all the questions that can be raised, and of all the rights which are connected with the subject of the action. 1 Rumsey Pr. 106. An illustration is found in an action to foreclose a mortgage. The owner of the land covered by the mortgage is a necessary defendant, because without his presence no decree can be made for the sale of the land. The holders of subsequent mortgages, judgments, and liens on the land are not necessary parties to a judgment of foreclosure and sale, but if the plaintiff wishes to determine all the rights of the parties in the land and foreclose their rights, so that the sale may pass a title free of incum- brance, he may make subsequent mortgage holders, judgment creditors, and lienors parties defendant, and they will be proper parties. § 148. Defendants jointly liable. — If the obligation upon which the defendants are sued is joint, all the obligors must be joined. Thus, in an action against partners, all the partners must be joined (54 N. Y. 673). If any of the partners have died, the survivors may be sued as survivors. And by § 758 of the Code, it is provided that the estate of a person, or party jointly liable upon contract with others, shall not be discharged by his death. The rule as to the survival of liability on the part of joint obligors and sureties is thus changed. See Pope v. Cole, 55 N. Y. 124; 77 N. Y. 480. If in the application of the rule requiring that all joint debt- ors should be made parties defendant it were not possible to proceed in an action until all had been served, great inconven- ience and delay might result. Hence subsequent provisions of the Code have been enacted to meet such a case, providing that when the complaint demands judgment for a sum of money against two or more defendants alleged to be jointly 9 130 PARTIES TO AN ACTION. [CH. VI. indebted upon contract, if the summons is served upon one or more, but not upon all the defendants, the plaintiff may pro- ceed against the defendant or defendants upon whom it is served unless the court otherwise directs; and if he recover final judgment, it may be taken against all the defendants thus jointly indebted (§ 1932). The judgment so entered is in form against all the defendants (Foster v. Wood, 1 Abb. N. S. 150), but it is enforceable only against the joint property of all the defendants and against the individual property of the defend- ant or defendants who have been served with the summons (§ 1933)- Thus in the case of a claim for a sum of money against a firm composed of A, B, and C, the action must be brought against A, B, and C as defendants, since they are jointly liable. If A only is served with the summons, judgment may in due time be entered in form against A, B, and C, and execution can be issued against the firm property and the individual property of A, but not against the individual property of B and C. § 149. Joint and several obligations on contract. (Co. Civ. P. §§454-457.) — When the liability is joint and sev- eral, the creditor has a choice of two modes, — he may treat the liability as joint and sue all in a single action, or he may treat it as a several one and sue each of the parties in a separate action (76 N. Y. 564). If the liability is several, at common law, several actions must be brought; but in this respect there are some important changes in the Code. It is provided (§ 454) that two or more per- sons severally liable upon the same written instrument, includ- ing the parties to a bill of exchange or 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 in the same action, at the option of the plaintiff. Under this section the plaintiff may sue the maker of a prom- issory note alone or in company with one or more of the endors- ers, or he may sue any one or more of the endorsers without the maker. He may sue all or one or more than one at his option (5 Daly 308), or he may join one of them and the repre- sentatives of one who is deceased (47 N. Y. 345). It is to be noted, however, that this section applies only to a liability upon a written instrument. This means the same instru- § ISO.] ACTIONS IN TORT AGAINST TWO OR MORE. I31 merit. It does not apply when the instruments are separate, though on the same paper, as, for instance, a lease with a guar- anty below it (24 Barb. 39); but when the surety is a party to the lease, he may be properly joined. The joinder of a person as defendant in an action as per- mitted, does not affect his right to an order or other relief to which he would have been entitled if he had been sued sepa- rately (§ 455). When the summons is issued against two or more defendants alleged to be severally liable, the plaintiff may serve one or more and may enter judgment against those served without regard to the others, and for this purpose the action may be severed by an order entered by the clerk so that judgment may be entered against some and continued against others. Thus, if you sue the maker and endorser of a promissory note, and the endorser defends, but the maker does not, you may enter judgment by default against the maker, continuing the action against the endorser to trial. There may be parties jointly and others severally liable in the same action ; thus on a note made by A and B, endorsed by C, A and B are jointly liable as makers. They must both be sued if either is, but C is separately liable and may be sued alone (21 N. Y. 300), or he may be sued in company with A and B. § 150. Actions in tort against two or more. — In actions arising upon tort, as a general rule the liability is joint and several. The plaintiff may sue one or more of the wrong-doers in one action. Thus, if three persons commit an assault upon plaintiff, he may sue them all or any one, or he may join two of them. But there are some torts which cannot be joint. Thus, if two persons utter the same slanderous words, at the same time, the tort is contemporaneous, but it is not joint, and the plaintiff could not bring an action against the slanderers jointly, but must sue them in separate actions. In actions in equity great liberality is allowed in joining par- ties defendant, in order not only that complete justice may be done, but that multiplicity of suits may be prevented, and this is the rule recognized by the Code. Dorham v. Lee, 87 N. Y. 599- 132 PARTIES TO AN ACTION. [CH. VI. § 151. Infant defendants. (Co. Civ. P. §§471, 473.)— There are three cases calling for attention : (1), where the infant is under 14 years of age ; (2), when it is 14 years or upwards ; (3), when it is a non-resident, or absent from the State. (1). If the infant is under 14 years of age, the application for the appointment of a guardian cannot be made until he has been served with the summons ; it may then be made by any other party to the action, or by a relative or friend of the infant; notice must be given to the general or testamentary guardian, if he has one within the State, or if he has none, to the person with whom he resides (Co. Civ. P. § 471). (2). If the infant is 14 years of age or over, he may apply for the appointment of & guardian ad litem within twenty days after personal service of the summons, or after service is complete under § 441, and if he neglects to do so, any other party to the action or a relative or friend may apply; notice must be given to his general or testamentary guardian, if he has one within the State, or if he has none, to the infant himself (§ 471). Where the application for the appointment of a guardian is made before the service of summons on the infant is complete, the appointment is irregular ; but if the service is afterward completed so that the court acquires jurisdiction of the person of the infant, the irregular proceedings for the appointment of the guardian may be corrected. Crouter v. Crouter, 133 N. Y. 55- (3). When the infant defendant resides out of the State, or besides in the State and is temporarily absent, the court in its discretion may make an order designating a persen to be his guardian ad litem, unless he, or some one for him, procures such a guardian to be appointed within a specified time after the service of the order. The court may give special direction in the order for the service thereof, which may be upon the infant. Summons may be served upon the guardian so appointed (Co. Civ. P. § 473)- The last subdivision of this section contains the only provision in the Code allowing a judgment to be entered against a defend- ant affecting his property without either actual or substituted service upon the party to be affected by the action, and to sus- tain proceedings under this section, it must be strictly complied with. Uhl v. Loughran, 14 Civ. Pro. 344. It seems that the order must direct that service be made upon some party not § I SI-] INFANT DEFENDANTS. 1 33 adverse in interest to the infant within the State (14 Civ. Pro. 344), and that it cannot be made by publication, or without the State. Notice in some form, actual or constructive, is essential, but the legislature may prescribe that notice shall be given to the parent or guardian, or other person as representing the in- fant, and proceedings in conformity with the statute in such cases will be valid, and the infant will be bound (55 Hun 207). "When in the case of an absent infant defendant an order was made designating a person guardian ad litem, unless a guardian was appointed within a specified time, and there was no consent filed by the person so designated, but afterward the infant's mother within the time named applied for the appointment of & guardian ad litem, and one was appointed, and filed a consent which was not acknowledged, it was held that the defect was not jurisdictional, the acknowledgment having been filed nunc pro tunc (55 Hun 207). But when the infant defendants were served by an order of publication without the State, and the guardian ad litem was appointed on application of plaintiff's attorney, after the time to plead had expired, and there was no appearance or pleading by the guardian on behalf of the infants, and after the entry of an interlocutory judgment the guardian applied to the court for leave to file his bond and consent, which leave was granted, it was held, on an application to compel a purchaser to take title on a sale in partition, that the entire proceeding for the appointment of the guardian was irregular and the court acquired no jurisdiction of the infants. Kennedy v. Arthur, 18 Civ. Pro. 390. The rules of court in reference to the selection of the guard- ian alluded to under "parties plaintiff" are equally applicable to guardians of infant defendants. Where an infant has been duly served, but no guardian ad litem has been appointed, the judgment entered is not void, but voidable, and may be set aside on application of the infant. McMurray v. McMurray, 66 N. Y. 175. The irregularity is cured if he comes of age before judgment. Sims v. IV. Y. Col- lege of Dentistry, 35 Hun 344. The guardian ad litem must answer the complaint. If there is no defence that he can interpose, he submits the rights of the infant to the court. A copy of the order appointing him should be served with his answer (49 Barb. 62). If the interests of the infant are likely to suffer by 134 PARTIES TO AN ACTION. [CH. VI. the neglect of the guardian, or of his attorney, the court will remove him (5 How. Pr 341; 22 Barb. 167). The practice on the appointment of a guardian ad litem for an infant defendant, where the infant has been personally served, is by petition either by the infant, if he is over 14, or by his guardian, relative, or friend, if he is under 14 years, or by any party to the suit, if more than twenty days have elapsed since the infant was served. The petition states the condition of the action, the facts as to whether there is or is not a general or testamentary guardian, and the interest which the infant has in the subject-matter of the action. It must be signed and verified and accompanied by a consent of the proposed guardian, and by an affidavit showing his responsibility. Where the infant has not been personally served with the summons, but is absent from the"State, a petition may be made by any party to the suit, setting out the fact of the pendency of the suit, the nature of the plaintiff's interest, his absence, and the facts as to the existing guardianship. There should be an affidavit and consent. The order made on this petition will provide that a party named shall be appointed guardian ad litem, unless the infant procures a guardian to be appointed within a time named, and the order will provide as to the mode in which it shall be served. 1 § 152. Unknown defendants. (Co. Civ. P. § 451.) — A defendant ought to be sued in the surname of his ancestors, and the christian name given to him in baptism (20 N. Y. 355, 363; 23 Abb. N. C. 475). The law recognizes but one christian name. The omission of the middle name is unimportant, and if a wrong middle name is inserted, it may be stricken out as surplusage (39 Barb. 479). When a person is known as well by one name as by another, he may be sued by either (5 Robt. 640). When the name of the defendant is unknown in whole or in part, the plaintiff may designate him by a fictitious name. Thus, "the man in command of the sloop Hornet" (4 How. Pr. 95). John Doe and Richard Roe are customary defendants when a fictitious name is used. Thus, Thomas C. Smith and "John Doe," whose real name is unknown, doing business under the firm name of " T. C. Smith & Co." It is proper also to state in the body of the complaint the fact that the defendant is sued by a fictitious name. Service on the person intended will be § 1 5 3-] BRINGING IN ADDITIONAL PARTIES. 1 35 good service, and this is true also of service by publication (§4Si). But this section cannot be used as a means of bringing in a person not sued, and not intended to be sued, but who after- ward turns out to be a necessary party (93 N. Y. 82). This sec- tion does not permit the use of a fictitious name when the real name is known (93 N. Y. 82; 52 How. 499). It implies an action already commenced, and a defendant sued, or intended to be sued, but identified or described by circumstances, or a descrip- tion instead of by his name, which happens to be unknown. § 153. Bringing in additional parties. (Co. Civ. P. §452.) — Section 452 provides that the court may determine the controversy between the parties before it, whenever it can do so without prejudice to the rights of others; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in. And when a person not a party to the action has an interest in the subject thereof, or in real property, the title to which may in any manner be affected by the judgment, and makes application to the court to be made a party, it must direct him to be brought in. We must distinguish here between different classes of actions. This section does not apply to an action at law for money or money damages. In such an action, if the proper parties are not before the court, the defendant may raise the objection by answer or demurrer, but if the proper parties to the recovery sought are before the court, neither the defendant nor a third party can insist that others shall be made parties to litigate other questions. Chapman v. Forbes, 123 N. Y. 532. But when the subject of the action is real or personal property, great lib- erality is shown in admitting as a party any person having any interest. Laddv. Stevenson, 112 N. Y. 325. A few illustrations of the application of this section may shed some light upon its meaning. It has been held that all persons interested in property at the time of filing of a lis pendens, and who would be cut off by the decree, are entitled as matter of right to be made defendants {Lawton v. Lawton, 54 Hun 415), and that one interested in the bonds of a railroad company secured by mortgage, could inter- vene in an action to foreclose the mortgage (6 Civ. Pro. 90). In I36 PARTIES TO AN ACTION. [CH. VI. proceedings to wind up an insurance company, parties interested, such as policy holders, may be allowed to appear and be made parties (77 N. Y. 297). So, in proceedings to acquire land for railroad purposes, persons claiming an interest in the lands (26 Hun 194). But third persons will not be allowed to intervene unless their presence is necessary to a complete settlement of the question between the original parties (18 Abb. 294). Thus, a claim to ownership of a wharf cannot be tried in an action between third parties for wharfage {Ibid.). Such new parties are brought in by supplemental summons, unless the order is made upon their application (§453). A sup- plemental summons is one addressed merely to the defendant to be served bringing him in as an additional party. When new parties are brought in, they are entitled to plead, and all the rights of parties litigant. They cannot be bound by hearings had before a referee before they were made par- ties {Wood v. Swift, 81 N. Y. 31), nor during the trial can they be brought in and bound by the judgment, simply by an order of the judge directing an amendment of the pleadings. Hood v. Hood, 85 N. Y. 561. § 154. Change of parties. — During the pendency of the action the cause of action may be assigned, and parties may buy or the rights may pass to others by operation of law. These matters are considered at § 755 et seq. § 155. Parties prosecuting or defending as poor per- sons. (Co. Civ. P. §§458, 460.) — A poor person, whether an infant or adult, not being of ability to sue, may apply for leave to sue as a poor person (§458). His petition must set out the nature of his cause of action and that be is not worth $100 beside his wearing apparel and furniture (§ 459). It must be verified and accompanied by the certificate of a counsellor-at-law to the effect that he has examined the case, and that the applicant has a good cause of action (§459). The court may then admit him to prosecute as a poor person, and assign him an attorney, who must act without compensation (§ 460). A person so admitted to prosecute or defend need pay no fees, and costs are not to be awarded against him. The provisions of this article need no special comment. The forms used in such actions can readily be found. CHAPTER VII. PLEADINGS, INCLUDING COUNTERCLAIMS. CHAPTER VI., CODE OF CIVIL PROCEDURE. § 156. Forms of action. — The general rules of pleading will be considered only to a limited extent and chiefly as they are affected by the provisions of the Code. The subject will per- haps be more intelligently studied after some general observa- tions on the form of an action under the Code. The Code in terms abolishes the forms of action as they existed at common law, and the distinction between actions at law and suits in equity. Its statement is that " there is only one form of civil action. The distinction between actions at law and suits in equity, and the forms of those actions and suits, have been abolished " (§ 3339). We are to remember, however, that forms of action are not the same thing as causes of action. The former are the arti- ficial formulae under which the latter may be tabulated. A cause of action is a conjunction of facts upon due presentation and proof of which a court of justice may award judgment. Hence causes of action may be classified according to the sub- stantial similarity of groups of facts upon which similar judg- ments or forms of relief may be obtained, and this grouping being inherent in the nature of things is not and cannot be abolished. The Constitution of the State, moreover, provides that trial by jury in all cases in which it had been in use at the time of the adoption of the Constitution, shall remain inviolate forever, except that a trial by jury may be waived by the parties in all civil cases in the manner provided by law. Constitution, Art. I., sec. 2. There is a distinction, therefore, between actions as to their (137) 138 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. mode of trial. Under the constitutional provision referred to, actions at law which were triable by a jury, are still to be tried by a jury, while actions in equity are triable by a court without a jury. Actions at law as they existed before the new proced- ure are, therefore, distinguished by the Constitution from suits at equity by the mode of trial. But they are also inherently distinguished by the characteristics which they had under the old system. Hence, while the names of actions no longer exist, we retain in fact the action at law and the suit in equity. Stevens v. The Mayor, 84 N. Y. 296. In examining a complaint, we must still inquire whether the cause of action stated is equitable or legal, because among other things, upon the answer to that question depends the mode of trial of the action. An equitable cause of action must contain all the averments of fact essential to entitle the plaintiff to equitable relief. A statement of a legal cause of action must contain the allegations of all the facts necessary to entitle the plaintiff to legal relief. Pleadings are distinguished in the ordinary language of the bar, as well as in judicial decisions, by the test as to whether they state an equitable or a legal cause of action, or one or more of either, and this distinction is inher- ent and inevitable, and must continue at least as long as trial by jury is retained as a distinctive mode of trial in certain classes of actions. § 157. Actions distinguished by subject-matter.— It is a fundamental rule of law, that a party must prevail according to the case made by his pleadings, or not at all. This arises from the very nature and purpose of pleading, which is to define the limits of the controversy between the parties, and to determine the subject-matter concluded by the judgment. Hence, as we have already seen, the jurisdiction of the court is confined to the point presented, which must be in substance and effect within the issue. This principle is embodied in the provisions of the Code in reference to the judgment to be entered in an action. Section 1207 provides, that "where there is no answer, the judgment shall not be more favorable to the plaintiff than that demanded in the complaint. Where there is an answer, the court may permit the plaintiff to take any judgment consistent with the case made by the complaint, and embraced within the issue." § 158.] ELECTION OF REMEDIES. 1 39 Hence, the cause of action stated must be one which can be sustained by the proofs. If the proofs fail to sustain the cause of action alleged, although they sustain another cause of action, the complaint must be dismissed. A cause of action, therefore, alleging a tort, cannot be sustained upon proof which would merely sustain a recovery upon contract. Ross v. Mather, 5 1 N. Y. 108 ; Reed v. McConnell, 133 N. Y. 425 ; Degraw v. Elmore, 50 N. Y. 1 ; Lockwood v. House, 101 N. Y. 647 ; 87 N. Y. 128. But since in some instances the same transaction may involve both the violation of contractual rights, and also an injury to person or property depending upon the aspect from which the transaction is viewed, the pleader who attempts to state the transaction must choose whether he will regard it from the point of view of a breach of contractual rights, or of a tortious injury to the person or property. § 158. Election of remedies. — Hence arises the doctrine of election of remedies which is important in the law of pleading, since the party who, with knowledge of the facts, elects to pro- ceed as upon contract, will waive his right to proceed upon tort. A familiar illustration of the election of remedies is found in the case where one's personal property has been obtained by another by means of a fraudulent purchase, in which case the vendor may sue for the price on the contract, or rescind the contract of sale, and maintain replevin for the goods, or trover for their value. Terry v. Munger, 121 N. Y. 161 ; Walter v. Bennett, 16 N. Y. 250; Creighton v. Haggerty, 50 Super. Ct. 9. And so, where a party has purchased goods on a credit obtained by false rep- resentations or fraud, the seller may rescind the contract and sue at once for the value of the goods (34 Barb. 84 ; 27 Barb. 652), or he may sue for the contract price, but in that event he must wait until the expiration of the credit before bringing his suit. And where an agent converts property of his principal in his hands, and which he has agreed to pay over, the principal has his election to sue for breach of the contract or for conversion. CoitM. Stewart, 50 N. Y. 17. When the choice of rights is made upon a full knowledge of the facts, the character of the com- plaint is conclusive evidence of an election, and the party will be precluded from changing the character of his claim to the prejudice of the defendant. Conrowv. Little, 115 N.Y. 387-393; 140 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. Terry v. Munger, 121 N. Y. 161; Wallace v.. O' Gorman, 25 St. Rep. 261. The selection of the remedy may be important also in other ways. Thus, an infant not liable upon a contract may be liable for obtaining goods fraudulently. See Studwell v. Shapter, 54 N. Y. 249 ; Kobbe v. Price, 14 Hun 55 ; Blossom v. Barrett, 37 N. Y. 434. So, when goods have been obtained on a fraudulent credit by suing for the value, a plaintiff may state a case in which he can apply for an attachment at once, and thus pos- sibly obtain security for his claim (46 State R. 147). § 159. Pleadings as distinguished by their subject- matter. — We may go further in classifying and arranging actions as to their subject-matter. As to equitable causes of action, as well as actions at law upon contract or tort, the proof must in substance sustain the cause of action alleged. If it fails to do so, the complaint cannot be sustained in support of a different cause of action proved. Where the case framed is either on contract or tort, and the proof is of a different contract or tort from that alleged, the action cannot be sustained. Place v. Minster, 65 N. Y. 89, 102. The illustrations of this principle given by Dwight, C, in the case just cited, are as follows : "If a complaint charges defendants as carriers, and the proofs show that they are for- warders, the case must fail (28 Barb. 485). So, of an allega- tion that the defendant guaranteed a note, and proof that he endorsed a note (4 Duer 45). So, of a charge of negligence in not constructing a cattle-guard, and proof of a neglect to fence (16 Barb. 315)." Other later illustrations are, a complaint alleging unlawful taking, held not to be sustained by proof that the defendant came lawfully into possession of the property, but unlawfully detained it ("52 Super. Ct. 529). So, on a complaint of fraud in settlement of an account, recovery cannot be had on proof of mutual mistake (76 N. Y. 36). So, where the complaint is based on the validity of a transaction, judgment cannot be based on its illegality (57 N. Y. 681). These cases serve to illustrate the principle that the pleader must state with reasonable precision the facts in their relations to each other, upon which his right of recovery depends. We perceive, therefore, that causes of action classify themselves §§ l6o, l6l.J EVERY MATERIAL FACT MUST BE PLEADED. 141 according to the subject-matter, and we discover that in the main the classification tends to the logical division of rights of action upon lines similar to those upon which the common- law forms of action were distinguished. So that one may often be greatly helped in pleading under the Code, by referring to the form of action under which the particular case in hand would have been classed at common law, and then considering the facts essential to be stated in such a form of action. While, therefore, forms of action have been abolished, and all that was merely technical and formal, and had to do with mere modes of expression, together with all that rested in fiction and fancy, has disappeared, and noth- ing remains but the statement of the facts necessary to the cause of action, yet it still remains true that all actions are dis- tinguishable by their mode of trial, and by their subject-matter, according to the fundamental distinctions which controlled the classification of actions under the former procedure. Passing now from these general observations, we come next to consider some of the general rules of pleading which apply to all cases, and which are for the most part time-honored. GENERAL RULES OF PLEADING. § 160. Every material fact must be pleaded. — Every fact which the plaintiff must prove to maintain his suit, and which the defendant has a right to controvert in his answer, must be distinctly stated. No proof can properly be received of any issuable fact not alleged in the pleading if proper objection is taken. Bailey v. Ryder, 10 N. Y. 363. Thus, where by statute it is provided that no action shall be brought against a city until the expiration of a certain time after the presentation of the claim, the fact of the presentation of the claim and the expiration of the time specified must be stated in the complaint on the claim. Rein- ing v. City of Buffalo, 102 N. Y. 308. § 161. Facts should be pleaded, and not evidence of the facts. — The facts which are to be alleged are issuable facts, that is, facts essential to the cause of action or defence, and not those facts which go to establish such essential facts (4 How. Pr. 317; 5 How. Pr. 470). A simple illustration is the defence of 142 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. payment. It is enough to allege that the claim sued on was fully paid before the action was brought. Under such an allegation any extent of detailed evidence necessary to establish payment would be admissible. The facts essential to be pleaded are sometimes referred to as the "ultimate" facts, as distinguished from the subsidiary facts, which go to make up the ultimate facts and are evidence of them (4 Civ. Pro. 112). § 162. Facts and not conclusions of law should be pleaded.- — An illustration of the application of this rule may be found in a complaint or defence based on usury. It would not be enough to allege that the contract was usurious. That would be a conclusion of law. It must be alleged that there was an agreement to reserve a rate of interest larger than that permitted by the statute setting out the precise rate of interest reserved. Another illustration is found in an action against an endorser where the complaint alleged that the note was protested for non- payment of which the maker had notice. It was held that the word "protest" was not a statement that the endorser had notice of the demand of payment on the maker and non-pay- ment. The court said : " The pleader must not aver a legal conclusion as the equivalent of the group of separate facts from which it is an inference. The allegation should be such and so stated as to permit a distinct traverse and evolve a definite issue." Cook v. Warren, 88 N. Y. 37. But the pleader may aver a conclusion of fact as the equivalent of a group of separate facts. Thus he may allege that the defendant converted the plaintiff's property to his own use, and the conversion may be proved by demand for the property and refusal. Thayer v. Gile, 42 Hun 268. But when the complaint alleged that the defendant had become possessed of and wrongfully detained a piano of certain value it was held that the complaint did not state facts sufficient to constitute a cause of action. There was no averment of ownership or right of possession in plaintiff, and the statement of wrongful detention resting upon no averment of fact to show why the detention was wrongful, was a conclu- sion of law. Scofieldv. Whitelegge, 49 N. Y. 259. § 163. Facts should be stated according to their legal effect. — This is scarcely more than saying that conclusions of §§ 164-167.] MATTERS JUDICIALLY NOTICED. I43 fact should be stated. Illustrations of this rule are as fol- lows : In pleading a contract made by an agent for the principal, it is sufficient to aver that the contract was made by the principal (8 Hun 557); an action against a principal to recover damages through false representations made by an agent, the plaintiff may allege that the principal himself did the wrong (21 N. Y. 238). § 164. It is not proper to anticipate a defence and nega- tive a possible plea of the adverse party. — Thus it is wrong for the plaintiff to allege in his complaint facts to avoid the statute of limitations (36 Barb. 628 ; 12 N. Y. 635). § 165. That which the law implies need not be alleged. — Thus when the complaint contains allegations of all the facts necessary to a cause of action on an implied promise to pay, it need not in terms allege a promise to pay (17 N. Y. 227). The better course, however, is to aver the promise (15 Barb. 32). So if it alleged that one is the heir of persons it need not be averred that the person is deceased. § 166. Matters judicially noticed need not be pleaded. — It is never necessary in pleading to state matters of which the court takes judicial notice ; therefore, it is unnecessary to state mere matter of common or public statute law, matters of pub- lic history (41 N. Y. 397), but foreign laws (5' N. Y. 447), and the laws of other States (10 Wend. 75; 22 N. Y. 472), must be pleaded. § 167. Every statement of fact should be made concisely. — The Code requires that the complaint must contain a plain and concise statement of the facts without unnecessary repeti- tion (§ 481). It has been held, however, that the plaintiff may state the same transaction under various counts, — as upon an express contract, a quantum meruit, and on an assigned claim of the contract alleged to have been made with a third party. Blank v. Hartshorn, 37 Hun 101 ; 31 Hun 432. 144 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. SPECIAL RULES AND PROVISIONS APPLICABLE TO PARTICULAR SUBJECTS AND CASES. § 168. Rights of action created by statute. — In pleading a liability or defence arising by statute, it is of course essential to state all the facts which under the statute are necessary to create the liability or defence, and it is well to follow the lan- guage of the statute so far as it deals with facts. One seeking to maintain an action under a statute must state specially every fact requisite to enable the court to judge whether he has a cause of action arising under the statute (49 N. Y. 266). It is stated as a rule of pleading that an exception in a statute must be negatived in pleading, while a proviso need not ; and this, it is said, is on the ground that an exemption by proviso is matter of defence that a party must show to relieve him from the liability. Harris v. White, 81 N. Y. 532, 546. There is a distinction in pleading between public and private statutes. The court is bound to take judicial notice of a public statute. In pleading a private statute or a right derived therefrom it is sufficient to designate the statute by its chapter, year of pass- age, and title, or in some other manner with convenient cer- tainty without setting forth any of the contents thereof (§ 530). §169. Actions upon an account. (Co. Civ. P. §531)— By this is meant an action upon a series of items constituting an account current. In such a case it is not necessary for a party to set forth in a pleading the items of an account therein alleged, but in that case he must deliver to the adverse party, within ten days after a written demand therefor, a copy of the account, which if the pleading is verified must be verified by his affidavit, to the effect that he believes it to be true, etc. If he fails to deliver such a copy of the account, he is precluded from giving evidence of the account. The section provides for a bill of particulars in two instances: (1), where an account is alleged in a pleading; (2), in other cases. The court has a general power to require a party to furnish particulars of his claim or defence in every case. This general power is considered hereafter. But where an account is alleged, the adversary may demand a copy of the account, § 169. J ACTIONS UPON AN ACCOUNT. 145 which must then be furnished. If a demand for a copy of an account is made in a case in which the party upon whom the demand is made thinks no account is alleged, the question whether the party demanding is entitled to the account, has sometimes been raised by a motion to set aside the demand {Barkley v. R. &* S. R.R. Co., 27 Hun 515), but in the case cited the court thought the motion unnecessary, if not improper. The word " account " has been said to apply to almost every claim or contract which consists of several items (27 Hun 515). It is not confined to the case of an account stated, and it does not exclude such a case (39 Hun 315). The party seeking it' must demand a copy of the account, but an order for it is not necessary in the first instance (37 Super. 313). The copy of an account should state each item with its date, amount, and gen- eral character (8 How. Pr. 329). Where a bill of items was served containing the items of services sued for, but not plac- ing a value on any separate item, it was held not to be suffi- cient (1 Law Bui. 42), and all the items of the account on each side, both debit and credit, should be given in the copy of the account (Candee v. Doying, 5 Civ. Pro. 92). If the account served is not sufficiently definite, the party must move for a further account (12 How. Pr. 22), which he may do at any time before trial, even after a reply has been served (9 How. Pr. 186). An order for a further account should state the particulars in respect to which the further specifications are required (8 How. Pr. 329). The court may order a more particular statement in the specification of any item of the account ("39 Hun 315). The penalty for a failure to serve an account upon demand is, that the party shall be precluded from giving evidence of the account (§ 531). The order that he be so precluded should be obtained at Special Term (16 Abb. N. S. 34; 42 Super. 184). A party will not be precluded on the trial from giving evi- dence, unless a motion has been made and an order obtained (120 N. Y. 33). ^ The proper practice, where a copy of the account is desired, is to- serve a demand that a copy of the account duly verified be served within ten days after service of the demand. If the copy account is not served, prepare affidavits showing the ser- vice of demand and the fact that no copy has been received and a notice of motion for an order directing that the party be pre- cluded from giving evidence of the account. The affidavits IO 146 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. and notice must be served as hereinafter explained. But the court is not confined to the penalty prescribed by the statute. If a party refuses to obey the order of the court requiring him to furnish a copy of his account or a bill of particulars of his claim, the court may as a penalty stay his proceedings until he complies with the order, or may in advance order that his proof be excluded, or it may strike out his complaint. Gross v. Clark, 87 N. Y. 272. § 170. Instruments for the payment of money only. (Co. Civ. P. § 534.) — When a cause of action, defence, or coun- terclaim is founded upon an instrument for the payment of money only, the party may set forth a copy of the instrument and state that there is due to him from the adverse party a specified sum which he claims. Such an allegation is equiva- lent to setting forth the instrument according to its legal effect. The pleader is not confined to this, mode of pleading on a written instrument for the payment of money only. He may plead the legal effect of the document; that is to say, its sub- stance (4 Abb. Pr. 127). The section applies to instruments which raise an implied promise to pay, as well as to those which contain an express promise (12 Hun 637; 10 Daly 344). But it does not apply to conditional obligations (76 N. Y. 397), nor to a mortgage pleaded in foreclosure (7 Hun 300; 7 Civ. Pro. 219). The copy is equivalent only to pleading the terms of the instrument according to its legal effect (§534); it does not dispense with whatever extrinsic facts are necessary to a complete cause of action as to consideration (34 Barb. 522), or validity (Broome v. Taylor, 76 N. Y. 564), or the title and interest of the plaintiff, or whatever other facts are necessary to enable the plaintiff to recover. The case last cited was on a bond made by a husband and wife; and it appearing upon the face of the complaint that it was the obligation of a married woman, the complaint was held insufficient as against her because not alleged to have been made for the purposes of her separate estate, but it was held good against the husband. The section applies to promissory notes (19 N. Y. 231), although payable in instalments (10 Daly 344). But in all actions against an endorser on a note pleaded by setting out a copy, the endorsement must be alleged and also the demand and notice (Conkling v. Gandall, 1 Abb. Ct. Ap. §§171. 172.] PLEADING CONDITIONS PRECEDENT. 1 47 Dec. 423) ; and a complaint on a promissory note which set forth a copy of the note, but did not allege the making thereof by defendant, was adjudged insufficient. Vogle v. Kirby, 15 Civ. Pro. 332. See Cohn v. Husson, 113 N. Y. 662. § 171. Pleading conditions precedent. (Co. Civ. P. § 533.) — In pleading the performance of a condition precedent on a contract it is not necessary to state the facts constituting per- formance, but the party may state generally that he or the per- son whom he represents duly performed all the conditions on his part. If that allegation is contradicted he must on the trial establish performance. It is essential to the legal statement of a cause of action for breach of a contract, that it should show an existing contract and performance by the plaintiff or tender of performance and breach by the defendant (101 N. Y. 328). Whenever the defend- ant's liability depends upon the performance of a condition precedent, it is very plain that no action will lie until it be per- formed, and performance must be averred and proved (102 N. Y. 308). The pleader may prove performance in detail under this section, under an allegation that he has duly performed all the conditions on his part. An allegation that the condi- tions were fully and faithfully performed is sufficient (1 Bosw. 44). But an excuse for non-performance cannot be proved under an allegation of due performance. Hence if the plain- tiff intends to rely upon such excuse he must set it up in his complaint (44 Hun 184; n N. Y. 25, 33). § 172. Judgment how pleaded. (Co. Civ. P. § 532.) — In pleading a judgment or other determination of a court or offi- cer of special jurisdiction, it is not necessary to state the facts conferring jurisdiction, but the judgment or determination may be stated to have been duly given or made. If that allegation is controverted the party pleading must on the trial establish the facts conferring jurisdiction (§ 532). This section changes the rule at common law, which required that in an action on a judgment of a court not of record or of special jurisdiction, the facts showing jurisdiction of the subject-matter and of the person should be pleaded (4 N. Y. 374). The jurisdiction of a Superior City Court is presumed, and it is unnecessary to allege jurisdictional facts in an action upon a 148 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. judgment or other determination of a court of general jurisdic- tion (8 N. Y. 254). Whether this section applies to judgments of foreign States has been doubted (47 Super. Ct. 372 and cases); it is, therefore, advisable in pleading such judgments to allege the facts which show jurisdiction. § 173. Pleadings in libel and slander. (Co. Civ. P. §§ 535, 1906, 1907, 1908.) — It is not necessary in an action for libel or slander to state in the complaint any extrinsic fact for the pur- pose of showing the application to the plaintiff of the defama- tory matter, but plaintiff may state generally that it was published or spoken concerning him, and if that allegation is controverted the plaintiff must establish it on the trial. In such an action the defendant may prove mitigating circumstances notwithstand- ing he has pleaded or attempted to prove a justification (§ 535). The only change made by the Code in pleading in libel and slander, is to dispense with the averments of extrinsic facts showing the application of the slander to the plaintiff. It is still necessary, if the words complained of derive their libellous or slanderous import from extrinsic facts, that the complaint should aver these facts and connect them with the words charged as libellous or slanderous. Dias v. Short, 16 How. Pr. 322. This was the office of the colloquim at common law. By the innuendo the meaning intended to be affixed by the defend- ant to particular words used was explained, and this is still proper when the words are ambiguous, but it is only necessary to aver that the words were spoken of and concerning the plaintiff without setting out the facts. In pleading in libel, when the words used are actionable per se, it should be alleged that the defendant with malice or wrong- fully published concerning the plaintiff the false words follow- ing, and then set forth the exact words employed. If in a for- eign language, they should be set out with their English meaning. If ambiguous or ironical, the special sense in which they were employed by the defendant should be stated. If the language is not defamatory on its face, it should be shown how it is defamatory. If the words are actionable only because spoken of the plaintiff in his business or profession, his business at the time should be alleged, and it should be charged that the words were spoken of or concerning him in such business .§ 1 73-] PLEADINGS IN LIBEL AND SLANDER. 149 or profession (33 Barb. 615). If the words employed do not necessarily refer to the person complaining, he must allege in some issuable form that they were intended to and were under- stood as to be applicable to him, or the complaint must follow the form presented by the Code and allege that the defama- tory matter was published by and concerning the plaintiff. Crane v. O'Reilly, 13 Civ. Pro. 71. But when the statement of the complaint shows that the defamatory words did not apply to the plaintiff, the defect is not supplied by an innuendo. Fleischmann v. Bennett, 87 N. Y. 231. The latter part of the section, permitting proof of mitigating circumstances, notwithstanding an attempted justification, was intended to soften the rigor of the common law by the rules of which an unsuccessful attempt at justification was regarded as an aggravation of the original wrong enhancing the damages. The rule now seems to be, that when the defendant honestly and in good faith sets up and attempts to prove a justification, but fails, the jury should be charged that such unsuccessful attempt does not enhance the damage, but that if there is an entire failure of proof to sustain the charge, and the jury believe it was inserted maliciously and without probable cause, they may consider that fact on the question of damages. Cruikshank v. Gordon, 118 N. Y. 179. See Klinck v. Colby, 46 N. Y. 427 ; Spooner v. Keeler, 51 N. Y. 527 ; 11 N. Y. 347 ; 29 N. Y. 547- It is provided by a later section of the Code (§ 1906), that in an action of slander brought by a woman for words imputing unchastity to her, it is not necessary to allege or prove special damage, and if the plaintiff is married the damages recovered are her separate property. It is also provided that an action civil or criminal cannot be maintained against a reporter, editor, pub- lisher, or proprietor of a newspaper for the publication therein of a fair and true report of any judicial, legislative, and other public and official proceedings without proving actual malice in making the report (§ 1907); but the section last cited does not apply to a libel contained in the heading of the report ; or in any other matter added by any person concerned in the pub- lication, or in the report of anything said or done at the time and place of the public and official proceedings which was not a part thereof (§ 1908). 150 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. § 174. Entire cause of action. — Coupled with these general observations there should be stated the further rule, that the plaintiff having an entire and indivisible demand cannot split it up so as to make it the basis of two or more actions. The distinction between demands or rights of action which are single and entire, and those which are several and distinct, is that the former immediately arise out of one and the same act or contract, and the latter out of different acts or contracts (102 N. Y. 4). An account for goods sold, where the whole account is due, is an entire demand incapable of being split for the purpose of bringing separate suits. Accordingly when a creditor split an account into two parts and brought suit for one part, and was defeated and subsequently brought a suit for the residue, it was held that the former suit was a bar. Guernsey v. Carver, 8 Wend. 492 ; Stevens v. Lockwood, 13 Wend. 646. Where the business of ship carpenters was carried on in one part of a building by two of the partners in a firm, and the busi- ness of ship chandlers in another part of the same building, un- der the direction of a third partner, it was held that work done and material furnished in the ship carpenter branch of the busi- ness to the captain of a brig, and goods supplied to the same cap - tain from the ship chandler department, did not constitute an en- tire claim, but on the contrary were different causes of action. Secor v. Sturgis, 16 N. Y. 548. When the same instrument, as a lease, provides for the payment of several instalments of money falling due at different periods, all the instalments due when the suit is brought must be included, /ex v. Jacob, 19 Hun 105. In the case cited an action was brought to recover two quarters of rent which accrued in August and November. After that suit was brought the plaintiff brought another action for a balance of rent due in the February preceding. This, as you observe, might have been included in the action brought for the August and November rent. Judgment having been recovered and paid for the February rent, the defendant pleaded the judgment and payment by way of supplemental answer on the action for August and November, and this answer was held good on demurrer. The object of the rule we are considering is the prevention of vexatious or oppressive litigation, and the rule itself is, that there can be but one recovery for an injury from a single wrong, § 1 75-J EXECUTORS AND ADMINISTRATORS. 151 however numerous the items of damage may be (49 N. Y. 42), and but one action for a single breach of contract {Perry v. Dickerson, 85 N. Y. 345), and that all successive breaches of a single contract are parts of one indivisible demand so far as they were actionable at the time of the commencement of the suit. But the holder of several past-due promissory notes against the same parties may bring separate actions upon each and recover on one, and satisfaction of the judgment is not a bar to the other actions. The fact that the notes were given upon settlement of one and the same demand does not make each a part of the original demand so as to compel the bring- ing of a single action upon all the notes. Nathans v. Hope, 77 N. Y. 420. SPECIAL RULES IN REFERENCE TO THE CA- PACITY IN WHICH THE PARTY PLEADS. § 175. Executors and administrators. — When the party sues or is sued in a representative capacity as executor or administrator, the word " as," or its equivalent, should be employed, otherwise the addition of the words administrator or executor to the name may be regarded as descriptio personcB ; but when the averments in the body of the complaint are such as to affix to the plaintiff a representative character and stand- ing in the litigation and to show that the cause of action, if any, devolved upon him solely in that character, the omission in the title to the action of the word " as " does not prevent him from claiming in a representative capacity (73 N. Y. 292, 297; 94 N. Y. 302, 306). So, where two of the plaintiffs were named in the title of the action " as executors," but the cause of action set out in the complaint was in behalf of the plaintiffs as individuals, it was held that the words " as executors " might be treated as surplusage (9 State R. 477). So, when the defendant was sued individually and as assignee for a conver- sion of a sum of money alleged to have been declared as a dividend to the plaintiff by the defendant as assignee in bank- ruptcy, it was held that the cause of action was against the defendant individually, and the words " as assignee " might be disregarded (45 Hun 253). But in Landon v. Towns/tend (112 N. Y. 93) it was held that where an assignee in bankruptcy was a necessary party to a 152 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. foreclosure suit, and he was made a party defendant, but not in his official character, and there was no averment in the com- plaint of his representative character, the mere fact that he was named as a defendant did not bind the estate of the bank- rupt. § 176. Guardian. — Where the plaintiff is an infant suing by guardian, the complaint should contain an allegation of the appointment in traversable form (13 How. Pr. 413). It is not enough to simply commence the complaint, " J. G. by J. G., his guardian " (44 Barb. 173). The complaint should be entitled as the summons in the name of the infant by the guardian. § 177. Receiver. — In an action brought by a receiver, unless the fact of appointment is stated, plaintiff does not show any right to sue (13 N. Y. 83). It is not necessary to set out the particulars of the proceedings upon which the appointment was made (28 Barb. 34). An allegation that plaintiff was "duly" appointed receiver at a time and place by a court or judge in a proceeding named is sufficient (45 N. Y. 166). But when the receiver alleges title to real estate by reason of his appointment, it seems that he must allege all the steps neces- sary to convey the title to him by operation of the order or judgment under which he claims (75 N. Y. 298). § 178. Corporations. — The Code provides that in an action brought by or against a corporation, the complaint must aver that the plaintiff or the defendant, as the case may be, is a cor- poration ; must state whether it is a domestic corporation or a foreign corporation, and if the latter, the State, county, or government by or under whose laws it was created. But the plaintiff need not set forth or specially refer to any act or proceeding by or under which the corporation was created (§ i77S)- By § 3343, par. 18, a domestic corporation is defined as a corporation created by or under the laws of the State ; or located in the State and created by or under the laws of the United States, or by or pursuant to the laws of the colony of New York before April 19, 1775. Every other corporation is a "foreign corporation." Some conflict of authority has arisen as to whether a com- plaint was demurrable which failed to comply with § 1775. §§ 179, ! 8o.J THE FORMAL REQUIREMENTS. 1 53 It seems now to be settled that if the averment in the complaint is such as to show whether the corporation is a domestic or foreign corporation, it is sufficient though the corporation is not described as "domestic" or "foreign" (52 Hun 307; 15 Civ. Pro. 250). If there are no facts stated which afford the court the means of determining whether the corpo- ration is domestic or foreign, or if, being foreign, the complaint does not disclose the State, county, or government under whose laws it was created, the complaint is demurrable (17 State R. 389; 8 Civ. Pro. 401). § 179. Unincorporated association. — Where a suit is brought in the name of an officer of an unincorporated asso- ciation, the complaint must allege that the association consists of more than seven associates (10 Abb. Pr. 204. See § 1919). COMPLAINT. We come next to consider the provisions of the Code as to the complaint, which is the first pleading on the part of the plaintiff (§ 478). We may divide the subject as follows : 1. The formal requirements ; 2. The statement of the facts constituting the cause of action ; 3. The joinder of causes of action ; 4. Demand of judgment. § 180. The formal requirements. — By section 481 it is provided that the complaint must contain — 1. The title of the action specifying the name of the court in which it is brought; if it is brought in the Supreme Court, the name of the county which the plaintiff designates as the place of trial, and the names of all the parties to the action, plaintiff and defendant. 2. A plain and concise statement of the facts constituting each cause of action without unnecessary repetition. 3. A demand of the judgment to which the plaintiff supposes him- self entitled. Mr. Throop says that the word " must " was inserted in the first paragraph instead of " shall," to overrule certain cases in which it had been held that the name of the court need not be inserted in the complaint if it appeared in the summons. If the name of the court does not appear, a motion may be made to set aside the complaint (14 How. Pr. 70), and so also 154 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. if the place of trial is not designated; but these and other irregularities are amendable (13 How. Pr. 287). They are not waived by waiting until the time to answer expires or by obtaining an extension (10 How. Pr. 31). The names of all the parties should be correctly stated. The rules as to names and as to unknown names are substantially as heretofore stated in reference to the form of the summons. If the parties are properly named in the summons, but there is an irregularity in the complaint in this respect, an amended complaint correcting the error may be served within the time allowed; but if the error is in the summons also, the only method of correcting the error is by motion. § 181. The statement of the cause of action. — The Code requires the complaint to contain a plain and concise statement of the facts constituting each cause of action without unneces- sary repetition (§ 481). Where the complaint sets forth two or more causes of action, the statement of facts constituting each cause of action must be separate and numbered (§ 483). The words "cause of action" as used in the Code do not appear to have been judicially defined. We may say that, as used here in connection with the complaint, the cause of action means the statement of the facts from which the plaintiff's right is deduced and the facts showing the invasion of that right by the defendant. Pomeroy's Remedies and Remedial Rights, sec. 455 et seq. All good pleading, it is said, may be reduced to a syllogism. Thus, Mr. Gould says that in an action brought for a trespass committed upon land the declaration may be presented in the following form: "Against him who has forcibly entered upon my land I have a right by law to recover damages. The defend- ant has forcibly entered upon my land; therefore against him I have a right by law to recover damages." In the example so given the first or major proposition asserts the legal principle upon which the plaintiff founds his claim; the second or minor alleges the matter of fact to which the principle is to be applied in the particular case. The conclusion is the legal inference resulting from the law and fact together as they appear in the premises. And the judgment of the court, if for the plaintiff, is a reaffirmance of the conclusion together with the award or sentence of recovery in pursuance of it. Gould on Pleading, §§ 182,183.] FORM OF ALLEGATIONS. 1 55 § 8. The complaint does not contain the whole logical state- ment of the plaintiff's right to relief. It eliminates the state- ment of the proposition of law and requires only a statement of the facts constituting the cause of action. § 182. Form of allegations. — The allegations or denials in a verified pleading must in form be stated to be made by the party pleading. Unless they are therein stated to be made upon the information and belief of the party they must be regarded for all purposes including a criminal prosecution as having been made upon the knowledge of the person verifying the pleading. An allegation that the party has not sufficient knowledge or information to form a belief with respect to a matter must for the same purposes be regarded as an allega- tion that the person verifying the pleading has not such knowl- edge or information (§ 524). All the averments of a complaint may be made upon infor- mation and belief, and care should be taken not to permit the person verifying the complaint to swear to that as of his own knowledge which he knows only by information from others. As to defences we shall see that denials may be made either absolutely or upon information and belief, or a denial of suffi- cient knowledge or information to form a belief, and all new matter may be pleaded either as of the pleader's knowledge or upon information and belief, and by adopting the proper form whenever there is a substantial defence it may be set up in such a way that it can be truthfully verified. § 183. Joinder of causes of action. (Co. Civ. P. § 484.) — The Code provides (§ 484) that the plaintiff may unite in the same complaint two or more causes of action, whether they are such as were formerly denominated legal or equitable, or both, where they are brought to recover in the nine classes of action specified in the subdivisions which we shall consider separately. It provides, however, that it must appear on the face of the complaint that all the causes of action so united belong to the same subdivision, that they are consistent with each other, and except as otherwise prescribed by law that they affect all the parties to the action, and it must appear on the face of the complaint that they do not require different places of trial. The conditions upon which causes of action may be joined 156 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. are, therefore, four : 1st, that they belong to the same sub- division of this section ; 2d, that they are consistent ; 3d, that they affect all the parties; 4th, that they do not require differ- ent places of trial. The subdivisions or classifications of causes of action which may be joined are as follows : 1. Those upon contract express or implied. This provision has provoked little difference of opinion. It is simple. Where the gravamen of one cause of action was the right to recover back money paid upon a contract repudiated by the plaintiff for fraud, and the other cause of action was to recover back money paid on the ground that the defendant had repudiated the contract and refused to perform, it was held that both causes of action were on contract and properly joined (61 N. Y. 492). 2. Causes of action,for personal injuries (except libel, slander, criminal conversation, or seduction). Thus, a cause of action for malicious prosecution and another for false imprisonment may be joined in one complaint (97 N. Y. 590; 2 Civ. Pro. 210). 3. Actions for libel and slander. An action for injury to the person and also for slander can- not be united (53 Barb. 238). In libel all who concur in its publication may be sued together, but in slander every speaker must be sued separately (2 Abb. Pr. 430; Townshend on Libel, sees. 115, 118). 4. Causes of action for injuries to real property. Thus, a cause of action for a trespass in wrongfully entering one's premises may be joined with a cause of action for the conversion of personal property. Colton v. Jones, 7 Robt. 164. In Thomas v. Utica & B. R. R.R. Co. (97 N. Y. 245) it was held that a cause of action for flooding plaintiff's lands by the erec- tion of an embankment, and a cause of action for damages for failure to build a farm crossing as required by statute, were not both injuries to real property and were improperly joined, for the reason that the second cause of action was one arising from an implied contract or obligation of defendants to per- form the duty required. 5. Causes of action brought to recover real property in eject- ment with or without damages for the withholding thereof. By § 1496, in an action to recover real property or the § 183.J JOINDER OF CAUSES OF ACTION. 1 57 possession thereof, the plaintiff may demand in his complaint damages for withholding the property ; and these damages include the rents and profits or the value of the use and occu- pation (§ 1497). The last-named section overrules the case of Larnedv. Hudson (57 N. Y. 151). Equitable claims affecting real property may be joined in an action to recover the property. Thus, an action to set aside a deed and recover the property conveyed (41 N. Y. 407). So a cause of action for specific performance of a contract may be joined with an action for damages for breach of the contract (56 N. Y. 12; 57 N. Y. 155; is Civ. Pro. 296). 6. Injuries to personal property. In Cleveland v. Barrows (59 Barb. 364) it was held that under this subdivision a cause of action for deceit in the sale of a canal-boat and horses might properly be joined with a claim for taking certain property from the boat and converting it, and on the strength of this case it was decided in Silver v. Holden (50 Super. Ct. 236), that a claim for damages for false representations might be joined with a claim for conversion of personal property. 7. Chattels with or without damages for the withholding thereof. Proceedings in actions in replevin are regulated by § 1689 et seq. 8. Upon claims against a trustee by virtue of a contract or by operation of law. Two causes of action arising out of a breach of trust by a testator may be included in an action against his executor brought by the surviving trustee (10 Abb. N. C. 67). A cause of action against a trustee of a manufacturing corporation for failure to file an annual report may be joined with one for making a false report (1 Hun 332). 9. Claims arising out of the same transaction or transactions connected with the same subject of action and not included within one of the foregoing subdivisions of this section. No general or comprehensive interpretation of the words, " same transaction or transactions connected with the same sub- ject of action," has been as yet attempted in any judicial opin- ion. Judge Comstock said in 17 N. Y. 604 that they were well chosen for the purpose intended, because they are so obscure and so general as to justify the interpretation which shall be found 158 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. most convenient and best calculated to promote the ends of justice. This is little more than turning the whole subject of joinder of causes of action over to the personal impressions of the judge before whom the matter is brought without resort to any guiding principle. Ch. J. Church says it is probable that in its primary purpose this provision was intended to apply to equitable actions which frequently embrace many complicated acts and transactions relating to the subject-matter of the action which it would be desirable to settle in a single contro- versy. The clause was not intended to overturn all distinc- tions in actions and rules of pleading. Wiles v. Suydam, 64 N. Y. 178. Under this subdivision it has been held that the committee of a lunatic might by an action alleging the insolvency of the lunatic bring in the various interests in his estate and ask that the extent of the lunatic's interests be ascertained and the validity and extent of liens on the property be settled. Holmes v. Abbott, 53 Hun 617. So in an action brought for the protection of a trust fund alleging maladministration, it was said that the cause of ac- tion consisted in the several violations and misappropriations which the trust fund had suffered in passing through the hands of the various defendants with which they had been more or less connected, and that the restpration and preservation of the trust fund was the primary and important subject-matter of the action (56 How. Pr. 458). The words of the section are considered in Lattin v. McCarty (41 N. Y. 112). But where the claims do not grow out of equitable rights or interests, but are purely at law, they have often been held to be properly united where they were thought to arise out of the same transaction. Thus trespass on land may be joined with conversion of personal property (5 Civ. Pro. 135); and breach of contract and injuries to property (4 Abb. Pr. 176) have been held to have been properly joined when arising out of the same transaction. It is proper to unite in one cause of action claims to recover money paid on several separate purchases of lottery tickets (73 N. Y. 473). But an action for trespass, or breaking into a house and opening a trunk, cannot be joined with an action on a covenant in a lease for quiet enjoyment, although the act which rendered the defendant liable in both actions was the same (56 N. Y. § I84.] MODE OF PLEADING. 1 59 332); and a claim against a stockholder upon his liability where the stock of the company has not been fully paid in, cannot be joined with a claim against the same person as trus- tee of the corporation for liability arising from failure to file an annual report. The first is said to be a cause of action in contract and the second for a penalty ( Wiles v. Snydam, 64 N. Y. 173), and claims on contract and tort, though they arise out of the same transaction, cannot be joined (40 Hun 60; 94 N.Y. 22). We consider next the general qualifications which must exist to permit the joinder of causes of action. These are: 1 st. That they are consistent with each other, 2d. That they affect all the parties to the action. This means parties in the same capacity. Thus a claim which accrued to the plaintiff personally and one which accrued to a deceased person whom plaintiff represents cannot be joined (20 Barb. 441); nor a cause of action against all the defendants and one against one or some of them severally (94 N.Y. 22; 16 Abb. Pr. 420); nor a cause of action against the defendant individually or as administrator and one against him as trustee (4 Sand. Ch. 31; 50 How. Pr. 178). An action against decedent's legal representatives to enforce a lien upon the real estate cannot be joined with an action against the heirs to charge decedent's land with payment of his. debts (7 Civ. Pro. 100). 3d. It must appear upon the face of the complaint that they do not require different places of trial. (See § 1815). § 184. Mode of pleading separate causes of action.— The formal and correct mode of introducing each separate cause of action is to number it. Thus, " I. For a first separate and distinct cause of action," and then set out all the allegations needful to make out the cause of action. Upon reaching the second cause of action, number it thus: " II. For a second sepa- rate and distinct cause of action." Thus continuing until all the causes of action which are to be joined in the complaint are stated. If the causes of action are not separately stated, but are min- gled and confused, the remedy is by motion to make the com- plaint more definite and certain, thus compelling the plaintiff to state the causes of action separately. You may not demur for this irregularity (38 N. Y. 21; 22 Hun 327). l6o PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. It is a rule of pleading that each cause of action and each defence separately stated in a pleading must be complete in itself, and cannot be aided by allegations in another cause of action in the same pleading to which it does not so refer as to make them in effect a part of itself (8 Abb. N. C. 382). § 185. Demand of judgment. — The plaintiff should in his complaint ask for such judgment as he believes himself entitled to upon the case made by the complaint. The prayer for judgment may be important, for, as we have seen, the Code provides that where there is no answer, the judgment shall not be more favorable to the plaintiff than that demanded in the complaint (§ 1207). Moreover, the prayer for judgment may be looked to as determining the character of the action and the nature of the cause of action set up. Thus, where all the allegations of the complaint are made for the purpose of procuring equitable relief, and where equitable relief alone is asked, the complaint cannot be sustained as one for legal redress on demurrer (35 Hun 281). The issue on a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action, is whether the complaint alleges facts sufficient to sustain the judgment demanded, not whether the facts would justify a judgment for other relief (52 Super. Ct. 439; 10 Daly 506). But where an answer is interposed the court may permit the plaintiff to take any judgment consistent with the case made by the complaint and embraced within the issues (§ 1207), there- fore a plaintiff will not be nonsuited because he has prayed for tDO much or too little or for any relief (90 N. Y. 372). But the plaintiff can only have a judgment consistent with the case made by the complaint. Hence, if a party brings an equitable action he must show himself entitled to equitable relief, and cannot recover upon proof of a legal cause of action, because such a judgment would not be within the case made by the complaint (28 N. Y. 508). So when he sues on tort, he cannot recover on proof of contract (87 N. Y. 128; 101 N. Y. 647). The relief to be given after answer is determined by the whole complaint and the issues. The prayer is then no longer controlling (109 N. Y. 202; 90 N. Y. 372). A court of equity will adapt its relief to the exigencies of the case. And a court of law will direct the jury as to what verdict they may give within the issues. §§ lS6, 187.J THE FORM OF THE ANSWER. l6l But in an action at law no greater damages can be recovered than are asked for in the complaint, although upon the trial the court may in its discretion permit an amendment increasing the claim for damages (37 Super. 395, affi'd 62 N. Y. 614). § 186. Interlocutory and final judgment. — Section 482 provides that in an action triable by the court without a jury the plaintiff may in a proper case demand an interlocutory judgment, and also a final judgment, distinguishing them clearly. This section is limited to equity suits. An interlocutory judgment is not defined. An illustration of such a j udgment might arise in a suit for an accounting where there was a defence that the plaintiff was not entitled to an account. That issue having been tried, the judgment to be entered if for the plaintiff would determine that he was entitled to an accounting and direct a reference to take the account, and that upon the coming in of the report a final judgment determining the rights of the parties be entered. THE ANSWER. The only pleading on the part of the defendant is either a demurrer or answer (§ 487). It will be convenient first in order to consider the answer. 1. The form of the answer ; 2. Denials, general and special ; 3. New matter; 4. Counterclaims; 5. Pleadings between co- defendants. § 187. The form of the answer. (Co. Civ. P. § 500.)— The answer of the defendant must contain — 1. A general or special denial of each material allegation of the complaint controverted by the defendant, or of any knowl- edge or information thereof sufficient to form a belief. 2. A statement of any new matter constituting a defence or counterclaim, in ordinary and concise language. The answer is usually introduced by the title of the action as in the summons. If the defendant appears and answers sepa- rately, the answer begins thus : The defendant B appearing herein and separately answering the complaint. If all the de- fendants answer by the same attorney and jointly, the intro- II [CH. VII. ductory words will run accordingly. Of course one defendant may answer and another may demur, or defendants may put in separate defences which are available to them, and for that purpose they may put in separate answers. A defendant may set forth in his answer as many defences or counterclaims, or both, as he has, whether they are such as were formerly denominated legal or equitable. Each defence or counterclaim must be separately stated and numbered, and "unless it is interposed as an answer to the entire complaint it must distinctly refer to the cause of action which it is intended to answer (§ 507). The same matter may constitute both a counterclaim and a defence, and may be pleaded in both ways. It is not necessary to repeat it. The usual mode is to introduce such matter with the words, " The defendant further answering by way of defence and counterclaim alleges," etc. Great nicety of form is not demanded by the Code practice, but it serves to make one's meaning clear and to add precision to thought to use words in their ordinary legal acceptation and follow familiar meihods unless there is reason for departing from them. It is well to note that matters occurring after the service of the complaint and before the answer is put in may be set up in the answer. 62 How. Pr. 363 ; Heckemami v. Young, 29 State R. 55. In the case last cited the action was against joint debt- ors ; one having defaulted, the plaintiff entered judgment against him; the other defendant then answered alleging the entry of judgment against his co-defendant and his consequent discharge; the defence was held good. See Candee v. Smith, 93 N. Y. 352. But matters occurring after the commencement of the action and issue joined can only be received upon and in support of a supplemental answer put in by leave of the court (65 Barb. 27). § 188. Several answers or counterclaims legal or equi- table allowed. — At common law a defendant could plead only one defence at a time. A violation of this rule rendered the answer or plea open to the charge of duplicity. This section abrogates the common-law rule. It is now said that " a defend- ant may put his defence upon distinct and even inconsistent grounds " (99 N. Y. 154). Separate defences should be separately pleaded, but when §§ 189, 19°.] EQUITABLE DEFENCES. 163 certain facts have been pleaded as a part of one defence, to avoid repetition, the statement may be referred to and incor- porated in another defence by reference, where it is done intel- ligibly and distinctly so as to avoid confusion. § 189. Equitable defences. — Equitable defences may now be pleaded in actions at law, and a resort to a cross action is not only unnecessary but improper under the Code. The leading case and one often cited is Dobsoti v. Pearce (12 N. Y. 156), which was an action at law upon a judgment recovered in this State. The defendant set up that the judg- ment was fraudulent, and that a decree of a court having jurisdiction of the person in Connecticut had so adjudged. The defence was held proper. The court said: "Under the head of equitable defences are included all matters which would before have authorized an application to the Court of Chancery for relief against a legal liability, but which at law could not have been pleaded in bar." Another instance of an equitable defence would be that a deed absolute on its face was a mortgage (15 N. Y. 379). An answer which pleads an equitable defence must allege the facts constituting it as fully and clearly as if it were relied on as a cause of action for affirmative relief in equity (68 N. Y. 528; 26 How. Pr. 350). As to the mode of trial of an equitable counterclaim in an action at law, see §974; Mackellar v. Rogers, 109 N. Y. 468; Colvillv. Chubb, 38 State R. 698; Bornv. Schrenkeisen, no N. Y. 55- § 190. Partial defences. — A partial defence may be set forth as described in the last section, but it must be expressly stated to be a partial defence to the entire complaint or as to one or more separate causes of action therein set forth. Upon a demurrer thereto the question is whether it is sufficient for that purpose. Matter tending only to mitigate or reduce dam- ages for the breach of a promise to marry or for a personal injury or an injury to property is a partial defence within the meaning of this section. Illustrations of partial defences are : part payment (8 How. Pr. 441); in an action for illegal levy, a subsequent legal levy on the same property (43 How. Pr. 5); matter showing want of 164 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII- malice or that defendant has a right to suppose that there was reasonable grounds for his conduct pleaded in mitigation of damage in an action for false imprisonment (93 N. Y. 515). § 191. Denials — Form of denials. — A denial of a material allegation of the complaint, or an allegation that the defendant has not sufficient knowledge or information to form a belief with respect to a material allegation of the complaint, raises issues of fact to be tried by a jury (§ 964). A general denial is a denial of all the allegations of the com- plaint; a specific denial is a denial of one or of each allegation separately (9 How. Pr. 246). The usual form of a general denial is, " The defendant denies each and every allegation of the complaint." An answer denying the complaint and each and every allegation therein contained is a good denial (26 State R. 60). Every material allegation of the complaint not contro- verted by the answer is to be taken as true (§522). If some of the material allegations of the complaint are true, the defendant may either specifically admit them or make no answer to them, in which case they are taken as admitted. Immaterial allegations need not be answered, and by not answering them no admission is made. But the pleader should be cautious in ignoring an allegation as immaterial. Some advantage may be sought and gained from a neglect to answer even an immaterial allegation. And when the plaintiff alleges more than is necessary to maintain his action, and yet the matters alleged are material and have not been stricken out on motion, they will be deemed admitted if not denied (38 Hun 236). If the answer admits certain allegations of the complaint and then denies "each and every allegation of the complaint not hereinabove admitted or controverted," that is a good denial when the facts admitted or controverted are clearly specified and there is no doubt or confusion as to the application of the denial (101 N. Y. 348; 35 State R. 567). A denial of each and every material allegation in the complaint contrary to or inconsistent with any of the allegations in the foregoing answers not heretofore admitted, ignored, or denied, is too indefinite to be allowed to stand (5 Abb. N. C. 105). Clark v. Dillon (97 N. Y. 370) is an instructive case. The complaint alleged that the defendant made an excavation in a § I92.J PROOF UNDER GENERAL DENIAL. 165 public street and left the same unprotected, and the plaintiff's wife fell into the excavation and was injured. The answer alleged : (1), contributory negligence ; (2), compromise and settlement of the claim; and (3), a denial of each and every other allegation in said complaint contained not hereinbefore specifically "admitted, qualified, or denied." It was held that this answer did not put in issue the averment that the defend- ant had made the excavation and that it was in a public street. This case turned largely upon the use of the word "qualified." In a case subsequently before the Court of Appeals, it was held that a denial in the answer of each and every allegation of the complaint not hereinabove admitted or controverted was a good general denial. Griffin v. L. I. R. Co., 101 N. Y. 348. A denial of the allegations contained within certain folios of the complaint has been criticised as improper (no N. Y. 623; 93 N. Y. 515), but has been held to raise an issue (9 Abb. 39). A denial upon information and belief has been held good by the Court of Appeals (no N. Y. 150, 153), setting at rest a ques- tion upon which there was a conflict in the courts below (39 Hun 144; 3 s Hun 143). It has been held in a number of cases that a statement in the answer that the defendant says that he denies each and every allegation in the complaint is not a denial, but it seems that this is a good general denial (74 N. Y. 61). It is not a good form. A denial amounting to a negative pregnant is an admission of the allegation in reference to which it is made (41 Super Ct. 122). A negative pregnant is an evasive answer to an allega- tion by answering it literally without answering the substance of it. As a complaint that the plaintiff loaned the defendant $7,050 and a denial that plaintiff loaned defendant the sum stated in the complaint, which might be true, and yet the real sum loaned might have been $7,049. A number of instances in which such denials have been held bad are to be found in the reports (16 How. Pr. 467; 7 How. Pr. 430; 1 Abb. Pr. 187); the principle being, that a general denial should not turn upon an immaterial allegation, such as time, place, or amount (1 Abb. Pr. 187). § 192. Proof under general denial. — Under a general denial defendant may controvert by evidence everything which l66 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. the plaintiff is bound in the first instance to prove to make out his cause of action (101 N. Y. 348). Thus in an action for con- version of personal property a general denial puts in issue the plaintiff's title and right cf possession, and the defendant in disproof of the plaintiff's cate may show title in a third person (111 N. Y. 560). So when the complaint contains an allegation of non-payment as a necessary or material fact to constitute a cause of action, proof of payment is admissible under a gen- eral denial (97 N. Y. 329), but as a general rule the defence of payment is inadmissible under a general denial (16 N. Y. 297, 3°4)- The rule is, that facts which may be proved under a denial are those which show the plaintiff's averments to be untrue, while facts which are consistent with their truth, but show that he has no cause of action, are new matter to be pleaded. A striking illustration is found in the instance of proof by the defendant of want of consideration in a contract sued upon. If the contract is under seal, consideration is presumed and proof of want of consideration cannot be received under a gen- eral denial, but the defence must be set up (56 N. Y. 673). If, on the other hand, the complaint sets up a contract made upon a stated consideration, the plaintiff must prove the considera- tion, while the defendant may disprove the plaintiff's allegation by showing the want of consideration under a general denial. In slander the defendant may prove the plaintiff's general bad character under a general denial (8 How. Pr. 434), and in gen- eral any proof in mitigation of damages is admissible under a general denial. § 193, New matter.— New matter constituting a defence or counterclaim must be pleaded in order that proof of such mat- ter should be received upon the trial. The scope of our studies does not permit us to enter upon these defences except as to the matter of counterclaim. It should, however, be observed that since the Code requires that actions should be brought in the name of the assignee of a cause of action, as a rule all defences which would have been available if the action had been brought by the assignor are available to the defendant as against the assignee. The leading case is Bush v. Lathrop (22 N. Y. 535), where it was decided that the equities existing between the assignor § I94-J COUNTERCLAIM. 167 and the assignee of a chose in action not negotiable attend the title transferred to a subsequent assignee for value and without notice. In that cause a bond and mortgage given to secure the payment of the sum of $1,400 were assigned by the owner, Noble, to one Preston as collateral security for the pay- ment of the sum of $268. Preston assigned the bond and mort- gage to Smith and Newton for $1,475, ar, d Smith and Newton assigned it for full value to defendant, who took it with no knowledge of the fact that the transfer from Noble to Preston was conditional. In an action brought by Noble's adminis- trator to redeem, it was held that the defendant stood only in the position of his assignor and had only a conditional title, and the plaintiff must therefore prevail. The doctrine of this case stands in full force, but there has been engrafted upon it an exception in the case of certain non- negotiable instruments, such as stock certificates, where the owner has clothed the transferee not only with the indicia of ownership, but also with an apparent authority to convey. Thus the title to stock in a corporation upon the certificate for which the owner has executed a power of attorney to transfer the shares of stock upon the books of the corporation, and which he has transferred merely as a pledge, may be transfer- red by the pledgee for value to an innocent purchaser, and the true owner will then be held to be estopped from setting up the equity between himself and the original transferee. McNeil v. Tenth Nat. Bank, 46 N. Y. 325 ; 53 N. Y. 41 ; 65 N. Y. in, 123 ; 104 N. Y. 108. § 194. Counterclaim. (Co. Civ. P. § 501.) — The counter- claim referred to in the section already considered must tend in some way to diminish or defeat the plaintiff's recovery, and must be one of the following causes of action against the plains tiff, 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 transac- tion set forth in the complaint as the foundation of the plain- tiff's claim or connected with the subject of the action. 2. In an action on contract any other cause of action on con- tract existing at the commencement of the action (§ 501). 1 68 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. We may present the elements of this section as follows: A counterclaim must — i. Tend in some way to diminish or defeat the plaintiff's recovery. 2. Be a cause of action: i. Either (i) arising out of the contract, or (2) the trans- action set forth in the complaint or (3) connected with the subject of the action. 2. Or in an action on contract or any other cause of action on contract existing at the commencement of the action. 3. Against the plaintiff, or in a proper case against his assignor and in favor of defendant. § 195. A counterclaim must tend in some way to dimin- ish or defeat the plaintiff's recovery. (Co. Civ. P. § 501.) — This restrains the defendant from setting up an independent claim which neither decreases nor defeats the plaintiff's re- covery, and so converting the action into one purely for affirm- ative relief on behalf of defendant. Thus, in an action brought to restrain the defendant from wrongfully diverting a watercourse, the defendant set up by way of counterclaim that the plaintiff had wrongfully stored and threatened to store logs in the bed of the river and thus obstruct the natural flow of the water to the defendant's dam- age ; it was held that this was not a proper counterclaim because it in no way tended to defeat or diminish the recovery by the plaintiff. Grange v. Gilbert, 44 Hun 9 ; and see Nat. Fire Ins. Co. v. McKay, 21 N. Y. 191. § 196. The counterclaim must be a cause of action. (Co. Civ. P. § 501.) — This means a cause of action upon which the defendant could sue the plaintiff (88 N. Y. 258; 51 Hun 227). It must also be a cause of action of which the court in which the action is brought has jurisdiction {Ibid.). The counterclaim must be against all the plaintiffs in the action. If others than the plaintiffs are jointly liable to defendant on the claim, it cannot be used as a counterclaim, nor can a defend- ant sued separately set up by way of counterclaim a cause of action in favor of himself and others not parties jointly (87 N. Y. 501). If the action is one in which a several judgment can § I97-] THE CAUSE OF ACTION. 169 be entered against the defendants, either of them may set up a counterclaim in his favor (59 N. Y. 533), and where three defend- ants sued with others upon a contract alleged that the contract was made exclusively with them and set up a counterclaim for breach of the contract, it was held to have been properly inter- posed (32 Hun 162). But a surety cannoc avail himself of an independent cause of action in favor of his principal against the plaintiff as a counterclaim when sued upon his own obligation (55 N. Y. 619). Although the statute does not in the first subdivision state in words that the counterclaim must belong to the defendants at the time of the commencement of the action, yet that is the rule (44 Hun 342). § 197. The cause of action must be one arising out of the contract or transaction set forth in the complaint as the foundation of the action or connected with the subject of the action. (Co. Civ. P. § 501.)— Here are three cases : the cause of action must be one arising out of (1) the contract set forth in the complaint as the foundation of the action, or (2) the transaction set forth in the complaint or (3) connected with the subject of the action. 1. A cause of action arising out of the contract set forth in the complaint as the foundation of the action. Thus, if the plaintiff is liable to the defendant in respect to the same con- tract set forth in the complaint, the latter may present his demand by way of counterclaim. This covers what wafS, known under the former practice as recoupment, which was the right to cut down or reduce the plain- tiff's claim by any damages which the defendant had sustained by reason of the failure of the plaintiff to perform the contract sued upon. The provision of the Code extends beyond recoup- ment, inasmuch as it permits the interposition of equitable claims. A few illustrations will make the cases provided for by this first subdivision clear. Thus, in an action to recover rent the lessee has a right to set up as a counterclaim damages arising from a breach of an agreement in the lease on the part of the lessors to keep the premises in repair. Cook v. Soule, 56 N. Y. 420. So, where the buyer of goods brought an action against the vendor for breach of contract in not delivering all the 170 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. goods bought, the vendor was permitted to recoup the unpaid purchase price of the goods delivered (52 Barb. 132). The 2d class in the 1st subdivision is stated to be casuse of action arising out of the transaction set forth in the complaint as the foundation of the action. Just what is meant by transactions as distinguished from contracts is not quite clear. The reported cases appear to have arisen under the last class in the subdivision, to wit, a cause of action connected with the subject of the action. The subject of the action is said to be the cause of action set out in the complaint (40 N. Y. Super. Ct. 100). The words probably have a wider signification and embrace the subject-matter of the action. In Glen &• Hall Mfg. Co. -v. Hall (61 N. Y. 226, 236), Dwight, C, formulated a defini- tion. He said: "The subject of an action is either property (as illustrated by a real action) or a violated right." Adjudged cases are the only guides to the meaning of words, and their final construction has probably not been reached. In the case last cited the action was brought by one claiming the right to a trade name to restrain its invasion by defendant. The de- fendant counterclaimed, asserting his own exclusive right to the use of the name, and asking that the plaintiff be restrained from its use; it was held that the counterclaim was proper, as being a cause of action connected with the subject of the action. In Carpenter v. Manhattan Life In$- Co. (93 N. Y. 552), plaintiff's action was for damages for the taking and conversion of a quan- tity of wood ; the defendant counterclaimed, alleging that he was the holder of a second mortgage upon the premises from which the wood was taken, and that plaintiff had wrongfully cut the wood from the land, thereby committing waste to defendant's damage. The counterclaim was sustained as connected with the subject of the action. The court said: "Here it is suffi- ciently accurate to say that the subject of the action was the wood wrongfully taken by the defendant, and the counterclaim was for damages sustained by the defendant in the wrongful impairment of its security by the severance of the same wood from the land and thus diminishing the value of the land by the value of the wood." So in Thomson v. Sanders (118 N. Y. 252), the plaintiff sued upon a bond of indemnity; the defend- ant alleged by way of counterclaim that he was induced to give the bond of indemnity by false and fraudulent representations .§ I98.] COUNTERCLAIM. 171 of the plaintiff, and that he had in consequence sustained dam- ages. It was held that the defendant's counterclaim arose out of the transaction or contract of which the bond was the prod- uct, and the making of it constituted a part of the subject-mat- ter of the action. Other illustrations are Cass v. Higenbotam (100 N. Y. 248); Lerchev. Brasher (37 Hun 385); Barnes v. Gilmore (6 Civ. Pro. 286). An interesting case is Maders v. Lawrence (49 Hun 360), where plaintiff sued on a promissory note payable six months after date; the defendant counterclaimed that the note was given on an exchange of horses, and that plaintiff had war- ranted his horse and counterclaimed on a breach of the war- ranty; the plaintiff replied that more than six years had elapsed since the making of the warranty, which was broken, if at all, when made, but that the right of action on the note did not accrue until six months later, and was therefore not barred by the statute of limitation. It was held that the plaintiff by suing on the note invited any valid defence which the defend- ant had arising from the transaction in which the note origi- nated, and that the claim on the guarantee was available as a counterclaim, at least to the extent of the note. In an action founded upon tort the defendant can counter- claim only upon a cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim or connected with the subject of the action. And the counterclaim may be a cause of action on tort, provided that it be thus connected with the plaintiff's claim, but a distinct and inde- pendent cause of action for tort cannot be set up as a counter- claim in an action upon a different tort (132 N. Y. 472; 14 State R. 97). It has been held that, in an action founded upon tort the defendant cannot counterclaim upon a cause of action in contract C84 N. Y. 272; 89 N. Y. 498), though such a counter- claim is not excluded by the language of the Code, if it can be shown to arise out of the tort sued upon or to be connected with the subject of the action. §198. Counterclaim under subdivision 2 of §501. (Co. Civ. P. §501) — "In an action on contract, any other cause of action on contract existing at the commencement of the action." This includes what was known before the Code as setoff, although it is broader than the statutory setoff. Under 172 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. this subdivision a counterclaim may arise upon a contract express or implied (26 N. Y. 298) and for liquidated or unliq- uidated damages (34 Barb. 447). In an action to foreclose a mortgage, when a deficiency judgment is asked against the obligor upon the bond he may set up as a counterclaim a cause of action on contract which he had against the plaintiff when the action was begun (51 N. Y. 555). Where goods have been sold with a warranty the purchaser need not return the goods, but may retain and use them and rely upon the war- ranty by a direct action for damages or by way of counter- claim or recoupment (57 N. Y. 16; 99 N. Y. 517; 101 N. Y. 616). An implied contract arising on a conversion by waiving the tort, may be used as a counterclaim in an action on contract (50 N. Y. 17). Other and numerous illustrations of the appli- cation of the subdivision may be found. § 199. Rules in reference to actions upon assigned claims. (Co. Civ. P. § 502 ) — The Code expressly provides that if the action is founded upon a contract which has been assigned, other than a negotiable promissory note or bill of exchange, a demand existing against the party thereto or an assignee of the contract at the time of the assignment thereof and belonging to the defendant in good faith before notice of the assignment, must be allowed as a counterclaim to the amount of the plaintiff's demand, if it might have been so allowed against the party or the assignee while the contract belonged to him (§ 502). If the action is upon a promissory note assigned after it became due, the same rule applies (§502). The right of setoff did not exist at common law. It was created by the English statutes 2 Geo. II., ch. 22, 8 Geo. II., ch. 24, from which it was incorporated into the Revised Laws (1 R. L. 515) and thence into the Revised Statutes (2 R. S. 352). This section permits the defendant to set up as a counterclaim a claim against plaintiff which he had acquired and held at the commencement of the action. It does not permit a defendant after he has been sued to buy up a claim against the plaintiff and use it as a counterclaim (44 Hun 342; 11 Civ. Pro. 205), and the pleading must show that the defendant acquired the demand set up as a counterclaim before commencement of the action (44 Hun 342). The meaning of this provision may perhaps be made clearer § 200.] EQUITABLE SETOFF. 1 73 by illustration. If B is indebted on contract to A, and A is similarly indebted to C, B before he is sued may acquire C's claim against A and may then counterclaim it against A. If A assigns his claim against B to D after B has acquired C's claim against A, D will stand in no better position than A. D will take A's claim subject to B's right to counterclaim against D the claim which he had purchased from C, and further he may counterclaim any claim on contract which he has acquired against D before suit brought, but B cannot counterclaim against D a claim against A acquired by him after D has given B notice of the assignment of A's claim to him. We may go a step further : If D assigns to E the claim against B which he has purchased from A, and E sues B on such claim, B may counterclaim on a contract debt due from A which B has pur- chased, and also a contract debt due from D which he has pur- chased before notice of the assignment to D and also a debt due from E which he has purchased before suit brought. These cases are all subject to the general rule, that in order that claims may be set off they must both have been due and payable at the same time and before the change in ownership of either. Taylor v. The Mayor, 82 N. Y. 10. This case was decided on the rules existing previous to the Code of Civil Procedure, but those rules are said to remain in this particular substantially unchanged (10 Civ. Pro. 85, and see 38 Hun 581). But if the defendant acquires a claim against the plaintiff's assignor after assignment, but before notice, he may set it off if otherwise it was available as a counterclaim. In Faulknor v. Swart (55 Hun 261, 265) the court said: "We think the lan- guage of the Code is plain on this point. And it is consistent with good sense. If an assignee of a claim desires to protect himself against the purchase by the debtor of claims against the assignor, he has only to give notice of the assignment to the debtor. If he neglects to do this, then it is reasonable to permit the debtor to purchase in good faith any valid claim against his original creditor and to use it as a counterclaim when sued." But see Lowell v. Lane (33 Barb. 292). It was held under the language of the corresponding section of the Code of Procedure, that unliquidated claims could not be set off (57 N. Y. 103). § 200. Equitable setoff. — It remains to be observed that unliquidated and unmatured claims, though not within the 174 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. statute of setoff, will in equity be set off against each other if from the situation of the parties justice cannot otherwise be done. Insolvency of one of the parties is a sufficient ground for the allowance. Davidson v. Alfaro, 80 N. Y. 660 ; 85 N. Y. 580; Littlefield v. Albany Co. Bank, 97 N. Y. 581. An action may be maintained on principles of equity for a decree setting off such claims. See Rothschild v. Mack, 115 N. Y. 1; 119 N. Y. 54. The rules governing the doctrine of equitable setoff de- pend upon principles of equity, and are not circumscribed by the statutory provisions of the Code. § 201. Counterclaim in actions brought by plaintiff as trustee or for the benefit of another. (Co. Civ. P. § 502.) — 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 con- tract upon which it is founded, a demand against the plaintiff shall not be allowed as a counterclaim, but so much of a demand existing against a person whom he represents or for whose benefit the action is brought as will satisfy the plaintiff's demand must be allowed as a counterclaim, if it might have been so allowed in an action brought by the person beneficially interested (§ 502). In an action against an executor or administrator or other person sued in a representative capacity, the defendant may set forth as a counterclaim a demand belonging to the dece- dent or other person whom he represents, where the person so represented would have been entitled to set off the same in an action against him (§ 505). In an action brought by an executor or administrator in his representative capacity, a demand against the decedent belong- ing at the time of his death to the defendant may be set forth by the defendant as a counterclaim 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 when it could be issued upon a judgment in an action against the executor or administrator (§ 506). The theory of these sections is similar. The purpose mani- festly is to allow counterclaims in favor of and against repre- sentatives charging the estate or party represented whenever § 202.] COUNTERCLAIM, WHEN AND HOW PLEADED. 1 75 such counterclaim would have been allowable against the party represented. Accordingly when a receiver of a corporation sues upon a debt due the corporation, the defendant may counterclaim if he might have done so had the corporation been plaintiff. Pendergrast v. Greenfield, 40 Hun 494. And it has been held that to prevent circuity of action, a defendant who has rendered services to a receiver may counterclaim the value of such service in an action brought by the receiver in his rep- resentative capacity. Davisv. Stover, 58 N. Y. 473. It would seem, however, that if the defendant had brought suit for his services the action would have been against the receiver personally. Austin v. Munro, 47 N. Y. 360. This decision would seem to violate one of the canons respecting counterclaim, since the defendant's right of action was against plaintiff in a different capacity from that in which he brought the action. In an action by an executor upon a cause of action which arose after the death of the decedent, the defendant cannot set up as a counterclaim a debt from decedent to him. Thompson v. Whit- marsh, 100 N. Y. 35. For the same reason, in an action against the executor personally for funeral expenses incurred by him, he cannot counterclaim a debt due from plaintiff to the dece- dent {Blood v. Kane, 52 Hun 225), but the converse of this propo- sition was held in Patterson v. Patterson, 59 N. Y. 574. A demand to be set off in an action by an executor must have been due and payable from the decedent in his lifetime {Jordan v. 6 1 . cV L. Bk., 74 N. Y. 467), where a bank undertook to hold a balance on deposit to set off a debt not due. § 202. Counterclaim, when and how pleaded, and effect of pleading.— It is to be observed that a defendant is not com- pelled to set up a cause of action which he has against the plaintiff by counterclaim. He may, if he prefer, bring^an inde- pendent action upon it (80 N. Y. 413). If he purposes to set up a counterclaim he must distinguish it as such, because, as we have seen, the same matter may sometimes constitute both a defence and a counterclaim. If the defendant fails to make it appear by his pleading that he intends to plead the matter as a counterclaim, no reply will be necessary (75 N. Y. 511). He may interpose as many counterclaims as he has (§ 507). In an action upon contract, when the complaint demands judgment for a sum of money only, if the defendant by his 176 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. answer does not deny the plaintiff's claim, but sets up a coun- terclaim amounting to less than the plaintiff's claim, the plain- tiff, upon filing with the clerk an admission of the counter- claim, may take judgment for the excess as upon a default for want of an answer. The admission must be made a part of the judgment roll (§512). When a counterclaim is established which equals the plaintiff's demand, the judgment must be in favor of the defendant. Where it is less than the plaintiff's demand, the plaintiff must have judgment for the residue only. When it exceeds the plaintiff's demand, the defendant must have judgment for the excess, or so much thereof as is due from the plaintiff. When 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 (§503). If the defendant asks sim- ply to defeat the plaintiff's cause of action, he need not insert in the answer any prayer for relief. But when he deems him- self entitled to an affirmative judgment against the plaintiff by reason of a counterclaim interposed by him, he must demand the judgment in his answer (§ 509). §203. Pleading between co-defendants. (Co. Civ. P. § 521.) — When the judgment may determine the ultimate rights of two or more defendants as between themselves, a defendant who requires such a determination must demand it in his answer, and must, at least twenty days before the trial, serve a copy of his answer upon the attorney for each of the defend- ants to be affected by the determination, and personally, or as the court or judge may direct, upon defendants so to be affected who have not duly appeared therein by attorney. The con- troversy between the defendants shall not delay a judgment to which the plaintiff is entitled unless the court otherwise directs. This provision confers- no new powers upon the court in equity. Albany City Savings Inst. v. Burdick, 87 N. Y. 40. It is simply confirmatory of the pre-existing practice in chancery (26 Hun 621). The relief which the defendants may have as against each other must be based upon the facts involved in the litiga- tion of the plaintiff's claim, and as part of the adjustment of that claim, and not upon claims with which the plaintiff has nothing to do and which are properly the subject of an inde- §§204,205.] WHEN A REPLY IS NEEDED. 1 77 pendent litigation between such defendants (44 N. Y. 565). The section thus appears to be applicable only in equity when the rights of all the parties in the subject-matter can be adjusted and determined. REPLY. When the answer contains a counterclaim, the plaintiff, if he does not demur, may reply to the counterclaim. The reply must contain a general or special denial of each material alle- gation of the counterclaim controverted by the plaintiff, or of any knowledge or information thereof sufficient to form a belief ; and it may set forth in ordinary and concise language without repetition new matter not inconsistent with the com- plaint constituting a defence to the counterclaim. § 204. When a reply is needed. (Co. Civ. P. § 514.) — The Code requires a reply to an answer only where a counter- claim is set up (32 State R. 63). And the question whether matter is pleaded as a counterclaim depends upon whether it is described as such (Acer v. Hotchkiss, 97 N. Y. 395, 408 ; 75 N. Y. 511), and this is so though the matter alleged technically constitutes a counterclaim (32 State R. 918). § 205. What the reply may contain. (Co. Civ. P. §514.) — (1). A general or special denial as to the pleading of which the rules are the same as apply to answers. (2). New matter. If matter is set up in a reply which does not constitute a de- fence to the counterclaim, defendant may demur to reply (53 Hun 350). A reply may contain two or more distinct avoidances of the same defence or counterclaim, but they must be separately stated and numbered (§ 517). The plaintiff may join in the same reply a denial of the counterclaim and new matter in avoidance of it (21 Abb. N. C. 136). But he cannot set up a new cause of action against defendant by way of reply. Cohnv. Husson, 66 How. Pr. 150. Plaintiff may not set up a counterclaim in his reply and so seek to recover on the claim set out in the complaint and also on the claim set out in the reply. 12 178 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. §206. Reply required by court. (Co. Civ. P. §516.) — Where an answer contains new matter constituting a defence by way of avoidance, the court may in its discretion on the defendant's application direct the plaintiff to reply to the new matter. In that case the reply and proceedings upon failure to reply are subject to the same rules as in the case of a counterclaim (§ 516). An allegation of new matter in the answer to which a reply is not required, or of new matter in a reply, is to be deemed controverted by the adverse party by traverse or avoidance, as the case requires (§ 522). The following cases may arise : (1). If the answer contains matter pleaded as a counterclaim a reply is necessary. (2). If the answer contains new matter which is not pleaded as a counterclaim, the defendant may apply to the court to require the plaintiff to reply to such new matter, and if the motion is granted a reply must be served* (3). If the new matter is not pleaded as a counterclaim, and no reply is required by the court, the allegation of new matter in the answer is to be deemed controverted. In the latter case, the plaintiff has the benefit of every possible answer to the defence made by way of new matter as though such defence were alleged in the most perfect manner. For that purpose evidence admissible under the principles of either law or equity takes the place of plead- ing (78 N. Y. 462). It is difficult to derive from the cases any rule as to when the court will require a reply to new matter. The court has declined to require the plaintiff to reply to the defence of the statute of limitation (29 State R. 409), and to new matter pleaded by way of justification (55 Hun 254). But it was required in an action for damages for causing death where the answer set up a previous adjudication, and that the action was not brought within the time limited by the act (30 State R. 532). So, where the defendant denied his liability as gen- eral partner, claiming to have been a special, plaintiff was required to reply to raise the issue as to what violation of the statute for organizing limited partnership there had been which rendered defendant liable as a general partner (21 Abb. N.C. 61). § 207. Effect of failure to reply. (Co. Civ. P. § 515.) — If the plaintiff fails to reply or demur to the counterclaim, the §208.] WHEN DEMURRER MAY BE INTERPOSED. 1 79 defendant may apply upon notice for judgment thereon ; and if the case requires it, a reference may be ordered or a writ of inquiry may be issued as prescribed by chap, n of this act, when the plaintiff applies for judgment (§ 515). A defendant waives the right to a reply by going to trial of the issues raised by the counterclaim without raising the point that no reply was served (74 N. Y. 467). Each material allegation of new matter in an answer not con- troverted by a reply where a reply is required, must for the pur- poses of the action be taken as true (§ 522). But if defendant does not take advantage of that admission and attempts to make proof of the facts set up in his counterclaim he waives the ad- mission, and if the facts proved fail to show that the counterclaim was a proper setoff it will not be allowed (53 How. Pr. 68). DEMURRER. § 208. When demurrer may be interposed. — The plead- ings on the part of the defendant are, as we have seen, either an answer or a demurrer (§ 487). The defendant may demur to the whole complaint or to one or more separate causes of action stated therein. In the latter case he may answer the causes of action not demurred to (§492)- The plaintiff may demur to a counterclaim or defence consist- ing of new matter on the ground that it is insufficient in law upon the face thereof (§ 494). He may also demur to a coun- terclaim upon the grounds stated in §495. The defendant may also demur to a reply or to a separate traverse to or avoidance of a defence or counterclaim contained in a reply on the ground that it is insufficient in law upon the face thereof (§ 493). We thus see that the office of the demurrer is to raise the objection to the legal sufficiency of a pleading. An issue joined by demurrer is an issue of law to be tried by the court at Special Term (§ 964). A general demurrer at common law was drawn up as follows: "The said defendant (or plaintiff) by , his attorney, says that the declaration (or plea) is not sufficient in law." A special demurrer brought up only those matters of form which were definitely stated in the demurrer. Special demurrers have no l8o PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. place in our system of pleading (83 N. Y. 23). A demurrer can now be taken only for one of the specific causes mentioned in the sections of the Code. § 209. General rules as to demurrer. — 1st. The ground of objection raised by the demurrer must appear upon the face of the pleading demurred to. 2d. The demurrer must distinctly specify the objection to the complaint. The objection can be taken in the language of the statute only on the grounds speciSed in 1st, 2d, 4th, and 8th subdivisions of § 488. In the other cases the demurrer must point out specifically the particular defect relied on (§49°)- 3d. A demurrable defect in one cause of action or defence is not cured by an allegation in another cause of action or defence unless connected by appropriate references (88 N. Y. 258). 4th. A demurrer admits all the material facts alleged in the cause of action to which it is taken. It admits the facts, however, only for the purpose of calling in question their legal efficacy. It says, " even if these facts are true, they are not sufficient to entitle you in this court to the relief demanded." It does not admit a conclusion of law nor an immaterial averment, and it is not such an admission of the fact as to make the admission evidence against the party demurring in the same or in any other action, except while the demurrer stands. See Cutler v. Wright, 22 N. Y. 472. 5th. A demurrer opens the whole record, and judgment is given against the party whose pleadings first appear to be insufficient in substance (32 N. Y. 397; 16 Civ. Pro. 398). But a defect in a complaint objected to by defendant on demurrer to the answer is cured by an admission in the answer covering the defect (15 N. Y. 327, 331; 13 N. Y. 83). 6th A demurrer must be sustained in full to the whole extent to which it is applied, or not at all. That is, it cannot be good in part and bad in part. As when a complaint contains several causes of action a general demurrer for insufficiency will not lie if any of the causes of action are good (82 N. Y. 543). 7th. When any of the objections enumerated in §488 are not taken either by demurrer or answer, the defendant is deemed §2IO.] DEMURRER TO THE COMPLAINT. l8l to have waived it, except the objection to the jurisdiction of the court or the objection that the complaint does not state facts sufficient to constitute a cause of action (§499). This means that when any of the objections except the two specified appear on the face of the complaint and are not taken by demurrer, they are waived (37 N. Y. 648, 651). If they do not appear upon the face of the complaint, they may be taken by answer. § 210. Demurrer to the complaint. — There are eight grounds of demurrer specified in §488 which may be taken to the complaint. The defendant may join any of the grounds of demurrer. These grounds of demurrer are as follows: 1st. That the court has not jurisdiction of the defendant. 2d. That the court has not jurisdiction of the subject of the action. 3d. That the plaintiff has not legal capacity to sue. 4th. That there is another action pending between the same parties for the same cause. 5th. That there is a misjoinder of parties plaintiff. 6th. That there is a defect of parties plaintiff or defendant. 7th. That causes of action have been improperly united. 8th. That the complaint does not state facts sufficient to con- stitute a cause of action. 1 st. That the court has not jurisdiction of the person of the defendant. The demurrer upon this ground may be stated in the lan- guage of the subdivision. This does not mean that the court has not acquired jurisdic- tion of defendant by the proper service of process or appear- ance. It means that the court has no jurisdiction to compel the defendant to respond to its process (8 Barb. 541). Thus, where the complaint fails to show facts conferring jurisdiction to render judgment against a foreign corporation, a demurrer upon this ground will be proper (16 Abb. N. S. 249 ; 35 State R. 129), and defendant by appearing and interposing such a demurrer does not subject himself to the jurisdiction of the court (Ibid.). 2d. That the court has not jurisdiction of the subject of the action. 182 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. This objection also may be taken in the language of the statute. An illustration of the application of this subdivision will be found in Dodge v. Colby (108 N. Y. 445), where one cause of action in a complaint was for trespass upon lands situated in another State. It was held to be too well settled to admit of dispute that the courts of this State have no jurisdiction of actions for trespass upon lands situated in other States (citing 80 N. Y. 408; 88 N. Y. 258). In the New York Superior City Courts, although their juris- diction is special and limited, the jurisdictional facts need not be alleged, but are presumed (52 Super. Ct. 179). 3d. That the plaintiff has not legal capacity to sue. This objection must be taken by pointing out specifically the particular in which the plaintiff is incapacitated. The absence of capacity must appear in the complaint (40 N. Y. 410). If the objection is not taken either by demurrer or answer, it is waived (122 N. Y. 631). Thus, where the complaint shows that the plaintiff is a foreign executor (18 Abb. 191), or where the plaintiff suing as administrator fails to show that he has been appointed administrator of the estate of the intestate (47 Hun 281), the objection should be taken under this subdivision. And the question whether a general guardian of an infant can maintain an action in his own name for injury to his ward's estate must be raised by demurrer upon the ground of want of capacity, or the defect will be waived (114 N. Y. 359). 4th. That there is another action pending between the same parties for the same cause. This objection may be stated in the language of the statute. If this defence exists, but does not appear on the face of the complaint, it must be raised by answer. But the pendency of another action in the U. S. Courts or in those of another State is neither ground of demurrer nor answer (57 How. Pr. 390). Where the fact of the pendency of another action appears upon the face of the complaint, it can be taken only by demur- rer; if not so taken, it is waived and cannot be raised by answer (14 Civ. Pro. 106). 5th. That there is a misjoinder of parties plaintiff. The grounds of this objection must be stated specifically in the demurrer. It is observed that this objection to parties is limited to the §2IO.] DEMURRER TO THE COMPLAINT. 183 plaintiff. It is no ground of demurrer that there are too many- defendants. A demurrer on this ground is properly taken where it appears upon the face of the complaint that one plaintiff has no interest with the others in the cause of action stated (33 Hun 419). 6th. That there is a defect of parties plaintiff or defendant. The particular defect relied on must be pointed out by the demurrer, which should specify the name of the party who should be joined (41 Hun 571, 572). The defect is only a deficiency and not an excess of parties, either plaintiff or defendant. It calls up the legal question whether there is an omission of a necessary party. The objec- tion must appear on the face of the pleading, and if it does and a demurrer is not interposed, the objection is waived (119 N. Y. 356). There is a presumption that the party not joined and whose presence is necessary, is alive unless something to the contrary appears {Ibid.). An illustration of a proper demurrer for defect of parties would arise in an action by A vs. B in which the complaint was upon a contract obligation made by B with A and C jointly. B might demur upon the ground that there was a defect of parties plaintiff, in that C should have been joined with A as a plaintiff. So in an action against C on a lia- bility shown to be joint as against C and D, C may demur for defect of parties defendant, in that D is not joined as a defendant. And generally, whenever parties are necessary under the rules we have heretofore considered in reference to parties, and there is an absence of such necessary party, a demurrer will lie, subject, however, to the rule that it must appear that the party demurring has an interest in having the omitted party joined (41 Hun 571). 7th. That causes of action have been improperly united. The particular defect relied upon must be pointed out spe- cifically, and if the objection appears upon the face of the complaint and is not taken by demurrer, it is waived (41 Hun 57i). If causes of action are improperly joined, a demurrer goes to the whole complaint and it must be dismissed, though each cause of action separately be good on demurrer. And when the causes of action are misjoined because they do not affect 1 84 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. all the parties, any defendant may demur, although a good cause of action is stated against him (94 N. Y. 22). Though the complaint may contain several causes of action which are properly joined, yet if one is improperly united the complaint is demurrable (15 Civ. Pro. 296). A demurrer does not lie because the separate causes of action are not properly stated and numbered, nor does the commingling of several causes of action in one count prevent a demurrer to the misjoinder of causes of action (29 Barb. 391; 15 Civ. Pro. 296). 8th. That the complaint does not state facts sufficient to con- stitute a cause of action. This may be pleaded in the words of the statute, and though no objection is taken by demurrer or answer, it may be taken in the first instance at the trial. Thus, upon the opening of the case the defendant's counsel may move that the complaint be dismissed on the ground that it states no cause of action, and that is not an uncommon practice. A demurrer to a complaint for insufficiency can only be sus- tained where it appears that admitting all the facts alleged it presents no cause of action whatever. It is not sufficient that the facts are imperfectly or informally averred, or that the pleading lacks distinctness or precision, or that the material facts are only argumentatively averred. The complaint on demurrer is deemed to allege what can be implied from the allegations therein by reasonable and fair intendment, and facts impliedly averred are traversable in the same manner as though directly averred. Marti v. Garrison, 83 N. Y. 14. Upon demurrer the inquiry is whether the facts stated in the complaint are sufficient to entitle the plaintiff to the judgment asked (35 Hun 281; 52 Super. 179), but after answer the inquiry is whether the plaintiff upon the facts stated is entitled to any judgment. § 211. Demurrer to counterclaim. (Co. Civ. P. § 494.)— The only ground of demurrer to a defence consisting of new matter is that it is insufficient in law. But plaintiff may demur to a counterclaim upon five grounds: 1st. That the court has no jurisdiction of the subject thereof. 2d. That the defendant has not legal capacity to recover upon the same. §§212-214-] DEMURRER TO ANSWER. . 185 3d. That there is another action pending between the same parties for the same cause. 4th. That the counterclaim is not of the character specified in § 501. 5th. That the counterclaim does not state facts sufficient to constitute a cause of action. A demurrer to a counterclaim must distinct])' specify the ob- jection to the counterclaim, otherwise it may be disregarded. The mode of specifying the objections is the same as where a demurrer is taken to a complaint (§ 496). An instance of demurrer to counterclaim is 88 N. Y. 258, where in an action for breach of contract defendant counter- claimed damages for trespass to lands out of the State, and the counterclaim was held bad on demurrer on the ground that the court had no jurisdiction. § 212. Demurrer to answer. (Co. Civ. P. § 494.)— When new matter is set up as a defence it must be tested on demurrer by the requirements of a complete and valid defence. It can- not be sustained as a partial defence unless it is expressly so pleaded as required by § 508. Thompson v. Naton, 109 N. Y. 329. In that case defendant pleaded as a defence in an action for conversion new matter which went only to the value of the article alleged to have been converted, and this was not pleaded as a partial defence held bad on demurrer. But matter pleaded as a partial defence may be demurred to as not sufficient for that purpose (40 Hun 536, 537). In Goodman v. Robb (41 Hun 605) a plea of hypothetical mat- ter in an answer was held bad, and it was also held that the remedy was by demurrer to the plea for insufficiency. § 213. Demurrer to reply. (Co. Civ. P. § 493.)— The sole ground of demurrer to a reply, or to a separate traverse to or avoidance of a defence or counterclaim contained in the reply, is that it is insufficient in law upon the face thereof (§ 493)- § 214. Permission to amend after decision of demurrer. (Co. Civ. P. §497.) — Upon the decision of a demurrer either at General or Special Term or in the Court of Appeals, the court may in its discretion allow the party in fault to plead anew or amend upon such terms as are just. If a demurrer to a com- 186 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. plaint is allowed because two or more causes of action have been improperly united, the court may in its discretion, and upon such terms as are just, direct that the action be divided into as many actions as are necessary for the proper determi- nation of the causes of action therein stated. Whether or not an amendment will be allowed is discre- tionary (81 N. Y. 228), and this discretion cannot be reviewed in the Court of Appeals. If a party avails himself of the leave to amend or withdraw his demurrer, it is then out of the case and is no part of the record (74 N. Y. 495). § 215. Supplemental pleadings. (Co. Civ. P. § 544.) — Upon the application of either party the court may, and in a proper case must, upon such terms as are just, permit him to make a supplemental complaint, answer, or reply, alleging material facts which occurred after his former pleading, or of which he was ignorant when it was made, including the judg- ment or decree of a competent court rendered after the com- mencement of the action determining the matters in contro- versy, or part thereof. The party may apply for leave to make a supplemental pleading either in addition to or in'place of the former pleading. In the former event if the application is granted, a provisional remedy or other proceeding already taken in the action is not affected by the supplemental plead- ing, but the right of the adverse party to have it vacated or set aside depends upon the case presented by the original and sup- plemental pleadings. The object of a supplemental pleading is to setup facts consist- ent with and in aid of the original pleading (2 Hun 643) which have occurred or come to the knowledge of the party since the action was begun or the original pleading served. Holyoke v. Adams, 59 N. Y. 233. Facts which have occurred since the commencement of the action cannot be proved unless so set up. Hall v. Olncy, 65 Barb. 27. The party must apply for leave. He will prepare his supple- mental pleading and have it verified; he will prepare affidavits showing that the facts set up in the supplemental pleading either occurred or came to his knowledge since the original pleading, and any special fact in the case which ought to influ- ence the court to exercise its discretion in his favor. Upon § 2l6.] VERIFICATION OF PLEADINGS. 187 these papers, with notice of motion served upon the parties who have been served with process, and on the attorneys of such as have appeared, he makes his motion, which must be granted unless the papers show a case calling for the exercise of a contrary discretion. Holyokev. Adams, 59 N. Y. 233; Spears v. The Mayor, 72 N. Y. 442. Ordinarily the motion will be granted unless the pleading is clearly bad or frivolous (25 Hun 543). A plaintiff will not be permitted to shift by supple- mental complaint the case made by the original complaint (37 Super. 388), so as to recover upon a new cause of action which did not exist when the original complaint was served (2 Hun 643). The principle is that the supplemental complaint must be consistent with and in aid of the case made in the original complaint. Proitty v. Lake Shore &• M. S. R.R., 85 N. Y. 272. When the supplemental matter requires the addition of new parties to the action, the motion should also be for leave to issue and serve a supplemental summons bringing in such additional parties. It is not uncommon to apply for leave to serve a supple- mental and amended pleading. This enables the pleader to incorporate into one instrument all the allegations and to con- form the statements of the original complaint with the new matter, making one homogeneous pleading. As to supplemental summons, see §453- PROVISIONS GENERALLY APPLICABLE TO PLEADINGS. § 216. Verification of pleadings— When pleading must be verified. (Co. Civ. P. §523.) — "When a pleading is verified, each subsequent pleading except a demurrer or the general answer of an infant by his guardian ad litem, must also be verified. But the verification may be omitted in a case where it is not otherwise specially prescribed by law when the party pleading would be privileged from testifying as a witness concerning an allegation or denial in the pleading. A pleading cannot be used in a criminal prosecution against the party as proof of a fact admitted or alleged therein." We note first that there is no requirement that a complaint Shall be verified. There are one or two special instances in other connections requiring verification of certain matters (see § 1938). The complaint may be served unverified with the same 188 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. effect as though verified, except that the defendant need not verify his answer, and except, also, that if the plaintiff becomes entitled to enter judgment by default in a case where the clerk might otherwise enter judgment for the amount demanded in the complaint, the clerk must assess the amount due by com- puting the same and by ascertaining by the examination of the plaintiff upon qath or other competent proof the amount due the plaintiff (§1213). When the complaint is verified the answer must also be veri- fied (§523), and if an unverified answer be served, in such a case it may be treated as a nullity, provided the plaintiff gives notice with due diligence to the attorney of the adverse party that he elects to do so (§ 528). A party is excused from verifying a pleading under this sec- tion only when the party would be privileged from testifying as a witness (§523). Those instances are as follows: A witness cannot be compelled to answer any question which it reasonably appears will have a tendency to expose him to a penal liability, forfeiture of his goods, or any kind of punish- ment, or a criminal charge (1 State R. 730; Code, §837). Therefore, in an action against a trustee of a manufacturing company upon a liability for failure to file an annual report, the defendant is excused from verifying the answer, the action being for a penalty. Gadsden v. Woodward, 103 N. Y. 242. A defendant sued for divorce on the ground of adultery need not verify the answer (§ 1757), nor need a defendant in an action for libel (2 Civ. Pro. 34). A defendant is not excused from verifying his answer to a complaint charging him with having confessed or suffered a judgment, or executed a conveyance, assignment, or other instrument, or transferred or delivered money or personal property with intent to hinder, delay, or defraud his credit- ors, or with being a party or privy to such a transaction by another person with like intent toward the creditors of that person; or with any fraud whatever affecting a right or the property of another (§529). If a party desires to avail himself of the right to serve an unverified pleading, he may do so if his right so to do appears upon the face of the pleading he is answering (33 Hun 238); if not, he should attach an affidavit to his pleading showing why it is unverified. §217.] BY WHOM THE PLEADING SHOULD BE VERIFIED. 1 89 One matter in the pleading which may be answered without verification gives the party a right to interpose a pleading wholly unverified (14 How. Pr. 151; 6 Abb. Pr. 148). § 217. By whom the pleading should be verified. (Co. Civ. P. §525.) — The verification must be made by the affidavit of the party, or if there are two or more parties united in inter- est and pleading together, by at least one of them who is acquainted with the facts. A guardian ad litem who puts in a pleading for an infant may verify it. Clay v. Baker, 41 Hun 58. An infant cannot be required to verify a pleading. If the parties are partners or united in interest, one of them may verify the pleading; but if their interests are several, as the maker and endorser of a note, each must verify (5 Bosw. 666; 14 How. Pr. 305). There are certain excepted instances in which a person other than a party may verify a pleading. They are: (1). Where the party is a domestic corporation, in which case the verification must be made by an officer thereof. It has been held that neither an ex-officer of a corporation nor a general manager (15 Civ. Pro. 259) could verify a pleading under this provision. The latter decision seems to be open to question. (2). When the people of the State are, or a public officer in their behalf is the party, the verification may be made by any person acquainted with the facts. (3). The verification may be made by the agent of, or the attorney for, the party, where (1), the party is a foreign corporation; (2), where the party is not within the county where the attorney resides, or if he is not a resident of the- State or of the county where he has his office, and capable of making the affidavit; (3), or, if there are two or more parties united in interest, and pleading together, where neither of them, acquainted with the facts, is within that county, and capable of making the affidavit; (4), where the action or defence is founded upon a written instrument for the payment of money only, which is in possession of the agent or the attor- ney; (5), or where all the material allegations of the pleading are within the personal knowledge of the agent or the attorney (§525)- If the verification 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 I90 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH.VII. it is not made by the party (§ 526). These provisions, so far as they require explanation, are considered under the next head- ing. § 218. Form of verification. (Co. Civ. P. § 524.) — The affidavit of verification must be to the effect that the pleading is true to the knowledge of the deponent, except as to the mat- ters therein stated to be alleged upon information and belief, and that as to those matters he believes it to be true (§526). tJnless the allegations of the pleading are therein stated to be made upon the information and belief of the party, they must be regarded for all purposes, including a criminal prosecution, as having been made upon the knowledge of the person verify- ing the pleading. An allegation that the party has not suffi- cient knowledge or information to form a belief with respect to a matter must for the same purposes be regarded as an alle- gation that the person verifying the pleading has not such knowledge or information (§ 524). The form of the verification is simple and easily carried in the memory, and there should be no departure from the words of the statute. Where the verification is made by an officer of a corpora- tion, he need not set forth the grounds of his belief (7 Civ. Pro. 443), but otherwise when it is made by an agent or attorney of a corporation (15 Civ. Pro. 259). A corporation may make a denial upon information and belief (14 Civ. Pro. 224). A guardian ad litem although not a party need not show the grounds of his belief (41 Hun 58). When the verification purports to be -made by an agent or attorney, and does not comply with the requirements of the statute, it is to be treated as an unverified pleading (54 How. Pr. 23). When the pleading is as of the party's knowledge, a veri- fication by an attorney simply stating that the party is not within the county where the attorney resides is a compliance with the statute (46 Hun 397). When the agent or attorney must set forth the grounds of his belief, it is enough for him to state that his information came from letters of the plaintiff and conversations with defendant, and that these are grounds of his belief (49 Hun 471). If the action is upon an instrument for the payment of money only, which is in the possession of the attorney, a state- § 2 1 9. J BILLS OF PARTICULARS. 191 ment of that fact is a sufficient reason for his making the verifica- tion (9 Civ. Pro. 165), and it is also a sufficient statement of the grounds of his belief (27 Hun 369). You will find a full note on verification of pleading in 8 Civ. Pro. 438, and forms for a variety of cases in 2 Abbott's New Prac. and Forms, p. 437. §219. Bills of particulars. (Co. Civ. P. § 531.) — We have already briefly considered the mode of obtaining and prepar- ing a copy of an account pleaded, under § 531. That section also contains a general clause applicable to all cases whether the action be brought upon an account or not. Its language is, " The court may in any case direct a bill of the particulars of the claim of either party to be delivered to the adverse party.'' Two leading cases, both cases of note, will serve to show the extent and character of the relief which may be ob- tained under this title. These cases are Tilton v. Beecher (59 N. Y. 176) and Dwight v. Germania Life Ins. Co. (84 N. Y. 493). In the first of these, which was a case of crim. con., it was held that the court had power to order the plaintiff to furnish a bill of particulars of the specific charges. Rapallo, J., reviewed the cases and reached the conclusion, " that in almost every kind of case in which the defendant can satisfy the court that it is necessary to a fair trial that he should be apprised before- hand of the particulars of the charge which he is expected to meet, the court has authority to compel the adverse party to specify those particulars so far as in his power." In the other case {Dwight v. Germania Life) the court required the defendant to furnish in detail certain matters generally alleged in the answer. The action was upon a policy of life assurance. The defence was, that the insured had formed a plan, being in ill health, to obtain life assurance by false rep- resentations, and that he did in this way obtain policies for an enormous amount, and then took his own life. Ch. J. Folger wrote the opinion, in which he discussed the meaning of the phrase, " claim of either party." The opinion says, " The claim spoken of by that section where the case of a defendant is in hand, is whatever is set up by him as a reason why the action may not be maintained against him, . . . the position he takes in his pleading, based upon the facts he sets up." A bill of particulars is an amplification of the pleading. Its office is to extend and define the pleading so as to enable the ad- 192 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. verse party to prepare to meet the case to be made against him (24 Hun 375; 25 Hun 214). It is not a means of discovery of the evidence to be relied upon by the other side (38 Hun 11). As we have seen, a defendant as well as a plaintiff may be required to furnish particulars of his claim, and this includes not merely the case of an affirmative claim as a counterclaim, but also of matter set up merely as a defence (100 N. Y. 602). In Ball v. Evening Post Pub. Co. (38 Hun 11) the defendant was required to furnish a bill of particulars of matters set up by way of justification under the general rule of pleading in libel, that it is not enough to allege in an answer by way of justification that the allegation is true, but it is necessary to set out the par- ticular facts which evince the truth of the imputation upon the plaintiff's character. So the plaintiff also may be compelled to furnish a bill of particulars in an action for libel (35 Hun 501). § 220. Practice to procure bill of particulars. — To obtain a bill of particulars the remedy is by motion and order except when the account is the basis of the complaint, 'and then by demand, as we have seen. The application is to be made to the court at Special Term for the hearing of motions. The motion should be made in the affidavit of the party show- ing that the specific information which he seeks is not known to him, and if the affidavit is made by the attorney or agent the reason why it is not made by the party should be set forth (7 Civ. Pro. 215). The order made should direct a time when the bill of par- ticulars is to be furnished, and should specify the particulars which the party is required to furnish as to time and place, etc., according to the requirement of each particular case. The order should contain a provision that the bill of par- ticulars be verified, otherwise there is no provision for verifi- cation. The penalty for disobedience may be inserted in the order (84 N. Y. 505). The penalty may be either that the party be precluded from giving evidence of the matters upon the trial or that his proceedings be stayed or that his pleading be stricken out (87 N. Y. 272). The bill furnished must of course correspond with the requirements of the order. If it does not, or if the party is not satisfied, he may move for a further bill. Whether the court will require a further bill of particulars is in the discretion of the court. § 22I.J AMENDMENTS OF COURSE BEFORE TRIAL. I93 The effect of the bill when furnished is to limit the issue on the trial. The evidence in the case and the recovery must be limited to the matters set forth in the bill of particulars (3 Duer 691). § 221. Amendments of course before trial. (Co. Civ. P. § 542.) — Within twenty days after a pleading or the answer or demurrer thereto is served, or at any time before the period for answering it expires, the pleading may be once amended by the party of course without costs and without prejudice to the proceedings already had. But if it is made to appear to the court that the pleading was amended for the purpose of delay, and that the adverse party will thereby lose the benefit of a term for which the cause is or may be noticed, the amended pleading may be stricken out or the pleading may be restored to its original form and such terms imposed as the court deems just. The right to amend a pleading once is absolute, subject to the power of the court to strike out (2 Civ. Pro. 250). A party may amend by substituting an entirely different cause of action from that originally pleaded (49 N. Y. 78). But the amendment must be of the pleading served; thus, if he has served a demur- rer, he may within the time limited serve as of course an amended demurrer; so if he has served an answer, he may amend by serving an amended answer; but he cannot, without application to the court for leave, withdraw a demurrer and substitute in its place an answer (Cashman v. Reynolds, 123 N. Y. 138), nor can he without motion withdraw an answer and serve a demurrer (19 Abb. 96). He may serve an amended plead- ing, although the case has been noticed for trial by his adver- sary (20 Hun 421), and even after he has himself served notice of trial (27 Hun 231). And a party may amend his pleading within this section as of course, although a motion is pending to strike out parts of it (58 How. Pr. 52), or for judgment upon it as frivolous (5 Duer 654), or to make it more definite and certain (1 Civ. Pro. 280), and the motions then fall, but they may be renewed against the amended pleading. An amended pleading supersedes the original (20 Hun 421; 39 State R. 580). It relates back to the commencement of the action and may prevent the statute of limitations from barring an action not included in the original. Ward v. Kalbfleish, 2* 13 194 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. How. Pr. 283; 20 Civ. Pro. 235. The original pleading may be used in evidence, though superseded as a pleading (20 Hun 90). When an amended pleading is served in bad faith, the proper practice is by motion to strike it out (20 Hun 421). In some instances, however, parties have been held justified in disre- garding the amended pleading when it was manifestly inter- posed for delay (4 Abb. 289). When a pleading is amended as prescribed in this section, a copy thereof must be served upon the attorney for the adverse party. A failure to demur to or answer the amended pleading within twenty days thereafter has the same effect as a like fail- ure to demur to or answer the original pleading (§ 543). § 222. Amendment of pleadings on the trial. (Co. Civ. P §§ S39> 54°) 54 1 -) — A variance between an allegation in a pleading and the proof is not material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defence upon the merits. If a party insists that he has been misled, that fact, and the particulars in which he has been misled, must be proved to the satisfaction of the court. Thereupon the court may in its discretion order the pleading to be amended upon such terms as it deems just (§ 539). When the variance is not material as prescribed in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment without costs (§540). When, however, the allegation to which the proof is directed is unproved, not in some particular or particulars, but in its entire scope and meaning, it is not a case of variance within the last two sections, but a failure of proof (§541). Reedw. McConnell, 133 N. Y. 425; s. c. 45 State R. 227. These sections contemplate a variance developed on the trial when the relief may be at once given and the trial proceeded with upon the pleadings by treating them as amended (10 How. Pr. 193). A referee has power to order such amendments (98 N. Y. 388) upon the trial. Subject to the limitation that an amendment cannot be allowed which will change the issue or bring in a new cause of action, the court may conform the pleadings to the facts proved (20 Barb. 493), and may permit the insertion of material additional allegations (75 N. Y. 122). A few instances will illustrate the application of this rule. Thus, complaint, goods sold and delivered to defendant; proof, § 223.J FRIVOLOUS PLEADING. I9S delivery to a third party by order of defendant (1 Bosw. 417). Complaint, on contract for services at specific compensation; proof, value of services (55 N. Y. 319), and the converse : Com- plaint on quantum meruit; proof, specific contract price (62 N. Y. 617) : Complaint on promissory note payable in three months; proof, note payable in four months (4 Duer 448) : Allegation that by fault of railroad company plaintiff's cows strayed on its tracks and two were killed and two injured by its negli- gence; proof of failure to fence track, and that four cows were killed and three injured (31 State R. 750). In all these cases the variance was held immaterial. Whether the party is misled by the variance is to be deter- mined by proof. In actual practice the assurance of reputable counsel that he is misled is enough. § 223. Frivolous pleading. (Co. Civ. P. § 537.) — If a demurrer, answer, or reply is frivolous, the party prejudiced thereby upon a previous notice to the adverse party of not less than five days, may apply to the court or to a judge of the court for judgment thereupon, and judgment may be given accordingly. If the application is denied, an appeal cannot be taken from the determination, and the application does not prejudice any of the subsequent proceedings of either party. Costs as upon a motion may be awarded upon an application pursuant to this section. To justify an order for judgment on a demurrer as frivolous the demurrer must be not only without adequate reason, but so clearly and plainly without foundation that the defect ap- pears upon mere inspection and indicates that its interposition was in bad faith. Cook v. Warren, 88 N. Y. 39. An answer is frivolous when it contains no general or special denial, and sets up no defence by way of new matter, and does not contain a counterclaim. It must be so clearly and palpably bad as to require no argument or illustration to show its character, and as to be pronounced frivolous and indicative of bad faith in the pleader upon a bare inspection (53 N. Y. 497) The pleading will be sustained if a material issue is presented {Munger v. Shannon,6i N. Y. 251), and though the pleading is not in proper form, if a defence is shadowed out (16 How. Pr. 135). Where a part of the answer is good and part bad, the court should not order judgment. Strong v. Sproul, 53 N. Y. I96 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. 497. Judgment can never be granted because of the frivolous- ness of defendant's answer if the complaint is not good (61 N. Y. 251). The remedy for a frivolous pleading is a summary applica- tion for judgment. The pleading is not stricken out, but what- ever action may be had in respect to it, whether condemned as frivolous or not, it remains a part of the record and makes a part of the judgment roll (23 N. Y. 162; 53 N. Y. 498). The motion is made on the copy of the pleading served, and no affi- davit is necessary or proper (13 Civ. Pro. 122), except to show the receipt of the answer and proof of service of notice. The notice is that the plaintiff will move for judgment on the answer as frivolous; five days' notice must be given. There is no such practice (although there seems to be some cases that so hold) as striking out part of an answer as frivolous (35 State R. 567). §224. Sham answer or defence. (Co. Civ. P. § 538.) — A sham answer or defence may be stricken out by the court upon motion and upon such terms as the court may deem just. A sham answer or defence is one which is false. But it is manifest that if the answer or defence is good in form, and sets up what appears to be a substantial defence, it is the province of the trial court to determine whether the defence is true or false. Hence, when an answer is not frivolous upon its face, but sets up a good defence which is sworn to and the defendant presents an affidavit of merits, it is only in very clear and extraordinary cases that the court will try the issue raised by the answer on affidavits. However, there have been cases in which the answer or defence has been stricken out as sham. This power was exercised more freely in earlier years of the Code. But in Wayland v. Tysen (45 N. Y. 281), in an opinion written by Grover, J., it was held that the Code had not in substance changed the common-law rule, which was that the general issue could not be stricken out as sham, and that the power of the court extended only to such affirmative defences as were not verified by the oath of the defendant or other equivalent evidence. And it was shortly after held that a verified pleading could not be stricken out as sham when it contained a denial of any material allegation of the complaint though not a general denial (45 N. Y. 468). § 224-] SHAM ANSWER OR DEFENCE. I97 In 51 Hun 97 it is said as a result of the cases that an affirm- ative answer or defence which raises a material issue, may be stricken out as sham, but a general or special denial which raises a material issue cannot be stricken out as sham if pleaded in a form permitted by the Code; but in Cavanagh v. Oceanic S. N. Co. (33 State R. 903), the General Term reversed an order deny- ing a motion to strike out certain portions of plaintiff's reply as sham, and ordered that a denial be stricken out as sham when its falsity appeared from other portions of the same pleading. The rule stated before as to general or special denials is now undoubtedly the general rule, and it extends to a denial of knowledge or information sufficient to form a belief (56 Hun 194), and to a denial upon information and belief (48 Hun 81). In the case last cited it is said that when the answer con- tains an affirmative defence in avoidance of a recovery, it may be shown by affidavit to be false, and may be stricken out as sham. But even this power has been doubted (45 Super. 311), and it will be found that the instances in which the court will strike out a pleading as sham are very rare and exceptional. " A pleading to be stricken out," says O'Brien, J. (18 Civ. Pro. 227), "must be false in the sense of being a mere pre- tence set up in bad faith and without color of fact " (citing 6 Abb. N. S. 42; 1 Daly 388), and where (in Rogers v. Vosburgh, 87 N. Y. 228) the action being on a promissory note, the defence set up was a material alteration by the change of date of the note, and the court held this defence sham upon an inspection of the note, the ruling was reversed, and it was held that it was not the province of the court to determine the question of fact upon a mere inspection of the note. An answer will not be stricken out as sham if the defendant swears it was put in in good faith and not for delay, and presents an affidavit of merits (12 How. Pr. 563). The practice on a motion to strike out an answer as sham is to prepare affidavits and move on notice to defendant's attor- ney. The defendant may oppose by affidavits showing that the answer is true in fact, or might be true, and that it was interposed in good faith and not for delay. The truth or falsity of the answer will not be determined by the court on affidavits, but the motion will be denied and the parties left to try the question of fact in the usual way, unless the falsity of I98 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. the answer is so apparent as to admit of no reasonable doubt. But when the plaintiff swears positively to the falsity of the statement of the answer, and the opposing affidavits do not legally tend to establish the defence, or where the falsity of the answer is shown by record evidence (Baylies' Code PL, p. 353), or by another part of the same pleading, the answer or part of answer may be stricken out as sham. § 225. Irrelevant, redundant, or scandalous matter. (Co. Civ. P. § 545.) — Irrelevant, redundant, or scandalous matter contained in a pleading may be stricken out upon the motion of a person aggrieved thereby. Where scandalous mat- ter is thus stricken out, the attorney wjhose name is subscribed to the pleading may be directed to pay the costs of the motion and his failure to pay them may be punished as a contempt of the court. The matter which may be stricken out under this section must be either "irrelevant, redundant, or scandalous,'' and it must be such as aggrieves some person. Only a party can be aggrieved by irrelevant or redundant matter, but a stranger to the suit may be aggrieved by scandalous matter. Irrelevant matter is such as is irrelevant to the cause of action or defence attempted to be stated in the pleading. Hagerty v. Andrews, 94 N. Y. ro5. A motion under this section is not the proper mode of testing the question whether any cause of action has been set up in a pleading against a defend- ant ; that may be done by demurrer {Ibid.). The true test of relevancy is to inquire whether the averments tend to con- stitute a cause of action or defence ; if they do, they are not irrelevant (33 Barb. 86). "Redundant" and "irrelevant" are not equivalent terms. Matter which is irrelevant is also redun- dant, but the converse is not true. A needless repetition of material averments is redundancy, although the facts may not be irrelevant (5 Sandf. 657). Statements of evidence in the pleading are redundant (10 How. Pr. 48). A party is not nec- essarily aggrieved by the statement of irrelevant or redundant matter in a pleading, and unless he shows himself aggrieved, the motion will not be granted (26 Hun 442). It may be, how- ever, that matters are stated in a complaint which are either irrelevant to the issue or which are intended to compel an answer to evidence rather than to the issuable facts, and in § 226.] INDEFINITE AND UNCERTAIN ALLEGATIONS. I99 such case it may be well to make a motion to strike out such matter from the complaint. Courts of equity exercised the power of striking out scandal- ous matter from pleadings before the Code (15 Ves. 476); it is essential to the due administration of justice and the protection of the feelings and character of suitors (5 Sandf. 660). "It does not promote the ends of justice or contribute .to the strength of a lawyer's advocacy to indulge in personalities in writing or by speech, and the omission of both adds to his reputation and dignity " (8 Hun 522). The attorney and not the client will be regarded as the responsible party where scandalous matter is inserted in a pleading (8 Hun 522), and he will be charged with casts. A motion to strike out of any pleading matter alleged to be irrelevant, redundant, and scandalous, and motions (under the next section considered) to correct a pleading on the ground of its being so indefinite or uncertain that the precise meaning or application is not apparent, must be noticed before demurring to or answering the pleading, and within twenty days from the service thereof (Rule 22). If a party notices the case for trial (15 Abb. 286), or demurs or answers to a complaint, or obtains an extension of time to answer or demur without reserving leave to make the motion, it will not be granted (36 Hun 70). The motion should be made upon the pleadings alone, and not on affidavits (14 How. Pr. 91). The notice of motion should specify the parts of the pleading which it is desired to strike out (18 How. Pr. 240). § 226. Indefinite and uncertain allegations. (Co. Civ. P. § 546.) — Where one or more denials or ^allegations contained in a pleading are so indefinite or uncertain that the precise mean- ing or application thereof is not apparent, the court may re- quire the pleading to be made definite and certain by amend- ment (§ 546). This motion is to be determined upon an inspection of the pleading, and if from such inspection the court can see with reasonable certainty the meaning of the allegations and the cause of action therein intended to be set forth, the pleading will be held sufficient to resist a motion to make it more defi- nite. The right to relief depends upon whether or not the charge is obscure. If the precise nature of the charge is appar- 200 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. ent, then the statute is not authority for granting relief. 19 Civ. Pro. 321; Jackman v. Lord, 56 Hun 192; 45 State R. 332. The remedy where the pleading is formally correct and intel- ligible and more details are desired, is by bill of particulars. The principle is stated in 19 Civ. Pro. 321, but the same volume from which the statement is taken contains two cases which seem to be quite inconsistent. One is referred to at p. 57, and in it a motion was granted to compel a plaintiff to make a complaint more definite and certain by stating the time and place of a demand; and in the second case, a party who had interposed a reply denying new matter in an answer upon information and belief (p. 69), was required to make the reply more definite and certain by replying in detail (p. 69). This motion has been held available to compel a party to give par- ticulars of matters alleged in a pleading (5 Duer 662). Thus, when a complaint alleged that a corporation by its agent and officers made false representations, a motion was granted to make the complaint more definite and certain by stating the names of the officers (32 Hun 235). When the complaint left it uncertain whether the party sought to recover upon an affirmance or rescission of a con- tract, the party was compelled to make it definite and certain under this section (50 Super. 70). Rule 22 applies to motions under this section. The motion is made upon the pleading itself, and the notice of motion must specify the particulars in which the pleading is to be amended to render it more definite and certain. § 227. Service of pleadings and extension of time to plead. (Co. Civ. P. §479.) — If a copy of the complaint is not delivered to a defendant at the time the summons is served, his attorney may, at any time within twenty days after the service of the summons is complete, serve upon the plaintiff's attorney a written demand of a copy of the complaint, which must be served within twenty days thereafter. The demand may be incorporated into the notice of appearance. But when the same attorney appears for two or more defendants, only one copy of the complaint need be served upon him; and if after service of the copy of the complaint upon him as attorney for a defendant he appears for another defendant, the last de- fendant must answer the complaint within twenty days after § 227-J SERVICE OF PLEADINGS. 201 he appears in the action (§ 479). If the plaintiff's attorney fails to serve a copy of the complaint as prescribed in the last section, the defendant may apply to the court for a dismissal of the complaint. A copy of each pleading subse- quent to the complaint must be served on the attorney for the adverse party within twenty days after service of a copy of the preceding pleading (§ 520). When a pleading is served by mail, the opposite party has double time in which to serve the subsequent pleading (§ 798). Pleadings of more than two folios in length must be folioed (100 words to a folio), and copies must conform to the original in folios. Ail pleadings must be legibly written and folioed or the clerk is not required to file them, and the court will not hear ap- plications upon them. Papers copied by letter-press and type- written must be printed in black characters and on paper 14 lbs. to the ream (Rule 19). On a failure to comply with this rule, the pleading may be returned within twenty-four hours (Rule 19). The copy which is served is the one by which the party is bound as to his admissions ; thus, if he serve an unverified pleading though the original be properly verified, the pleading will be regarded as unverified. If the time within which a pleading should be served expires before the pleading is served, the only remedy is by motion for leave to open the default and to serve the pleading, which will be granted ordinarily on terms if the pleading is shown to have merit. If the pleader is unable to prepare his pleading within the time limited he should, before the time expires, usually first apply to his adversary for extension by consent. If that is not granted he can obtain extension only by order of the court, which may be granted ex parte, upon affidavit showing the necessity for the extension. A rule of court (Rule 24) pro- vides that no order extending a defendant's time to answer or demur shall be granted unless the party applying for such order presents an affidavit of merits or proof that it has been filed, or an affidavit of the attorney or counsel retained to defend the action, that from the statement of the case in the action made to him by the defendant he verily believes that the defendant has a good and substantial defence upon the merits to the cause of action set forth in the complaint or to some part thereof. And the affidavit shall state whether any and what extension or extensions of time to answer or demur have 202 PLEADINGS, INCLUDING COUNTERCLAIMS. [CH. VII. been granted by stipulation or order, and when any extension has been had, the date of issue shall be twenty days after serv- ice of the complaint. The affidavit of merits mentioned in this Rule is an affidavit of the party that he has stated the case in the action to his counsel, and after such statement he is advised that he has a good defence, etc , upon the merits. Affi- davits of merits are found among the usual law blanks. There is one instance in which the court cannot extend the time to answer ex parte, and where the application for an exten- sion must be made on notice, and that is in an action against a foreign or domestic corporation to recover damages for the non-payment of a promissory note or other evidence of debt for the absolute payment of money upon demand or at a par- ticular time (§ 1778). CHAPTER VIII. ARREST PENDING THE ACTION. CHAPTER VII., TITLE I., CODE OF CIVIL PROCEDURE. § 228. General observations. — The remedy by arrest be- fore judgment in civil actions was resorted to more frequently under the former practice than at present. It is, however, still a subject of practical importance. The history of this remedy in this State has already been briefly alluded to (Chap. I.). Previous to the Revised Statutes arrest on mesne process was not regulated by statute, but was governed by the rules of the common law. --"The Revised Statutes defined the cases in which the defendant might be held to bail substan- tially as at common law.. The defendant could be held to bail without application to the court in all actions on contract for the payment of money, performance of services, or the delivery of property when the demand or damages were certain or could be reduced to cer- tainty, in all actions of trover or trespass for taking personal property and trespass to land. In all other cases an order requiring bail could be granted according to the practice of the Supreme Court. The non-imprisonment act which went into effect in 1832 (Laws of 1831, chap. 300), while it abolished imprisonment for debt on contract, was harsher in its operation in the cases where it applied than the procedure at common law. It did not affect actions on tort where the remedy remained as before. It provided that no person should be arrested in an action to recover money due upon a judgment founded upon contract, or upon a contract express or implied, and provided a summary remedy in the nature of a criminal process which might issue (203) 204 ARREST PENDING THE ACTION. [CH. VIII. upon affidavit showing that a debt existed for more than $50, upon which arrest could not be made under the foregoing pro- vision, and establishing one or more of the following particu- lars: (1). That the defendant was about to remove his property out of the jurisdiction of the court in which the suit was brought with intent to defraud his creditors. (2). That the defendant had property or rights in action which he fraud- ulently concealed, or that he had rights in action or some interest in public or corporate stocks, money, or evidence of debt which he unjustly refused to apply to the payment of any judgment or decree which shall have been rendered against him belonging to the complainant ; or (3). That he had as- signed, removed, or disposed of any of his property with, the intent to defraud his creditors; or (4). That the defendant had fraudulently contracted the debt or incurred the obligation respecting which such suit was brought. The warrant directed that the defendant be summarily brought before the officer issuing it, when an inquiry could be at once had as to the facts. If upon the hearing the officer found the facts against defendant, he must either pay the debt or give security to pay it within sixty days, or he might execute or give security to execute an assignment of his property, in which case a dis- charge could be granted, provided his proceedings were shown to be " just and fair "; but if they were found to be otherwise, his imprisonment was unlimited. The act contained further provisions for criminal proceedings. This act was not repealed until 1880 (Laws of 1880, chap. 245). The Code of 1848 abolished imprisonment for debt, except as prescribed in that statute and"" in the non-imprisonment act. The provisions of that Code in general outline were similar to those in the present statute. In 1886 an amendment was made to the present Code, which has had a marked influence upon this remedy. By that amend- ment (§ in) no person can be imprisoned for a longer period than three months upon a mandate or execution to enforce the recovery of a sum of money less than five hundred dollars, and where the amount is for that sum or over, the imprisonment shall not continue for a longer period than six months. Since this rule applies to prisoners on the jail liberties as well as to those in close confinement, a defendant who can give bail, par- ticularly in the city of New York, suffers little inconvenience from an order of arrest. § 229.J WHEN DEFENDANT MAY BE ARRESTED. 205 Turning now to the special title under consideration, we observe that it relates exclusively to arrest on mesne process. Arrest on final judgment or in special proceedings when per- mitted is treated in other sections. Section 548 provides that " a person shall not be arrested in a civil action or special proceeding except as prescribed by statute." 1. Discretionary. — It is said that the granting of an order of arrest is discretionary, — the language being permissive merely, — "a defendant may be arrested" (34 Super. 76, 82; 46 How. Pr. 171). It is not to be inferred from this, that in a plain case setting out all the facts essential to the securing of the right, the judge may arbitrarily refuse the order. A judicial discre- tion is what is meant, — that is, a judicial conclusion that the case presented is or is not fairly within the statute. For this reason an order of arrest should not be granted where its pro- priety depends upon a doubtful or important question of law. Cormier v. Hawkins, 69 N. Y. 188. The judge granting this order has an unlimited discretion in placing the bail required at a small amount. He may in that way prevent an abuse of process in cases where a technical right of action is made out, but the damages appear to be doubtful or speculative. 2. Joinder of causes of action. — When two or more causes of action are joined, any one of which does not present a proper case for an arrest, an order of arrest cannot be granted. Madge v. Puig, 71 N. Y. 608; Easton v. Cassidy, 21 Hun 459 ; Martin v. Gross, 16 Civ. Pro. 236. 3. Second Arrest. — It has always been regarded as a general rule that a defendant who has been once holden to bail cannot be held to bail a second time for the same cause of action (Graham's Pr. 133), but an exception is recognized where the second arrest does not appear to be vexatious. In the case of People v. Tweed (63 N. Y. 202) it was held that the defendant might be arrested a second time after a previous discharge, if the second action is not vexatious; and even a third arrest may be permitted when there is no purpose to vex the defendant (39 Hun 24). § 229. Actions in which a defendant may be arrested. (Co. Civ. P. §549.) — Examining this section, we observe that the right to arrest is declared to depend upon the cause for which 206 ARREST PENDING THE ACTION. [CH. VIII. the action is brought. We observe, also, that in some instances the cause of action itself does not determine the right to arrest, but that it is essential that the complaint in the action should contain averments supplemental to the cause of action in order that an arrest of defendant may be had. Thus, by subdivision two a defendant can be arrested in an action to recover a chattel, only " where it is alleged in the complaint that the chattel or a part thereof has been concealed, removed, or disposed of so that it cannot be found or taken by the sheriff, and with intent that it should not be so found or taken, or to deprive the plain- tiff of the benefit thereof "; and again, in an action to recover for money received, or to recover property or damages for the con- version or misapplication of property, the right to arrest is made dependent upon the allegation in the complaint that the wrongful act was done by certain classes of persons acting in a fiduciary capacity. Again, in subdivision four, in an action upon contract, express or implied, other than a promise to marry, the defendant can be arrested only when it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability, or, that he has, since the making of the contract, or in contemplation of making it, removed or disposed of his property with intent to defraud his creditors, or is about to remove or dispose of the same with a like intent; but where such allegation is made the plaintiff can- not recover unless he proves the fraud on the trial o.f the action. The second subdivision was put into its present form in 1886, when the clause as to the necessary allegations of the complaint was inserted. The provisions in the fourth subdivision, as to the averments of the complaint, were inserted in 1879. The decisions bearing upon the question of pleading under these subdivisions previous to the respective dates named are there- fore of no value. A history of the legislation affecting this sec- tion will be found in Moffatt v. Fulton (132 N. Y. 507). We note, therefore, that the right to arrest is thus made to depend not alone upon the cause of action, but in certain instances upon the form of the complaint. We observe fur- ther, with regard to the subdivisions of this section, that the first subdivision relates to one special class of actions, to wit, actions to recover for a fine or penalty, which is a continuance of the common law in the case of such actions. Subdivision second is a group of actions in tort or sounding in tort. Sub- § 229-1 WHEN DEFENDANT MAY BE ARRESTED. 207 division three is a special class of actions to recover public property or funds. The fourth subdivision embraces actions on contract where supplemental facts as to fraudulent conduct of defendant are alleged. Some of the individual clauses in the second subdivision require consideration. To recover damages for a personal injury. — Personal injuries are denned as including libel, slander, criminal conversation, seduc- tion, malicious prosecution, and also assault, battery, false imprisonment, and other actionable injuries to the person either of the plaintiff or another (§3343, subd. 9). An injury to property, including the wrongful taking, detention, or conversion of personal property. An injury to personal property is defined to be an actionable act whereby the estate of another is lessened other than a personal injury or the breach of contract (§ 3343, subd. 10). This includes an injury to real property (14 Hun 518), where the plaintiff brought his action to recover damages for a forcible ejectment and detainer under 2 R. S., p. 338, § 4. It includes an ordinary action of trover or conversion. Where plain- tiff sent defendant by mistake a check for goods which he had already paid for, and the defendant was aware of the mistake, but kept the check, an order of arrest was properly granted. Agar v. Haines, 14 Daly 448; s. c. 15 State R. 361. And it has been held to include an action for damages for inducing the plaintiff's workmen to strike and in attempting to boycott the plaintiff and prevent its carrying on its lawful business as a common carrier. Old Dom. S.S. Co. v. McKenna, U. S. Dist. Ct, S. D. of N. Y., 18 Abb. N. C. 262. Breach of promise to marry. — But this does not permit of the arrest of the female. 3 C. R. 23. (See § 553.) Misconduct or neglect in office, or in a professional employment. Fraud and deceit. — The common-law action of deceit was one of the forms of action of trespass on the case. To sustain it, five elements are essential: (1). That the defendant made a false representation of a material fact; (2), that it was made with a knowledge of its falsity; (3), that the plaintiff was igno- rant of its falsity and believed it to be true; (4), that it was made with the intent that it should be acted upon; (5), that it was acted upon by plaintiff to his damage. It is an action in tort. But the plaintiff, if he so elects instead of pleading in tort, may sue upon the contract and allege in the 208 ARREST PENDING THE ACTION. [CH. VIII. complaint that the defendant was guilty of a fraud in contract- ing or incurring the liability, and in that event he may obtain an order of arrest under subdivision four. There is a distinction between the two cases, to wit : be- tween an action of deceit, and an action on contract where the defendant was guilty of fraud in contracting the debt. In the first form of action, — i. e., deceit, — all the ingredients named above must be alleged. In the latter, the action is founded on the contract, and the false representations are incidental and inserted merely to insure the relief by arrest. The fraud in the first instance is a part of the cause of action; while in the second, the contract is the ground of action — the fraud is ex- trinsic to it. See Hathaway v. Johnson, 55 N. Y. 93. It appears that there is a distinction as to the right of arrest in these two forms of bringing the action in the following respect : If the defendant's agent has been guilty of fraud in contracting the debt of which the principal is ignorant, the principal will not be held liable to arrest when the action is brought on the contract {Hathaway v. Johnson, 55 N. Y. 93), the words " guilty of a fraud " being held to apply to actual and not to constructive frauds; but if the action is framed in deceit, the right to arrest is inherent in the action; since, when an agent makes false representations of which the principal is ignorant, but the principal adopts the bargain and reaps the benefit, he is bound by, and becomes liable for, the deceit of his agent, whenever the agent was acting within the scope of his authority. 63 N. Y. 653 ; Mayer v. Dean, 115 N. Y. 556. A leading case is Bennett v. Judson (21 N. Y. 238). In an action to recover a chattel when it is alleged in the com- plaint that the chattel or a part thereof has been concealed, re- moved, or disposed of, so that it cannot be found or taken by the sheriff, with the intent that it should not be so found or taken, or to deprive the plaintiff of the benefit thereof. When goods were removed or concealed so that the sheriff could not find or take them under a replevin, they were said at common law to be eloigned, and the sheriff's return in such case was termed an eloign. This was the case provided for by the first portion of the clause cited, but its operation is much ex- tended by the addition of the words, " or to deprive the plain- tiff of the benefit thereof." The meaning of the entire clause as it now reads is discussed in Barnett v. Selling (70 N. Y. 492). § 229.J WHEN DEFENDANT MAY BE ARRESTED. 209 An act done with intent to place property beyond the process of the court is ground of arrest, but it is also ground of arrest if one puts property, to the possession of which another is entitled, beyond his reach with intent to deprive him of it. " An intent to put the property beyond the reach of the owner by selling it to a bona fide purchaser, when such a transaction would avail for the purpose, or by so changing its form that it could not be identified, or by concealing it, or by any other act, will authorize the order although the fraudulent actor may not contemplate an action at law to recover the specific property." 70 N. Y. 495. See Lippman v. Shapiro, 50 Super. Ct. 367 ; Levy v. Salomon, 1 State R. 207 ; Ertell v. De Pennevet y 14 Civ. Pro. 336. An action to recover money received or to recover property or damages for the conversion or misapplication of property when it is alleged in the complaint that the money was received or the property 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. There are two classes of actions specified in this clause, to wit : an action for money received, — that is, an action ex con- tractu, — and an action to recover property or damages for a conversion or misapplication of property. In every action for wrongful conversion of personal prop- erty, a defendant is liable to arrest (supra), but under this clause, whether the action be founded upon the conversion or upon contract, the defendant may be arrested if it appears that the money was received or property embezzled or fraudulently misapplied in the cases of the persons mentioned. The term "fiduciary" involves the idea of trust, — that is, where a trust is imposed, and confidence given. The classes of persons named are such as act in such a fiduciary capacity. The terms attorney, factor, agent, or broker, as employed in this section, are qualified by the succeeding words, " or other person in a fiduciary capacity." Decatur v. Goodrich, 44 Hun 3. A factor is an agent employed to sell goods consigned or delivered to him. A broker is also an agent employed to sell goods, but is not usualty intrusted with the property. The H 210 ARREST PENDING THE ACTION. [CH. VIII. term " agent " is one of general significance, including both brokers and factors. When the relation of principal and factor is established, the relation is a fiduciary one, and when the factor has received the proceeds of sale he will be liable to arrest if he fails to pay them over (Wallace v. Castle, 14 Hun 106), and this is so even though the factor be acting under a del credere commission. The factor may show that the fiduciary relation with the principal has been altered by agreement or custom, as that the principal has authorized him to employ the proceeds and to make payments on general account or on a fixed credit, and that the relation of debtor and creditor has thus been estab- lished. If that be the case, the factor is no longer liable to arrest (13 Daly 339; 50 Barb. 300). The criterion seems to be whether the specific moneys received ought in good faith to have been kept and paid over to the employer, or whether the defendant upon receiving such moneys had the right to use them as his own, holding himself accountable to his principal for the debt thus created. Stoll v. King, 8 How. Pr. 298; 7 Hun 195. In the case of moneys deposited with a banker, subject to check, the relation created is that of debtor and creditor, and the relation is not fiduciary, hence the banker is not liable to arrest as an agent acting in a fiduciary capacity (4 Sand. 707); but a banker may become liable to arrest by reason of his transactions with his customer, as when he receives money for some specific purpose and applies it to another (Dubois v. Thompson, 25 How. Pr. 417), or when he receives a remittance with instructions to send a draft to a third person, and instead of so doing appropriates the money to his own use. Johnson v. Whitman, 10 Abb. Pr. N. S. in. Although a debt has been fraudulently contracted, yet if subsequently thereto plaintiff with knowledge of the fraud set- tles the original debt and enters into a new contract with addi- tional consideration, defendant cannot be arrested (13 Daly 225; 13 How. Pr. 366; 54 Barb. 630). Subdivision three was taken from Laws of 1875, ch. 49, passed in consequence of the Tweed litigation, and the appli- cation of the statute in that instance will be found in People v. Tweed (5 Hun 382). It applies to cases where funds or other property belonging to the public have come into the hands or control of a wrong-doer. People v. Phillips, 30 Hun 553. ■§ 230.] HOW SECTION BEAKS UPON PLEADING. 211 Subdivision four relates to actions on contract, express or implied, other than a promise to marry, in either of two instances : (i), when the defendant was guilty of fraud in contracting or incurring the liability; or (2), when, since mak- ing the contract, he has or is about to dispose of his property to defraud his creditors. These matters must be alleged in the complaint and proved on the trial. A judgment for defendant is not a bar to an action on the contract. The words, "contracting or incurring the liability," seem to add nothing to the words, " contract express or implied." The statute -applies whenever the contract, whether express or implied, was fraudulently created. Actual intent to defraud must be shown (88 N. Y. 669). A mere constructive fraud which the law implies, but which may have been done without actual guilty intent, will not sustain an arrest (30 Hun 9). Thus, the payment by one member of an insolvent firm of his individual debts out of firm assets, which would constructively be a fraud upon the firm credit- ors, will not in the absence of further evidence of a fraudulent intent render such partner liable to arrest {Ibid.). In passing upon the sufficiency of the proof presented to entitle the plaintiff to arrest defendant, the rule is that fraud is not to be presumed, but must be proved, and facts and cir- cumstances must be shown necessarily tending to establish a fraudulent intent. If the evidence is capable of an interpreta- tion equally consistent with innocence as with guilt, the former meaning must be given to it. Morris v. Talcott, 96 N. Y. 100. § 230. How this section bears upon the pleading. — This section introduces a departure from. one of the general rules of pleading by permitting the insertion in the complaint ■of matters not essential to the statement of a cause of action, but rendered by the statute essential in the instances prescribed to the statement of a case in which the defendant may be arrested. These matters are issuable. They may be contro- verted in the answer and must then be established upon the trial. Roeber v. Dawson, 15 Civ. Pro. 417 ; Hillis v. Bleckert, 53 Hun 499. The action, though based on contract, by these addi- tional allegations is really converted into an action in tort. But if the complaint in the action so brought on contract does not contain the additional allegations required, the defendant 212 ARREST PENDING THE ACTION. [CH. VIII. cannot be arrested either on mesne process or on final judg- ment. The test of the right of arrest is therefore now found in the allegations of the complaint. Hillis v. Bleckert, 53 Hun 499. As to the mode of pleading, it has been held in each of the cases above named that it is not enough simply to plead in the language of the statute; the facts must be stated constitut- ing the various matters necessary to be alleged and proved as entitling the plaintiff to the right of arrest. Hoboken Beef Co. v. Loeffel, 23 Abb. N. C. 93 ; New Haven Web Co. v. Ferris, 16 Civ. Pro. 265 ; Hillis v. Bleckert, 53 Hun 499; Moffattw. Fulton, 56 Hun 344; Bartlettv. Sutornis, 17 Civ. Pro. 259. The statute relieves the plaintiff who thus frames his com- plaint from the consequence which might otherwise result from bringing his action upon the tort andthus by an election cutting himself off from a resort to his contract rights in case of failure in establishing the fraud, since the statute provides under the second subdivision that a judgment for defendant is not a bar to a new action to recover the money or chattel; and under subdivision fourth, that a like judgment shall not be a bar to recover upon the contract only. § 231. Substituted provision for writ of ne exeat. (Co. Civ. P. § 550.) — Section 550 is a substitute for the writ of ne exeat, which is abolished by § 548. The writ of ne exeat was in early times a high prerogative writ issuing for political pur- poses only to forbid the departure of a subject from the realm. Afterward it was applied as an aid in chancery and was used to prevent the departure of a defendant and to obtain bail in equity. Its use in chancery in this State was continued after the act to abolish imprisonment for debt (§ 1831 ; Brcnvn v. Haff, 5 Paige 235), and even after the Code of Procedure the power of the court to issue this writ was maintained by the Supreme Court {Collins v. Collins, 80 N. Y. 24), although a con- trary view was entertained by the Superior Court (2 Sandf. 626 ; Ensign v. Nelson, 14 Civ. Pro. 438). The cases in which the writ might issue under the former practice will be found in notes to Mitchell v. Bunch (2 Paige 606, 617) and Brown v. Haff (5 Paige 239, Rapalje's Edition), and in the opinion of Edmonds, J., in Forrest v. Forrest (5 How. Pr. 125). The cases in which a judgment may be enforced by proceed- ings for contempt are stated in § 1241. § 232.J PRIVILEGE FROM ARREST. 213 § 232. Privilege from arrest. (Co. Civ. P. §§ 553—555.) — A woman cannot be arrested on mesne process except — (1), "When the order can be granted only by the court"; that is, in the case provided for by § 550 {Dubois v. Hole, 2 Vernon 613, note); or (2), in an action to recover damages for "A wilful injury to person, character, or property " {Duncan v. Katen, 6 Hun 1, affi'd 64 N. Y. 625). Where a clerk embezzled securities from his employer and delivered them to defendant, who refused to sur- render them, it being her intention to abscond with the securi- ties, this was regarded as a wilful injury to property within this section. Duncan v. Katen, supra. Since a married woman may now be sued alone for her tortious acts, it is said that she may be arrested, though the rule was otherwise at common law. Muserv. Miller, 12 Abb. N. C. 305. A lunatic, idiot, or infant under the age of fourteen years, if arrested, may be discharged from arrest as a privileged per- son in the discretion of the court (§ 554). An infant who makes false statements as to his property when buying goods other than necessaries, cannot be made liable to arrest by bringing the action in fraud. Taylor v. Van Keuren, 54 How. Pr. 25. The reasoning of this case is that the contract being voidable, and the infant not being liable to suit, the element of injury is lacking. When the infant obtains goods by falsely representing him- self to be of full age, the weight of authority is said by Judge Rumsey to be in favor of holding the infant liable. 1 Rum- sey's Prac, p. 407, citing 1 Daly 334 ; 5 Hill 391 ; 46 How. Pr. 426 ; contra, 5 Sandf. 224. Members of either branch of Congress when in attendance are privileged from arrest (U. S. Cons., Art. 1, § 6; 7 Wal. 482). So is a member of the State legislature while in attendance, except in a suit brought against him for a forfeiture, misde- meanor, or breach of trust in any office of public trust held by him (1 R. S. 154, §6; Birdseye, 1807, §9)- He enjoys the same privilege for fourteen days previous to the session, and also while going to and returning from such session not ex- ceeding fourteen days, and also for the same period of time during an adjournment, and when absent on leave ; and no officer of either house is liable to arrest while in actual attend- ance upon the house (1 R. S. 154, § 10 ; 55 Barb. 625). Pro- 214 ARREST PENDING THE ACTION. [CH. VIII. cess cannot be served on an elector on election day (Laws of 1842, ch. 130, tit. 1, § 4; Birdseye, p. 926, § 1). Nor can members of the State militia be arrested while going to, remaining at, or returning from any place at which they may be required to at- tend for military duty (Laws of 1883, c. 299, § 143; Birdseye, p. 1968, § 143). So also soldiers and marines in the United States service during their term of service unless upon a debt contracted before enlistment and amounting to $20 when contracted (R. S. U. S., §§ 1237, 1610). In the case of foreign ministers and their domestics, the statute of the United States provides that when- ever any writ or process is sued out or prosecuted by any per- son in any court of the United States, or of a State, or by any judge or justice, whereby the person of any public minister of any foreign prince or State authorized and received as such by the President, or any domestic or domestic servant of any such minister is arrested or imprisoned, or his goods or chattels are detained, seized, or attached, such suit or process shall be deemed void. The name of the servant must first be registered in the Department of State. This privilege does not extend to a case where the person against whom the process is issued is a resident of the United States in the service of a public min- ister unless the debt was contracted before he entered upon such service (R. S. U. S., § 4065). A person subpoenaed as a witness in a case where his attend- ance may be enforced by attachment is privileged from arrest in a civil action or special proceeding while going to, remain- ing at, or returning from the place where he is required to attend (Code, § 860; 11 Hun 474). A person who is enticed into the State for the purpose of a civil arrest cannot be held upon the application of one who was a party to bringing him into the State (51 How. Pr. 172). Parties to an action are exempt from arrest while going to, remaining at, and returning home from the court or place where the judicial proceeding is had (1 Daly 401 ; 7 Hun 83)- A policeman in New York city, while actually on duty, is not liable to arrest in civil process (Laws of r882, ch. 410, sec. 275; 15 Abb. Pr. 290), nor an officer of a court of record (§ 565). A prisoner or the officer having him in custody is not liable to arrest in a civil action while passing through another county (Code, § 119). But a person brought into the State on an ex- §§233, 234-J ORDER OF ARREST. 21 5 tradition may be arrested in a civil action (59 N. Y. no ; 8 N. Y. Sup. 667). Exemption from arrest is a personal privilege, and may be waived (15 Barb. 26), but giving bail is not a waiver (7 Hun 83). § 233. Order of arrest — When and by whom granted. (Co. Civ. P. §§ 556, 557.) — An order of arrest, under §550, can be granted only by the court, and is always in its discretion ; and may be granted at any time either before or after final judgment, unless the payment of the judgment has been secured on appeal (§ 551). An order in any other case must be obtained from a judge of the court in which the action is brought or from any county judge (§556), and may be granted at any time before final judgment, but cannot be served after final judgment (§551). And when the order of arrest was granted after the trial and decision, but before the judgment was entered, it was held to have been in time (94 N. Y. 594). In the first district the order, under § 550, may be made by a judge out of court (26 Hun 542), although not in other parts of the State (§ 770). § 234. Proofs necessary to procure order of arrest. (Co. Civ. P. § 557.) — It is not necessary that the plaintiff should present a complaint on making application for the order. The section uses the word " affidavit " only, but a verified complaint is included in the word "affidavit" (§3343, par. 11). The affi- davit may be made by the plaintiff or any other person, and if the order is applied for under §549, it must show that a sufficient cause of action exists under that section. The affidavit must show the facts upon which the judge can determine whether such a cause of action is made out, and the facts must be shown as a general rule by the oath of those who are cognizant of them. It is said that "no man should be arrested civilly upon mere information and belief." Mere information and belief is not proof or evidence in any legal sense, or, as was said in Mowry v. Sanborn (65 N. Y. 581), "it may as a general rule be safely affirmed that in the sense of the law a general assertion of a fact in an affidavit upon information and belief proves nothing." Martin v. Gross, 16 Civ. Pro. 235. But statements upon information and belief may be sufficient 2l6 ARREST PENDING THE ACTION. [CH. VIII. where the sources of the information and the grounds of the belief are stated, but then the residence of the informants and the reason why their affidavits cannot be obtained should be stated. Jordan v. Harrison, 13 Civ. Pro. 447. In such a case it should appear how the information was derived, and the terms, as near as can be, in which it was communicated, and why the person communicating did not himself make the affidavit (11 How. Pr. 254; 25 How. Pr. 419). When the information is de- rived from written instruments, the papers themselves, or au- thenticated copies thereof, should be furnished, if they can be procured (16 Abb. Pr. 295). When the charge is that the defendant has obtained property or goods on credit by false representations, the particular rep- resentations must be set out and their falsity must be shown by proofs. Mere general averments, as, that one obtained the goods by false representations, is not enough (17 Abb. Pr. 163). So, if the ground of arrest is that the defendant has assigned or secreted his property with intent to defraud his creditors, the facts upon which this conclusion is sought to be supported must be set forth (9 Barb. 440). § 235. Undertaking on arrest. (Co. Civ. P. § 559.) — When the facts stated in the affidavits are sufficient to give the court jurisdiction to grant an order of arrest, the warrant protects the parties against an action for false imprisonment (97 N. Y. 590). Hence a defendant would have no redress when the papers upon which he was arrested were regular and sufficient on their face, even though he should succeed in showing their falsity. The Code therefore provides for the giving of an undertaking to indemnify the defendant against the costs and damages he may sustain if the plaintiff fails to establish his cause of action or his right to the warrant. The penalty of the bond is intended to cover these costs and damages. It has been held that the term "costs" does not mean the general costs of the action, but the expense and damage which the arrest may have occasioned. Sutorius v. North, 20 Civ. Pro. 162; Sperryv. Hellma?i, Id. 218. Hence it is no defence to the sureties on the undertaking that the defendant has paid the general costs of the action or any part of them. (Same cases, but see Bamberger v. Kahn, 43 Hun 411 ; s. c. 6 State R. 707 ) The plaintiff cannot be one of the sureties (9 State R. 728), §§ 236, 237-] ORDER OF ARREST. 217 but the undertaking is not invalidated by his signing with other sufficient sureties (33 Hun 114). When the warrant directs the arrest of two defendants, the aggregate amount of bail for both fixes the sum upon which the amount of the undertaking is to be based (11 Civ. Pro. 433). If the bond is defective in form or insufficient in amount, it may be amended by the substitution of a proper bond (20 Hun 562; n Civ. Pro. 433). The sureties must make affidavit as required by §812. When the order is granted under § 550, the undertaking may be dispensed with; but if required, its form and the security must be such as the court requires (§560). In such a case, when the undertaking presented is approved by the court, that is sufficient. Ensign v. Nelson, 14 Civ. Pro. 438. §236. Order of arrest. (Co. Civ. P. §561.) — Rule 13 requires that every order of arrest shall briefly state the grounds on which it is granted. It has been held that the requirement that the order shall be subscribed by the plaintiff's attorney is imperative (54 How. Pr. 519), but the omission may doubtless be cured by amendment. When the order is made by the court under § 550, the order itself is filed with the clerk, and a certified copy procured and delivered to the sheriff. There must be delivered to the sheriff, therefore, either the original order when made by the judge, or a certified copy when made by the court, and the undertaking and the affidavits and papers upon which the order was granted, and copies of all these papers, which copies are to be delivered to the defendant at the time of making the arrest (§ 562). The order and the papers upon which it was granted, with the undertaking, must be filed by the sheriff with the clerk within ten days" after the defendant is arrested, if he does not give bail ; or if he does, within ten days after the bail justify (§ 59°)- A defect in these requirements is an irregularity which does not entitle the defendant to discharge (55 How. Pr. 1). Defend- ant arrested has twenty days to answer after the arrest (§ 566). § 237. Application to vacate order. CCo. Civ. P. § 567.) — When the order is made under § 549, the motion to vacate may be made at any time before judgment; or if the order is 218 ARREST PENDING THE ACTION. [CH. VIII. made within twenty days before judgment, at any time within twenty days. When the order is made under § 550, within twenty days after arrest. The manner of making the motion is provided by §568. If the application is based upon the insufficiency or irregularity of the papers upon which the order was made, it may be made to the court, or if the order was made by a judge, to the same judge either in or out of court and with or without notice, as he deems proper. If the motion is made upon proofs intended to disprove or meet the charges made by the plaintiff, it must be upon notice, and may be made to the court; or if made by a judge, to any judge of the court on notice. If made on affidavits, it may be opposed by new proofs upon the part of plaintiff tending to sustain any ground of arrest stated in the order. The defend- ant may elect whether he will demur to the plaintiff's papers, claiming that they are insufficient to sustain the order, or he may meet them by new proofs, intended to disprove the plain- tiff's statements, or to show affirmatively some reason why the order should be vacated. He may join in his motion to vacate the order, an appli- cation to reduce the bail and to increase the security given by plaintiff (§ 567). When the order is made to accompany the summons, and the complaint is afterward served, the order must be vacated if the gomplaint fails to set forth a sufficient cause of action as required by § 549. When the complaint is demurrable, and does not set out any cause of action, the order cannot be sustained by granting leave to serve an amended complaint (19 Civ. Pro. 121); but when the statements in the complaint charging fraud are im- perfectly made, but the complaint contains averments setting out a cause of action, the plaintiff may be permitted to amend (18 Civ. Pro. 201). § 238. Supersedeas. (Co. Civ. P. § 572.)— If the plaintiff (1) unreasonably delays the trial of the action, or (2) neglects to enter judgment within ten days after it is in his power to do so, or (3) neglects to issue execution against the person within ten days after return of execution against property, or (4) neglects to issue execution against the person within three months after entry of judgment, or. (5) when in general it ap- §§239, 24O.J BAIL UNDER § 573. 219 pears that the party entitled to cause the arrest delays pro- ceedings for the purpose of prolonging the arrest, the defend- ant may be discharged from custody or relieved from the liability to arrest upon motion on notice, unless reasonable cause is shown why the application should not be granted. This section is to be read with §111. The remedy by supersedeas is equally applicable to the case of a plaintiff arrested at the suit of defendant. Longuemare v. Nichols, 18 Civ. Pro. 93. The burden is upon the person issuing execution against the person after the times named, to show reasonable cause for the delay. If that is not done, the supersedeas should be granted. Segelke v. Finan, 22 Abb. N. C. 458. An absence of neglect on the part of the judgment creditor is such reasonable cause. De Silva v. Holden, 11 Civ. Pro. 404 ; People v. Grant, 13 Civ. Pro. 209. When the application for the supersedeas is made on the ground of unreasonable delay of. the trial, the fact showing such delay must be^ehown affirmatively. Havemeyer Sugar Ref. Co. v. Taussig, 44 Hun 475. Delay on the part of a referee in deciding an action will not entitle the defendant to relief under this section. Lampman v. Smith, 17 Civ. Pro. 19. BAIL. The defendant having been arrested may pursue one of three courses: (1), He may give bail under § 573, or make a deposit; (2), he may give a bond to the jail liberties, or (3) he may remain in custody. § 239. Bail under § 573. — The defendant has an absolute right to give bail in every case, except when he is arrested on contempt. If the sheriff refuses to accept a sufficient bond, he is liable to an action. Richards v. Porter, 7 John. 137. The amount of bail is in the discretion of the court below. The purpose is to fix such a sum that it would be reasonably cer- tain that the defendant can be taken on execution; or if not, that the sureties may be required to pay the amount of the execution. People v. Tweed, 5 Hun 382; s. C. 63 N. Y. 202. § 240. Bail to jail liberties. (Co. Civ. P. § 574.)— This section is to be read in connection with § 149. Levy v. Salomon, 105 N. Y. 529. Section 574 provides for the case where the 220 ARREST PENDING THE ACTION. [CH. VIII. defendant is in confinement under an order of arrest, and judg- ment has been entered, but no execution issued, and provides that in such a case the debtor has his election to give bail or a bond for the liberties. § 241. Defendant's undertaking and justification. (Co. Civ. P § 575.) — The conditions, — 1. e., the terms of the bail bond, — depend upon the character of the action in which the defendant is arrested. (1). Upon an order of arrest (substi- tuted for a tie exeat) in an equity suit, the obligation of the bail is that the defendant will obey the direction of the court, or of an appellate court contained in an order or judgment requir- ing him to perform the act specified in the order, or in default that he will hold himself amenable to proceedings to punish him for the omission. (2). In an action to recover a chattel, for delivery or payment. (3). In any other case that the de- fendant will at all times render himself amenable to any man- date which may be issued to enforce a final judgment against him in the action. " No sheriff or other officer shall take any bond, obliga- tion, or security by color of his office in any other case or manner than such as are provided by law; and any such bond, obligation, or security taken otherwise than as herein directed shall be void" (2 R. S. 286, sec. 59). Hence, the undertaking taken by the sheriff, unless such as the statute requires, is void. As where, in an action to recover personal property, the sheriff took a bail bond in the ordinary form that the defendant would hold himself amenable to pro- cess, the bond was held void in an action to enforce it against a surety. Cook v. Freudenthal, 80 N. Y. 202. In Haberstro v. Bedford (118 N. Y. 187), the undertaking was given under subdivision 3, conditioned that defendant "shall at all times render himself amenable to the process of the court during the pendency of the above entitled action, and to such as may be issued to enforce the judgment therein"; it was held that the obligation imposed no burden in addition to that authorized by law. Bonds which are unauthorized under the statute may, in some instances, be enforced as good common- law obligations. See Toles v. Adee, 84 N. Y. 224, discussing the prohibition on bonds taken by a sheriff colore officii ; Goodwin v. JBvnzl, 102 N. Y. 224; Carrv. Sterling, 114 N. Y. 558. §§ 242, 243-] QUALIFICATIONS OF BAIL. 221 Until the bail has justified in the manner provided by the statute, the sheriff remains liable as bail (§587). McKenziev. Smith, 48 N. Y. 143. The penalty of the bail bond is the amount to which the defendant is held to bail (6 Wkly. Dig. 55), and the bond should be joint and several in form (§812). It is not necessary that the undertaking should be approved or accompanied by affi- davits showing the financial responsibility of the parties offered as bail, but the sheriff may require the officer taking the acknowledgment of the undertaking to examine the per- sons offered as bail concerning their property and circum- stances (§576). This examination must be reduced to writ- ing, subscribed by the bail, and annexed to the undertaking. Within three days after the bail is given, the sheriff must deliver to the plaintiff's attorney copies of the order of arrest, return, and undertaking (§577). The plaintiff's attorney within ten days thereafter must serve upon the sheriff a notice that he does not accept the bail, otherwise he is deemed to have accept- ed them, and the sheriff is exonerated from liability (§577). Within ten days after the receipt of the notice the sheriff or the defendant may serve upon the plaintiff's attorney notice of the justification of the same, or other bail, before a judge of the court or a county judge at a specified place and time not less than five nor more than ten days thereafter, the place to be in the county where one of the bail resides or where the defendant was arrested (§578). §242. Qualifications of bail. (Co. Civ. P. §579.)— A free- holder is one who has the legal title to real estate (8 Hun 566). A householder is one who leases the whole or a portion of prem- ises, either for a place of business or residence (33 How. Pr. 323). An attorney cannot be bail (Rule 5). That property has been transferred to the bail to enable them to justify is no disqualification, though possibly it might be if the property was transferred by defendant to bail. People v. Ingersoll, 14 Abb. N. S. 23. § 243. Justification of bail. (Co. Civ. P. § 580.)— If coun- sel have stipulated for an adjournment of the justification, the sheriff is liable if he remands the defendant to jail (47 N. Y. Super. 494). 222 ARREST PENDING THE ACTION. [CH. VIII. The sheriff is exonerated from liability when the judge finds the bail sufficient, endorses his allowance upon the undertak- ing, and causes it to be filed (§ 581). The justification is not complete until the requirements of this section are fulfilled (12 How. Pr. 94). § 244. Deposit. (Co. Civ. P. §§ 582-586.)— It was held in Hermann v. Aaronson (8 Abb. Pr. N. S. 155) and Cotmnercial Warehouse Co. v. Graber (45 N. Y. 393) that money deposited in lieu of bail might be applied in payment of the judgment, though defendant had complied with all the requirements of law respecting the arrest, and that after judgment the court could not order the money to be returned to a third party who had in fact deposited it. Section 586 was intended to obviate the hardship of that rule, and now a friend can safely lend a defendant who has been arrested the amount of bail fixed in the order, taking contemporaneously the written direction specified in this sec- tion (17 Civ. P. 428 ; 13 Civ. P. 69). The money will then stand merely in the place of bail, to be returned whenever bail would be exonerated. § 245. Liability of sheriff. (Co. Civ. P. §587.)— In Arteaga v. Conner (88 N. Y. 403), Earl, J., gives the following summary of the provisions of the Code: "When the sheriff makes the arrest if the defendant offers sufficient bail, he must take it and discharge him. It is not discretionary with him whether or not he will take bail, — he is bound to take it; and if he refuses, acts oppressively, or declines to accept reasonable bail, he can be held responsible for his misconduct in some form. As the bail is in the first instance for his protection, he must see to it that it is sufficient, and for that purpose make the necessary examination and inquiry. He must satisfy him- self that the persons taken as bail are of sufficient pecuniary responsibility to indemnify him against loss. If the plaintiff in the action fails within the time named in § 192 to give notice that he does not accept the bail, he is deemed to have accepted it, and the sheriff is exonerated. If he gives the notice, then the sheriff for his own protection, or the defendant's at- torney, or both of them, may by notice require the bail to justify; and if no such notice be given either by the sheriff or § 245-J LIABILITY OF SHERIFF. 223 the defendant's attorney, and thus the bail fail to justify, or if the notice be given and the bail fail to justify, then under § 201 of the Code the sheriff himself becomes liable as bail, and his liability as bail does not spring into existence until such failure to justify. Until such failure he cannot rearrest the defendant,'' but thereafter he becomes liable as bail, and may take the defendant into custody without process (9 How. Pr. 188; 10 Abb. 256; 31 N. Y. 255). After the defendant has given bail, and before a failure to justify, the sheriff cannot arrest the principal. Arteaga v. Conner, 88 N. Y. 403. If the defendant escapes before bail is given, or if the sheriff permits the defendant to go at large without giving bail, or making a deposit, he becomes liable as bail himself. Bensel v. Lynch, 44 N. Y. 162. This is not an absolute liability, but may be avoided by the same steps that bail may take to avoid liability, namely, by a surrender of the principal. The sheriff makes such surrender by simply taking the principal into custody. Brady v. Brun- dage, 59 N. Y. 310. Hence, it will be a defence to an action brought against the sheriff for an escape that he has surren- dered the principal before the time to answer (§591). Observe the distinction between the liability of bail and the liability of sureties on a bond for jail liberties (§ 160). In the latter case, to exonerate the bail, a rearrest or surrender must be had before the action is commenced. In an action against the sheriff on his liability as bail, the measure of damage is the amount of the execution (Metcatf v. Stryker, 31 N. Y. 255), and the sheriff cannot reduce the dam- ages by showing the insolvency of the debtor. But in an action against the sheriff for an escape where the prisoner is in custody under mesne process, or in consequence of a surren- der, the sheriff is answerable only to the extent of the damages (§ 158). Bensel v. Lynch, 44 N. Y. 162. Apparently, if a defendant were permitted to go at large, after his arrest on an order of arrest, the plaintiff would have his choice of remedies. He might sue for an escape, and in that case the sheriff could defend on the ground of the defend- ant's insolvency. If he chose, however, to hold the sheriff on his liability as bail, the suit could be brought only after an execution returned unsatisfied, and the sheriff might surrender before answer. 224 ARREST PENDING THE ACTION. [CH. VIII. § 246. Charging and discharging bail. (Co. Civ. P. §§ S9 1 ) S9 2 > S93-) — There seems to be a question whether bail who have been indemnified can exonerate themselves by sur- render of the principal. Mills v. Hildreth, 7 Hun 298. A de- fendant who has been surrendered is entitled to be discharged upon tendering a new bond (58 How. Pr. 169). Bail may arrest the defendant. In Nicolls v. Ingersoll (7 Johns. R. 145), the rights of bail are discussed, and it is there held that bad may depute another to take and surrender their principal, and they or the person so deputed may take the principal in another State at any time, including Sunday, and at any place, and that bail may break open the outer door of the house in order to take the principal. These rights flow from the legal rela- tion of bail to the principal. The principal is in the con- structive custody of the bail everywhere and at all times, and the bail have the right to transform the constructive into an actual custody at any time. § 247. Execution before action against bail. (Co. Civ. P- § 597-) — The sheriff's return "not found," is conclusive in an action against bail. If the return is false, the bail have a right of action against the sheriff. Cozine v. Walter, 55 N. Y. 304. § 248. Death — Discharge of principal — Surrender. (Co. Civ. P. § 601.) — A motion by bail is the proper course if they desire to be exonerated ; and on such motion, whatever ques- tion arises on the judgment or proceedings in the action touch- ing the liability of bail must be decided. Obregon v. De Mier, 54 How. Pr. 390. On the death of the principal, bail will be exonerated on motion (1 Hilt. 550). On an application for further time to surrender the defendant, it is necessary to show that the bail is not indemnified (12 Abb. Pr. 81). But upon cause shown, furnishing a substantial and sufficient excuse, the surrender will be permitted after time to answer has expired. CHAPTER IX. INJUNCTION. CHAPTER VII., TITLE II., CODE OF CIVIL PROCEDURE. § 249. Definition. — An injunction order is a mandate operat- ing in personam, and requiring the person to whom it is directed, to do, or to refrain from doing, a particular thing (High on Injunctions, §1). Injunctions are known as mandatory or preventive, accord- ing as they command the defendant to act, or to refrain from acting. The jurisdiction of equity by way of mandatory injunction is rarely exercised, and such injunctions are seldom allowed before final hearing; but special instances of such injunction orders pendente lite may be cited, as where the injunction order restrained the defendant from refusing, neglecting, or omit- ting to pay over certain moneys, which in effect manifestly commanded the payment to be made {Hanover Fire Ins. Co. v. Germania Fire Ins. Co., 33 Hun 539), or where a mandatory in- junction was granted to compel a racing association to permit a horse to run in a race {Corrigan v. Coney Island Jockey Club, 40 State R. 142). Injunctions are, also, interlocutory or perpetual. Interloc- utory injunctions are such as are to continue until the hear- ing of the case upon the merits, or, generally, until further order. Perpetual injunctions are such as form part of the decree made at the hearing upon the merits, whereby the defendant is perpetually inhibited from the assertion of a right, or perpetually restrained from the commission of an act which would be contrary to equity and good conscience. The perpetual injunction is in effect a decree, and concludes aright. The interlocutory injunction is merely provisional in its nature, 15 (225) 226 INJUNCTION. [CH. IX. and does not conclude a right. The effect and object of the interlocutory injunction is merely to preserve the property in dispute in statu quo until the hearing or further order. In inter- fering by interlocutory injunction the court does not in general profess to anticipate the determination of the right, but merely gives it as its opinion that there is a substantial question to be tried, and that till the question is ripe for trial a case has been made out for the preservation of the property in the mean- time, in statu quo. This title of the Code has to do only with temporary injunc- tions. " An injunction by order is a provisional remedy, and temporary in its character. It assumes a pending litigation in which all questions are to be settled by a judgment, and operates only until that judgment is rendered. If by that a permanent injunction is granted, the temporary one is of course ended, and equally so if a permanent injunction is in the end denied." Jackson v. Bunnell, 113 N. Y. 216. After a judgment which does not award a permanent injunction, and which disposes of the action, there can be no permanent in- junction granted upon affidavits (Ibid.). But an injunction order may be made after an interlocutory judgment, as in Travis v. Myers (67 N. Y. 542), which was an action against an assignee for the benefit of creditors to close up a trust. After a decree for an accounting, an injunction re- straining suits at law was granted on motion. § 250. Granting injunction is discretionary. — The lan- guage of § 602 is permissive, and the granting or refusing of an injunction rests in the sound discretion of the court or judge, to be exercised according to the circumstances of each case. / The discretion of the court of original jurisdiction in grant- ing, continuing, or dissolving a temporary injunction will not > be reviewed by the Court of Appeals. Strasser v. Moonelis, 108 N. Y. 611 ; Hud.Riv. Tel. Co. v. Watervlitt Tur. & R. Co., 121 N. Y. 397. To this rule the only exception is, that, when under §603 the right to an injunction depends upon the nature of the action, the Court of Appeals will review an injunction order granted in such a case when it appears from the complaint that the plaintiff cannot be entitled to the relief demanded [Afc- Henry v. Jewett, 90 N. Y. 60), or where, as was said in Hatch v. Telegraph Co. (93 N. Y. 640), it plainly appears on the face of §251.] INJUNCTION PENDING APPEAL. 227 the complaint that the case is one in which by settled adjudi- cations the plaintiff upon the facts stated is not entitled to final relief. In exercising its discretion in granting or refusing an injunc- tion, the court may regard the nature and extent of the injury which the plaintiff would suffer if withheld, and also its conse- quence to the defendant if granted, as, for instance, if the defend- ant is about to enter upon the destruction of property, demo- lition of a building, or the erection of a permanent structure, and his right is not clear, and the loss to be sustained by the delay in proceeding with the work can be made good, these would be considerations affecting the discretion of the court. See Rector, etc. v. Keech, 5 Bosw. 691 ; 19 Barb. 371; Bronkv. Riley, 50 Hun 489. As a general rule, a clear legal and equitable right, free from reasonable doubt, must be shown to authorize a preliminary inj unction (49 Super. 1 1 6). And as a rule, the injury complained of must be without adequate redress in any other way. Savage v. Allen, 54 N. Y. 458. It ought to appear to be reasonably probable that the plain- tiff will ultimately prevail in establishing his right to a perpet- ual injunction; but when the defendant can be fully indemni- fied, and the plaintiff cannot, this rule may be too stringent. Finger v. City of Kingston, 29 State R. 702. So, when the act complained of as injurious has been entered upon, and is continuing, the court may not grant an injunc- tion, though it might have done so if the application had been made before the act had been done. Thus, an injunction restraining defendant from maintaining a sign in front of plaintiff's sign on certain premises, was denied after the sign had been put in place. Stirn v. Nash, 19 Civ. Pro. 184. § 251. Power to continue injunction pending appeal. — A temporary injunction is abrogated by a final judgment in the action. The fact that an appeal has been taken from the judgment does not change or modify the legal effect of the judgment in this particular. Gardner v. Gardner, 87 N. Y. 14. And the court has no power after judgment against plaintiff and pending an appeal by him to grant an injunction or to revive or continue a temporary injunction previously granted. Spears v. Mathews, 66 N. Y. 127. 228 INJUNCTION. [CH. IX. § 252. Injunction when the right depends upon nature of action. (Co. Civ. P. §603.) — This section by its language requires : (1) A complaint (a) from which it appears that defendant (a) demands and (b) is entitled to a judgment against defendant restraining the commission or continuance of an act, and (3) that the commission or continuance of the said act during the pendency of the action would produee in- jury to the plaintiff. The right to the order under this section depends upon the nature of the action, and the nature of the action can only be ascertained from the complaint. Hence the necessity for the complaint as the basis of the order. Roosevelt v. The Mayor, 1 How. Pr. N. S. 205. The complaint must contain — (a), a statement of a cause of action entitling plaintiff to a permanent injunction ; (J>), a demand for a permanent injunction as part of the relief (4 How. Pr. 31; 7 How. Pr. 481). Under this section, therefore, the plaintiff must state an equitable cause of action entitling him to an injunction (Reu- bens v. Joel, 13 N. Y. 488), and he becomes entitled to a pre- liminary injunction whenever the allegations of the complaint, if proved upon the trial, would entitle him to recover, provided it also appears that the continuance of the act complained of would produce an injury to the plaintiff. Hudson Riv. Tele- phone Co. v. Watervliet Turnpike Co., 29 State R. 22. In the case cited, plaintiff, a telephone company, already in operation, com- plained that the wires conveying the electric current used by the defendant, an electric railroad company, in process of con- struction, were so arranged as to seriously interfere with the use of the plaintiff's wires for telephone purposes, and praying for a permanent injunction. A preliminary injunction was granted. The facts entitling the plaintiff to relief by permanent injunc- tion must be averred in the complaint. Mc Henry v. Jewctt, 90 N. Y. 58. If they do not so appear, the plaintiff will not be entitled to the preliminary order, although the facts are made to appear by affidavit. Cushing v. Ruslander, 49 Hun 19. Hence, if the complaint contains all the facts entitling the plaintiff to an injunction under §603, and if it is verified upon knowledge, the order may be made upon the complaint alone. Stow v. Chapin, 21 State R. 38 ; Rome, etc. R.R. Co. v. Rochester, § 2S3-] EXTRINSIC FACTS. 229 46 Hun 149. But if any of the allegations of the complaint are upon information and belief, then it must be supported by other affidavits ; but in either event, the complaint itself, whether its allegations are upon knowledge or upon informa- tion and belief, must show that the plaintiff is entitled to a judgment against the defendant restraining the commission or continuance of the act complained of, or a temporary injunction should not be granted. Mc Henry v. Jewett, 90 N. Y. 58. The evidence tending to support the allegations of the com- plaint must be set forth, and mere general conclusions con- tained in the complaint are not enough (90 N. Y. 58). It must appear from the complaint that the plaintiff has made a case of equitable cognizance. Thus, in Thomas v. Musical Mutual P Union (121 N. Y. 45), — where the by-laws of defendant society, of which plaintiff was a member, imposed certain penalties upon members perform- ing in orchestras or bands in which persons not members of the union were engaged, the plaintiff brought his action to have the by-law declared invalid, and to restrain the directors from enforcing it against him, — it was held that no case for equitable interference was made, the plaintiff's remedy being complete at law, and the injury being neither certain nor irrep- arable. See Hurst v. N. Y. Produce Ex., 100 N. Y. 605. § 253. When the right depends upon extrinsic facts. (Co. Civ. P. § 604.) — This section provides for two cases : 1. When it appears by affidavit that the defendant during the pendency of the action is doing or procuring or suffering to be done, or threatens or is about to do, or to procure or suffer to be done an act in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual. We observe with regard to this subdivision — 1st, that it applies to acts done " during the pendency of the action." It is not intended to apply to the case of fraudulent transfers which have been made, and which it is sought to set aside. That remedy is available only to judgment creditors. This subdivision applies to cases of threatened transfers or injuries not yet consummated. Reuben N.Joel, 13 N. Y. 488. See 4 How. Pr. 33. 230 INJUNCTION. [CH. IX. 2d. The act must be respecting the subject of the action. By that is meant the things, — money, lands, chattels, or the like, — in relation to which the suit is prosecuted, or the right which is sought to be enforced. Glen &° Hall Mfg. Co. v. Hall, 61 N. Y. 226, 233. Property which has been attached is not the subject of the action (11 Abb. Pr. 220) 3d. The act complained of must tend to render the judgment ineffectual. 2. The second subdivision provides for an injunction order, when it appears by affidavit that the defendant during the pendency of the action threatens or is about to remove or dis- pose of his property with intent to defraud the plaintiff. (1). An injunction can be granted here, as under the 1st sub- division, only for acts done or threatened during the litigation (6 How. Pr. 341, 456). (2). In a proper case, an injunction may be granted to re- strain the threatened fraudulent alienation by the defendant of his property during the action. 13 Civ. Pro. 449; Malcolm v. Miller, 6 How. Pr. 456 ; Jerome Co. v. Loeb, 59 How. Pr. 508 ; Vermilyea v. Vermilyea, 14 How. Pr. 470. In Campbell v. Ernest (64 Hun 188) it is said that neither subdivision of this section has any application to an action where a money judgment only is sought, but only to actions involving the rights of the parties to something which consti- tutes the subject of the action in respect to which the plaintiff claims some rights and seeks some special relief. It was not the purpose of the statute to enable the plaintiff in an action to collect a debt to restrain the defendant from selling his property during the suit, because that might diminish his chance of collecting his judgment when obtained. In Jerome Co. v. Loeb (59 How. Pr. 509), commenting upon this section the court said that there are two classes of cases provided for : first, one for the disposition of goods, the equitable title to which is in contest ; and second, the general power of the court to restrain a judgment debtor from putting it out of the power of the court to reach his property were he not en- joined. It will be noticed from this examination of § 604, that the majority of instances in which injunctions may be issued, arise under § 603, and that the cases under § 604 are excep- tional. §§254-256.] BY WHOM ORDER GRANTED. 231 § 254. When application for injunction to be made; (Co. Civ. P. § 608.) — The order may be granted to accompany the summons, or at any time after the commencement of the action, and before final judgment. Section 608 is to be read in connection with what has already been said under § 603. § 255. By whom order may be granted. (Co. Civ. P. § 606.) — Except in special instances, the order may be made by the court, or by a judge of the court in which the action is brought, or by the county judge. One of the special cases is § 605, where it is provided that the application must be made to the Supreme Court at General Term, when the injunction restrains a State officer or board of State officers from the performance of a duty imposed by statute or to prevent the execution of the statute. Matter of Comstock, 25 State R. 611. But the mere fact that the legislature directs that certain duties shall be performed by local officer's or boards does not constitute them State officials within this section. 46 Hun 607; People v. Dwyer, 90 N. Y. 402. The court at General Term has power to grant, continue, or dissolve an injunction in the first instance (37 How. Pr. 147); but usually that court will not hear an original application for an injunction. Under §§ 1787, 1806, in actions brought to restrain the illegal acts of officers of a corporation, or to dissolve a corporation, or to sequestrate its property, an injunction order can only be granted by the court. And an injunction order suspending the general and ordinary business of a corporation or of a joint-stock association consisting of seven or more persons, or suspending from office, or restraining from the performance of his duties, a director, trustee, or other officer thereof, can only be granted by the court, and upon proper notice (§ 1809). If such an injunction order is made otherwise than as prescribed in that section, it is void. § 256. When notice required. (Co. Civ. P, § 609.)— The order may be granted upon or without notice, except in special instances. The order can be granted only upon notice against a State officer, or board of State officials (§ 605), to suspend the general and ordinary business of a corporation (§ 1809), 232 INJUNCTION. [CH. IX. and against the board of health of New York city (L. 1882, oh. 410, § 619), and in all cases after answer (§ 609). This section, however, provides that when notice is given, the judge may enjoin the defendant until the hearing and decision of the application (§ 609). § 257. Proofs necessary to procure injunction. (Co. Civ. P. § 607.) — The order may be granted when it appears to the court or judge by the affidavit of the plaintiff or any other per- son that sufficient grounds exist therefor. When the right to the injunction depends upon the nature of the action, a complaint is necessary. Kerr v. Dildine, 6 State R. 163. In other instances, the injunction may be granted with- out a complaint (7 Civ. Pro. 183). The word " affidavit " includes a verified pleading (§ 3343, subd. 11). When the application is made under § 603, a complaint con- taining allegations entitling the plaintiff to relief by injunc- tion must be presented, and the complaint may be accompanied by affidavits making proof of the facts alleged in the complaint, but the affidavits cannot be used to help out a defect in the complaint. Stullv. West/all, 25 Hun 1. The rule with regard to the sufficiency of affidavits upon in- formation and belief is as stated under "Arrest." Such allega- tions are not sufficient to sustain an injunction. Perry v. Volkening, 44 Super. 332. When all the allegations of the com- plaint were sworn to as within the personal knowledge of affiant, and the allegations of the answer were all upon infor-„ mation and belief, it was held that while the answer was suffi-. cient to raise issues for trial, it was not sufficient as an affidavit • to controvert the averments of the complaint. Rome, W. & O. R.R. Co. v. Rochester, 46 Hun 149; citing Mowryv. Sanborn, 65 N. Y. 584, where it is said, " It raay, as a general rule, be safely affirmed that in the sense of the law, a general assertion of a fact in an affidavit upon information and belief, proves noth- " ing. A witness would not be allowed on the trial of a cause in any court to give evidence of a fact which he only knew from information derived from another, or which he simply believed to be true." Where some of the material facts can be shown only by in- formation or belief, owing to the absence or inaccessibility of §§ 258, 259-J FORM OF ORDER. 233 witness, and the necessity for prompt action, the sources of information should be stated, and the reason for not producing the oath of the witness. People v. the Mayor, 9 Abb. Pr. 253. §258. Form of order. (Co. Civ. P. § 610.) — The injunction order must briefly recite the grounds for the injunction. But a failure to comply with the statute in this particular is not jurisdictional. A. & P. Tel. Co. v. B. &> O. R.R. Co., 46 Super. Ct. 377. In stating the grounds for the injunction, it is not enough to repeat the language of the statute, to wit, " that it appears from the complaint that the plaintiffs demand, and are en- titled," etc. Hotchkiss v. Hotchkiss, 16 Civ. Pro. 129. The order should state the specific ground for injunction set up in the plaintiff's papers. The injunction order should show upon its face all the things which it is necessary for the defendant to know in order to obey it, and should plainly indicate to the defendant specifically all the acts which he is restrained from doing. Lyon v. Botch- ford, 25 Hun 57. Its language should be so clear that an un- learned man can understand it without employing counsel (9 Paige 234; 2 Edw. 188). The order is drawn in one of three forms: (1), an absolute injunction order ; (2), an order to show cause why the injunc- tion order should not be made, with a preliminary injunction ; or (3), an injunction order with an order to show cause, or notice of motion. An absolute injunction is the most desirable form for plaintiff, because the defendant is then compelled, if he wishes to vacate the order on affidavits, to make his motion, and serve his affidavits, to which the plaintiff may reply ; whereas, if an order to show cause or notice of motion are employed, the plaintiff must stand upon his own papers, being permitted only to reply as to new matter. § 259. Injunction can only be granted against a party. — The provisions of the Code provide only for an injunction against a party to the action (56 Hun 211), and constructively those who act under the authority of the party. But this rule is subject to some exceptions, as, when the court has jurisdic- tion of the subject-matter of a suit or proceeding, it may enjoin persons not parties to the action from interfering with 234 INJUNCTION. [CH. IX. the property or fund. Thus, when a receiver has been ap- pointed of the assets of an insolvent corporation, creditors not actually parties may be enjoined from interfering with the property of the corporation. Woerishoffer v. North River Con. Co., 99 N. Y. 398. § 260. Service of the order. (Co. Civ. P. § 610.)— The rule requiring service of copies of the papers upon which the order was granted, includes the undertaking. If the papers are not served as required, that is ground for setting aside the service, but not for vacating the injunction (8 How. Pr. 87), and a failure to serve copies of the papers does not relieve the party from the duty of obedience to the injunction. People v. Sturtevant, 9 N. Y. 263. It is further to be observed, that persons who have actual knowledge of the existence of an injunction order are bound by it, although it is not personally served on them. Koehler v. Farmers' and Drovers' Nat. Bk., 6 N. Y. Sup. 47 1 ; Aldinger v. Pugh, 57 Hun 181 ; People v. Brower, 4 Paige 405 ; Hull v. Thomas, 3 Edw. Ch. 236. § 261. Punishment for violation.— Where a party disobeys an injunction order, he renders himself liable to proceedings to punish him for contempt (§ 14; 16 Sta L e R. 35). Persons who assist or abet in the violation of the injunction are also liable to punishment (46 Super. Ct. 377)- It is no defence that the injunction was improvidently issued, if the court had jurisdic- tion to grant it Erie By. v. Ramsey, 45 N. Y. 637. If, how- ever, the court was without jurisdiction, it is otherwise. Peo- ple v. Edson, 52 Super. 53. Advice of counsel is no defence (39 Hun 626-630), though if honestly sought, and given, it may be considered on the question of punishment (43 State R. 49; 7 Paige 364). §262. Security. (Co. Civ. P. §§611-625.) — This article relates first to the security required to be given in an action to stay proceedings in another action. There are three cases : (1), when the action is stayed before trial ; (2), after trial and before judgment ; (3), after judgment. All these relate to actions for a sum of money only. In the first case, the under- taking must be conditioned to pay all damages and costs recov- § 263.J THE ORDINARY UNDERTAKING. 235 ered by defendant in the action stayed, and also all costs and damages which may be awarded to him in the action in which the injunction is issued (§611). In the second case, the plain- tiff must deposit in court a sum sufficient to pay the verdict, report, or decision, and the costs (§ 612). In the third case, the whole amount of the judgment, interest and costs, must be paid into court, or an undertaking in lieu thereof must be given, and the plaintiff must also give an undertaking to pay all dam- ages and costs sustained by defendant in the injunction suit. An injunction staying proceedings in an action of ejectment or dower after verdict, report, or decision can be granted only upon an undertaking to pay all damages and costs which may be awarded in the action wherein the injunction was granted (§616). This includes not only rents and profits, but all waste committed upon the property (§617). When the injunction order is applied for to stay proceedings in another action on the ground that the judgment, verdict, report, or decision therein was obtained by actual fraud, the court may require security in accordance with the general pro- vision (§619), which requires an undertaking on behalf of plain- tiff that he will pay to the party enjoined such damages, not exceeding a sum specified in the undertaking, as he may sus- tain by reason of the injunction, if the court finally decides that he was not entitled thereto (§ 620). It is to be noticed that all these provisions apply to an injunc- tion order made in an action staying proceedings in another action, and have no application to an order staying proceed- ings in the action in which the order is made. In the first four instances (§§611-617), the failure to give an undertaking is a fatal defect (22 Hun 465; 10 Abb. Pr. N. S. 223). § 263. The oWinary undertaking under Co. Civ. P. S620. — In all other cafes, including an injunction staying proceed- ings in another amion on the ground of actual fraud, the ordi- nary undertaking^ider § 620 is all that is required. Instances of injunctions staying proceedings in other actions on the ground of fraud are : Sweetser v. Smith (22 Abb. N. C. 319), which was a creditor's action; so Burns v. Morse (6 Paige 108), which was likewise a creditor's bill to set aside a judg- ment as having been made with intent to defraud creditors. 236 INJUNCTION. [CH. IX. See Parker v. Nevin, 67 N. Y. 554; Cook v. Dickerson, 2 Sandf. 691; Gilman v. Prentice, 11 Civ. Pro. 310. The requirements with regard to undertakings, as to their form and mode of execution, are found at §810 et seq. Where no security is given, the court may permit the defect to be supplied (2 Hun 373). The undertaking must be filed with the clerk of the court (Rule 4), and if not so filed, that will be ground for a motion to dissolve the injunction. Johnson v. Casey, 28 How. Pr. 492. §264. Security in special cases. (Co. Civ. P. § 621.)— There are certain special cases in which the court or a judge is authorized to grant an injunction order without notice. Thus, in actions relating to real property, the injunction order restraining the defendant from the commission of waste or damage to the property, may be made without security (§ 1681). So in actions brought by the people of the State, or by a domestic municipal corporation, or by a public officer in behalf of the people or of such a corporation, the requirements respecting security upon granting a provisional remedy do not apply (§ 199°)- § 265. Damages sustained by injunction. (Co. Civ. P. § 623.) — In the absence of an undertaking, the plaintiff is not liable for the damages sustained by the plaintiff by reason of an injunction order, if he acted in good faith" ~Palmer v. Foley, 71 N. Y. 106. Hence the necessity for the protection of an undertaking as provided by the Code. The application to ascertain the damages under this section can be made only after final judgment. Lawton v. Green, 64 N. Y. 326; Roberts v. White, 73 N. Y. 375. It is not enough that the injunction order has been vacated upon v motion (61 How. Pr. 40), and when an appeal has been taken the defendant cannot proceed to assess his damages pending the appeal. Musgrave v. Sherwood, 76 N. Y. 194. If the judgment finally entered, though for defendant, does not determine the question of the plaintiff's right to the injunc- tion, the undertaking cannot be enforced, since it has not been finally decided that the plaintiff was not entitled to the injunc- tion. Benedict v. Benedict, 76 N. Y. 600. If the action is discontinued by mutual agreement, then, § 265.] DAMAGES SUSTAINED BY INJUNCTION. 237 since the court has not Anally decided that the plaintiff was not entitled to the injunction, there is no liability on the under- taking. Palmer v. Foley, 71 N. Y. 106; Johnson v. Elwood, 82 N. Y. 362. But see Apollinaris Co. v. Venables, 63 Hun 554; s. C. 44 State R. 838. The practice is to move on affidavits, showing the state of the action, for an order of reference or writ of inquiry, as desired, to ascertain the damages. The motion should be on notice, not only to the plaintiff, but to the sureties on the undertaking. If the sureties are notified of the motion, the order of reference should provide that they have notice of the hearing before the referee. Damages cannot be allowed beyond the amount specified in the undertaking. Pacific Mail S.S. Co. v. Toll, 10 Wkly. Dig. 269; Law ton v. Green, 64 N. Y. 326. The direct damages sustained by reason of the injunction should be allowed. This may include counsel fees on the motion to dissolve the injunction. Rose v. Post, 56 N. Y. 603. Expenses incurred in an unsuccessful effort to dissolve the injunction are not allowed as damages. Lyon v. Hersey, 32 Hun 253; Randalls. Carpenter, 88 N. Y. 293. An exception is made when the motion is denied, not on the merits or for irregular- ity, but for the reason that the court in its discretion thinks it advisable to defer the inquiry into the merits until the final hearing. In that case, if the defendant succeeds, the expenses of the motion, and also counsel fees on the trial, are proper items of damage. Andrews v. Glenville Woolen Co., 50 N. Y. 282. Counsel fees on the reference to assess damages may be allowed when an award is made in the reference to the defend- ant. Holcomb v.Rice, 119 N. Y. 598. Counsel fees on the trial of the action are not a proper item of damage against the sure- ties on the undertaking, unless the trial was necessary to get rid of the injunction. Disbrowv. Garcia, 52 N. Y. 654; Newton v. Russell, 87 N. Y. 527. The amount fixed by the reference is conclusive upon the party and his sureties, but payment can only be enforced by an action against the party and the sureties. Lawton v. Green, 64 N. Y. 326; Hovey v. Rubber Tip Pencil Co., 47 How. Pr. 289. Notice of the filing of the referee's report must be given, and unless the opposing party files exceptions within eight days, 238 INJUNCTION. [CH. IX. the report will be confirmed by lapse of time (Rule 30). If exceptions are filed, they must be brought to a hearing upon notice, and an order will then be made by the court either con- firming the report or sustaining some or all of the exceptions. After an order confirming the report has been eittered, any person entitled to the benefit of the undertaking may bring an action thereon without further leave of the court (§ 625). § 266. Vacating or modifying the order. (Co. Civ. P. § 626.) — No judge except the one who grants the injunction order can vacate or modify it ex parte except as prescribed in this section, and when it is made in the first judicial district in an action pending therein, no motion can be made outside of the county of New York for its vacation (§ 769). Koehler v. Farmers' & Drovers' Bk., 14 Civ. Pro. 71, affi'd 17 Civ. Pro. 307. An application to the General Term under this section will not be entertained except in a case of pressing necessity, when the delay which would be occasioned by leaving the party to proceed in the usual method would result in an extreme injury. Gere v. N. Y. Cent, br H. R.R. Co., 38 Hun 231. This section is designed to meet the case where a judge inadvertently grants an injunction in oversight of some statu- tory restriction, or where there is an irregularity in the papers to which it is desired to call his attention. Ordinarily a party must make his application on notice. §267. Vacating injunction on notice. (Co. Civ. P. §627.) — As we have heretofore remarked, the court may grant an absolute injunction or a preliminary injunction with an order to show cause why it should not be continued. If the order is in the latter form, the motion which comes on to be heard is not an affirmative motion by defendant to dissolve the injunc- tion, but a motion by plaintiff to sustain and continue the injunction. In such a case the plaintiff has no right to inter- pose affidavits in answer to the defendant's affidavits, although he may be permitted to do so in the discretion of the court. Cagney v. Fisher, 34 Hun 549. But if the defendant moves on affidavits to vacate the injunction, the plaintiff may interpose answering affidavits. As to the rules governing the decision of the motion, it may be observed that while the general rule is, that where all the § 268.] VACATING INJUNCTION. 239 equities of the plaintiff's case are fully met and denied, the injunction should be dissolved (42 How. Pr. 52; 29 State R. 366), yet, even in such a case, the court may in its discretion con- tinue the injunction if the threatened damage to the plaintiff will be irreparable. Carpenter v. Danforth, 19 Abb. Pr. 225. The discretion of the court at Special Term continuing or dissolving an injunction may be reviewed at General Term, but not in the Court of Appeals, except where it plainly appears on the face of the complaint that the case is one in which, by settled adjudication, the plaintiff is not entitled to final relief. Hud. Riv. Tel. Co. v. Watervliet Turn. &" R. Co , 121 N. Y. 397 ; Young v.Rondout & K. Gas Co., 129 N. Y. 57; s. c. 29 N. E. R. 83. When an appeal is taken from an order vacating an injunc- tion, the appeal does not operate as a continuance of the injunc- tion. Nor can the injunction order be continued on appeal after a judgment dismissing the complaint. Emmons v : Camp- bell, 22 Hun 582; Spears v. Mathews, 66 N. Y. 127. § 268. Vacating an injunction order on giving security. (Co. Civ. P. § 629.) — This section was not intended to compel the court in every instance to accept an undertaking and vacate the injunction. Such a construction would prevent the court from restraining any wrongful act, however inequitable, upon the election of the wrong-doer to give an undertaking. The rule is, that when the plaintiff's right to the injunction is plain, the defendant is not at liberty to insist upon the dissolution of the injunction upon giving security. Thayer v. Rochester City R.R., 15 Abb. N. C. 52; Chamberlin v. B. N. Y. & P. R.R. Co., 31 Hun 339. CHAPTER X. ATTACHMENT OF PROPERTY. CHAPTER VII., TITLE III., CODE OF CIVIL PROCEDURE. §269. General. — We observe generally, — (1). That an attachment against property is a provisional remedy, the pur- pose of which is to seize and hold the property of the defend- ant as a means of satisfying the judgment if it shall finally be awarded in favor of the plaintiff. (2). The proceeding under this title of the Code is the only existing provision for the attachment of property. The some- what similar proceedings allowed under the Revised Statutes and under the non-imprisonment act of 1831 have been re- pealed. (3), The Code attachment operates only in favor of the plain- tiffs in whose behalf it is granted, and not in favor of all or any other creditor of the defendant. Each plaintiff who desires the benefit of the process must apply in his own action for an attachment. He cannot avail himself of an attachment granted on the application of another creditor in another action. (4). The granting of an attachment is discretionary with the court, and this discretion can be reviewed at General Term, but not in the Court of Appeals. The rule is that the Court of Appeals will not interfere with the action of the lower court in refusing an attachment, or of the General Term in setting aside an attachment, unless it appears from the order that it was refused or vacated for want of power; and an order granting an attachment is not appealable to the Court of Appeals unless it appears that it was granted in a case not authorized, or that there is an entire absence of facts justifying it. Allen v. Meyer, 73 N. Y. 1. But a different rule applies when the application is not made by defendant, but by a subsequent lienor. Haebler v. Bernharth, 115 N. Y. 459. (240) §§ 270, 271. J PROPERTY IN CUSTODIA LEGIS. 241 (5). An attachment is in the nature of, but not strictly a pro- ceeding /"// rem. An attachment is issued in a personal action, and service of process is to be made upon the defendant either personally or by publication, but as to non-resident defendant not personally served, the judgment obtained is operative only against the attached property, and is of no' avail as to other property (§ 707). (6). There are some persons against whom an attachment will not issue. The United States statute for the organization of national banks contains a provision that " no attachment, in- junction, or execution shall be issued against such association or its property before final judgment in any suit, action, or proceeding in any State, county, or municipal court " (R. S. U. S. § 5242). In Pacific Nat. Bank v. Mixter (124 U. S. 721) it is said that "all the attachment laws of the State must be read as if they contained a provision in express terms that they were not to apply to suits against a national bank." The State courts hold themselves bound by this decision. Bank of Mon- treal v. Fidelity Bank, 17 State R. 88, affi'd 112 N. Y. 667. An attachment cannot be obtained against the assets of a decedent (9 Wend. 465), but an attachment may be issued against an executor where the obligation is individual, although purporting to be made as executor (18 Civ. Pro. 63 ; 38 Hun 528). § 270. Property in custodia legis. — Property in the cus- tody of the court or of an officer of the court cannot be attached. Thus, goods attached by an officer and in his pos- session cannot be attached by another officer (Baker v. Ken- worthy, 41 N. Y. 215), nor property in the hands of a receiver (Gouvemeur v. Warner, 2 Sandf. 624). § 271. In what actions it may be granted. (Go. Civ. P. § 635.) — The action in which an attachment may issue must be brought to recover a sum of money only as damages for one of the three causes of action mentioned, (1), for a breach of a contract express or implied other than a contract to marry ; (2), a wrongful conversion of personal property; (3), an injury to p.6£&asrf property in consequence of negligence, fraud, or other wrongful act. (1). An express or implied contract. '.'Two kinds of con- 16 242 ATTACHMENT OF PROPERTY. [CH. X. tracts are contemplated by § 635; express contracts, which are such as are voluntarily made by the parties thereto, and im- plied contracts, which though not expressly made by the par- ties are made by the law, when it, enforcing a sound morality and a wise public policy acting upon principles of equity and justice, imposes upon a party an obligation to pay a debt or discharge a duty." Gutta Percha Mfg. Co. v. Mayor, etc., 108 N. Y. 276. In the case cited an action upon a judgment recovered in tort was held to be an action in contract within this section. An action for the price of goods sold is an action on contract, although it is alleged in the complaint that the sale was induced by fraudulent representations. Gladke v. Maschke, 35 Hun 476 ; Whitney v. Hirsch, 39 Hun 325 ; 27 Hun 234, criticised in 35 Hun 477. (2). Wrongful conversion of personal property. (3). An injury to personal property in consequence of negli- gence, fraud, or other wrongful act. An injury to property is an actionable act whereby the estate of another is lessened other than a personal injury or a breach of contract (§ 3343, par. 10). One who has been induced to make advances on the faith of forged paper and has sustained an injury to personal property, is entitled to an attachment under this subdivision (Bogart v. Dart, 25 Hun 395). So an attachment may be granted in an action to recover damages for obtaining goods by false repre- sentations. Champion Card cV P. Co. v. Searing, 47 Hun 237 ; Whitney v. Hirsch, 39 Hun 325. But an attachment cannot be issued in an action for equitable relief (101 N. Y. 5), or in an action for personal injuries (32 How. Pr. 280). \J ; ' While this section provides that an attachment ■ may be granted "in an action," it frequently happens that the war- rant is applied for before any action has been commenced and as the first step in the action. It has been held that it is not necessary that it should appear in the papers on the applica- tion that the action has been commenced by service of the summons. It is enough if it is stated that the plaintiff is about to commence an action for the cause stated. Stoiber v. Thudium, 44 Hun 70; Amcr. Exch. Nat. Bank v. Voisin, 44 Hun 85. § 272. What must be shown to procure the warrant. (Co. Civ. P. §636.) — The plaintiff must show by affidavit, (1), § 272.] WHAT SHOWN TO PROCURE WARRANT. 243 that one of the causes of action above stated exists against the defendant; (2), that he is entitled to recover a sum stated "over and above all counterclaims known to him"; (3), one of the grounds of attachment specified in §636. These several mat- ters must be made to appear by affidavit. A verified pleading is regarded as an affidavit (§3343, subd. 11). The affidavit need not be made by plaintiff; it maybe made by any person who is familiar with the facts (38 Hun 202), and it may be necessary to present several affidavits in order to set out all the facts. Here again, as in previous instances, we observe that affidavits upon information and belief only are not sufficient. Steuben Co. Bk. v. Alberger, 78 N. Y. 252. But the rule excluding hearsay evidence is not strictly applied to affidavits in interlocutory proceedings and matters of practice. In such matters the evidence is sufficient if con- vincing and satisfactory. All that is required is that the information furnished by the affidavit shall be such that a person of reasonable prudence would be willing to accept and act upon it. The mere averment, however, of a fact upon information and beljef without more is not sufficient, but the sources of the information and the grounds of the belief must be stated so that the judicial officer to whom the affidavit is presented may judge whether the information and belief have a proper basis to rest on; and if he is satisfied that they have, then the affidavit Js sufficient to invoke the jurisdiction and to be submitted to his determination. Buellv. Van Camp, 119 N. Y. 160. In the case cited the sources of information and belief were stated to be affidavits on file in another action, copies of which were attached, and this was held sufficient. The ques- tion may arise how far an affidavit sworn positively by a per- son who is not shown to have been in a position to have personal knowledge of the subject is competent evidence. The rule seems to be that, when the affidavit is not made by a party to the transaction, such facts must be presented as will enable the court to see that the affiant was in a position to know that which he states. Buhl v. Ball, 41 Hun 64. See Manufacturers' Bk. v. Hall, 60 Hun 466 ; Hodgman v. Barker, 60 Hun 156. Thus when the affidavit is made by an agent or by the officer of a corporation, it must appear that the agent or officer had personal knowledge of the transactions sworn to, or the means of his information and belief must be stated. Marine 244 ATTACHMENT OF PROPERTY. [CH. X. Bk. v. Ward, 35 Hun 395. It is likewise to be observed that it is not sufficient merely to aver conclusions; the evidence from which the court may draw the necessary conclusions must be set out. Mechanics' and Traders' -Bk, v. Loucheim, 55 Hun 396. But in this respect there is a distinction between the aver- ment of the facts constituting the cause of action and the facts tending to show the grounds of attachment, as that the defendant has absconded or made a fraudulent conveyance. It is only necessary to aver the facts constituting the cause of action with the fullness that would be requisite in a properly drawn complaint, in which, of course, evidence of the facts need not be incorporated; but as to the other matters, the evi- dence itself should be set out. Lanier v. City Bank, 9 Civ. Pro. 161; Smith v. Davis, 29 Hun 306; Walts -v. Nichols, 32 Hun 276. In an action for unliquidated damages the plaintiff must show by affidavit what the actual damages are, and he must set out the facts which he claims prove the damage, in order that the court may judge as to whether he has evidence of damage, and that his allegation of damage is not mere matter of speculation (23 State R. 201). § 273. Debt over and above counterclaims. (Co. Civ. P. § 636.) — The phraseology employed in this section may be misunderstood and lead to error unless carefully ex- amined. The words are: "the affidavit must show that the plaintiff is entitled to recover a sum stated therein over and above all counterclaims known to him," that is to the plaintiff. When theL affidavit is not made by the plaintiff, how can the affiant swear to such knowledge by the plaintiff ? This clause has given rise to a multitude of cases. It is impracticable, to review them all. We may state the conclusions as follows: 1st. If the affidavit is made by an agent, and he swears to the knowledge of the plaintiff, since this must necessarily be upon information and belief, he must state the sources of such information and belief or the affidavit will be insufficient. Cribben v. Schillinger, 30 Hun 248; Buhl v. Ball, 41 Hun 61; Gribbon v. Ganss, 45 State R. 825. 2d. If the affidavit is made by an agent, it will not be enough for him to swear to a sum due over and above all counterclaims "known to him "; he is not the plaintiff. The defect is held to be jurisdictional. Murray v. Hankin, 30 Hun 37. § 274-] THE GROUNDS OF ATTACHMENT. 245 3d. When an agent makes the affidavit, and it appears that the transaction was within his own knowledge, his affidavit that the sum is due over and above all counterclaims known to plaintiff will be accepted. Gribbon v. Back, 35 Hun 541; Mallary v. Allen, 15 Abb. N. C. 338. 4th. When the plaintiff is a corporation and the affidavit is made by an pfficer of the corporation, enough must appear respecting his position and duties to create an inference that he knew the condition of the transactions between the plaintiff and defendant. As in the case of a cashier of a bank. Nat. Park Bk. v. Whitmore, 40 Hun 499. See Ma7infacturers' Bk. v. Hall, 60 Hun 466; s. c. 39 State R. 463. § 274. The grounds of attachment— Foreign corpora- tion and non-resident. (Co. Civ. P. § 636.) — -The averment of the fact of non-residence in the affidavit for attachment is sufficient. It is not necessary to set out evidence to sustain the fact of non-residence. There is a distinction between residence and domicil. Residence means a fixed or permanent abode or dwelling-place for the time being, as contradistin- guished from a temporary locality of existence. Matter of Wrigley, 8 Wend. 140; Frost v. Brisbin, 19 Wend. 11 ; Bell v. Pierce, 51 N. Y. 12, 17. Domicil means something more than residence. It includes residence with an intention to remain in a particular place as one's home. An attachment on the ground of non-residence may therefore be sustained though the defendant may still have his domicil within the State. Mayor v. Genet, 4 Hun 487, affi'd 63 N. Y. 646. Actual cessa- tion to dwell within the State for an uncertain period without definite intention as to any fixed time of returning, even though a general intention to return at some time in the future may exist, constitutes non-residence. Weitkamp v. Loehr, 53 Super. Ct. 79. The fact that a resident of another State has a place of business here, does not constitute him a resident of this State within the attachment laws. Wallace v. Castle, 68 N. Y. 370 ; Coffin v. Stiff, 5 Civ. Pro. 261 ; Canda v. Bobbins, 28 State R. 96. When one of the members of a firm is a non-resident, an attachment may be issued against his individual property, but not against the joint property. McKinlay v. Fowler, 1 How. Pr. N. S. 282. It is enough to aver affirmatively that the defendant is a 246 ATTACHMENT OF PROPERTY. [CH. X. foreign corporation, stating the State, county, or government by or under whose laws it was created (§ 1775). It is to be remembered that an action against a foreign corporation by another foreign corporation or non-resident can be brought only as prescribed by § 1780. § 275. Concealed and absconding debtors. (Co. Civ. P. § 636.) — An attachment may be issued against the property of " a resident of the State who has departed therefrom with the intent to defraud his creditors or to avoid the service of a summons, or keeps himself concealed therein with a like in- tent " (§ 636). Proof that one of the partners of a firm has absconded, while it will justify an attachment against his property, will not entitle the plaintiff to an attachment against the property of the firm. Bogart v. Dart, 25 Hun 395 ; Buckingham v. Swezey 25 Hun 84. As illustrations of cases in which attachments have been sustained on the ground that defendant had ab- sconded, the following may serve. In Buellv. Van Camp (28 State R. 907) it appeared that defendant had gone away without the knowledge of his neighbors; that his wife had received a letter from him which caused her much grief, and that she had said that he had gone to Canada; and it also appeared that defend- ant had been called upon in another proceeding to account as executor, and that he had failed to appear and had been removed. These circumstances were held to make out a case tending to show that defendant had left the State with intent to defraud his creditors or to avoid service of the summons. When it appears that the defendant is absent from his usual residence and place of business during business hours when he is about to fail, or soon after a demand has been made upon him for a debt, and he refuses to reveal his place of resort, it sufficiently appears that he keeps himself concealed with intent to avoid service of a summons (7 Daly 147; 12 Barb. 265). § 276. Fraudulent disposition of property. (Co. Civ. P. § 636.) — " If the defendant is a natural person or a domestic corporation, that he or it has removed, or is about to remove, property from the State with intent to defraud his or its creditors, or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete property, with the like intent " (§ 636). § 276.] FRAUDULE^ DAVITS T0 BE FIL£D> .it. 247 You will observ,-, that the words of the statute are substan- tially the langus ,.3 of the statute of fraudulent conveyances (13 EJiz., c. 5), A-iiich, as incorporated into our statute, reads as follows: "\very conveyance or assignment in writing or otherwise o f t any estate or interest in lands, or in goods or things in aetion, or of any rents or profits issuing therefrom, and every charge upon lands, goods, or things in action, or upon the rents or profits thereof, made with the intent to hinder, delay, or defraud creditors or other persons of then- lawful suits, damages, forfeitures, debts, or demands, and every bond or other evidence of debt given, suit commenced, decree or judgment suffered with the like intent as against the per- sons so hindered, delayed, or defrauded, shall be void " (2 R. S. 137, § 1; 2 Birdseye, p. 1236). There are certain acts from which the law infers an intent on the part of a debtor to hinder, delay, and defraud creditors irrespective of his actual motive, because such acts have a necessary or probable tendency to defeat the just claims of creditors. Such acts are said to be constructively fraudulent. A conveyance may be void under the statute of frauds by rea- son of such constructive fraud, but to justify the issuing of an attachment a merely constructive fraud will not suffice. The proofs must show a fraudulent motive, an act of moral turpitude. Thus, a general assignment which confers upon the assignee the power to sell the assigned property on credit is fraudu- lent. The law infers an intent to defraud from the injury to creditors which might arise from the delays and losses incident to such a power. The assignor, however, may have entertained no fraudulent motive in conferring such authority upon the assignee. The insertion of such a provision in an assignment would not be ground for an attachment on the ground that the debtor had assigned his property with intent to defraud credit- ors (Milliken v. Dart, 26 Hun 24), although the assignment might be set aside in a direct action by creditors. We note, therefore, that fraudulent intent under this section involves an actual motive to defraud, and not merely a constructive intent inferred by the law from an act which in itself may be con- sistent with an honest purpose. Citizens' Bk. v. Williams, 128 n. y. 77. We next inquire, what proof will sustain a conclusion of fraudulent intent ? Here we observe that the fraudulent intent 248 ATTACHMENT OF PROPF~ RTY - [CH. X. upon which an attachment may issue may have reference to an act completed, — that the defendant has removed or has disposed of his property with a fraudulent intent, or it may characterize a purpose not yet accomplished — that he is about to remove or dispose of his property with like intent. Proof of intent to characterize an act must generally be derived from admissions of the party, or from circumstances A person must be presumed to have intended the natural consequences of his own act. If these acts have a necessary tendency to defraud creditors, the intent will be presumed. Some circum- stances which often accompany or characterize a fraudulent intent may be stated generally as insolvency, secrecy, extra- ordinary and unusual haste, transfer to near relatives on the eve of failure, falsehoods and deception, unusual and mysteri- ous disappearance of goods. Fraud assumes so many forms that it is impossible to attempt any analysis or arrangement of the cases. § 277. When and by whom the warrant may be granted. (Co. Civ. P. § 638.)— The warrant may be granted by a judge of the court in which the action is brought or by any county judge. It may be made to accompany the sum- mons, or at any time after commencement of the action, or before final judgment. Personal service of the summons must be made upon the defendant against whose property the warrant is granted within thirty days after the granting thereof, or else before the expiration of the time when service of the summons by publication must be commenced (§ 638). A general appearance of defendant within thirty days after the warrant is granted is equivalent to a personal service. Cat- lin v. Ricketts, 91 N. Y. 668 ; 122 N. Y. 267. When the thirtieth day comes on Sunday, service on the next day meets the requirement (93 N. Y. 93). Service of publication pursuant to an order must be commenced within the thirty days. That means that it must be effectually commenced. When the order was made on the thirtieth day and the summons was mailed on that day and published in one paper, but not in both the papers designated on that day, it was held that pub- lication was not commenced. Taylor v. Troncoso, 76 N. Y. 599. When the order of publication has been obtained and the §§ 278, 279-J AFFIDAVITS TO BE FILED. 249 defendant is served personally without the State, the attach- ment will be sustained. United Verde Copper Co. v. Trifle, 20 Abb. N. C. 57. Substituted service under § 435 is not service • within § 638. § 278. Affidavits to be filed. (Co. Civ. P. § 639.)— This section requires that within ten days after the granting of the warrant the plaintiff must cause the affidavits upon which it was granted to be filed. A failure to comply with this section does not affect the validity of the warrant. Lewis v. Douglass, 53 Hun 587. § 279. Undertaking on attachment. (Co. Civ. P. § 640.) — The undertaking of the sureties is to pay (1) all costs which may be awarded to defendant and (2) all damages which he may sustain by reason of the attachment. The costs mean the taxable costs in the action (37 Hun 634) ; and the damages, whatever pecuniary loss the defendant may sustain by reason of the seizure and holding of the attached property ; but neither term includes the counsel fees and expenses of decid- ing the action {Northampton Bank v. Wylie, 52 Hun 146), but reasonable expenses of counsel fees on a motion to get rid of the attachment may be recovered on such an undertaking (17 Hun 497; 26 Hun 20). A mere depreciation in the market value of securities held under an attachment is not a damage arising from the attachments. Miller v. Ferry, 50 Hun 256. The sureties are entitled to the benefit of any payments of costs or damages paid by the principal, and can in no event be held liable for more than the difference between the sum so paid by the principal and the sum specified in the undertaking. Baere v. Armstrong, 26 Hun 19. The judge or court may fix the amount of the undertaking at a sum not less than two hundred and fifty dollars. It may be increased by order (2 T. & C. 471), and the court will make such an order when property levied upon is large (18 Hun 190). It is not a defence to an action upon an undertaking given upon granting a warrant of attachment that the warrant was granted improperly for want of jurisdiction or for any other cause (§642). The court cannot dispense with securijfy or accept a deposit of money in lieu of it. Bate v. McDowell, 48 Super. 219. 2 SO ATTACHMENT OF PROPERTY. [CH. X. § 280. Contents of warrant. (Co. Civ. P. §641.) — Recital of the grounds of attachment in the warrant is a matter of consequence, because upon a motion to vacate founded upon proofs presented by defendant the plaintiff may sustain the warrant by additional evidence tending to sustain any ground of attachment recited in the warrant (§683). A warrant may be amended by supplying the signature of the plaintiff's attorneys (10 Abb. 424), and by inserting a recital of papers upon which it was granted which have been inad- vertently omitted (55 Hun 1). A warrant of attachment must recite a legal ground therefor; a failure to do so does not constitute a mere irregularity, but is a jurisdictional defect. Macdonaldv. Kieferdorf, 46 State R. 176. § 281. Execution of the warrant. (Co. Civ. P. §644.)— We may consider the method of levying the warrant on (r), real property; (2), personal property capable of manual delivery; and (3), other personal property. (1). Real property. The real property which may be levied upon by virtue of a warrant of attachment includes any inter- est in real property, either vested or not vested, which is capa- ble of being aliened by defendant (§ 645). It is attached by filing with the clerk of the county where the real property is situated a notice of the attachment, stating the names of the parties to the action, the amount of plaintiff's claim as stated in the warrant, and a description of the par- ticular property levied upon. The notice must be subscribed by plaintiff's attorney, adding the office address, and must be recorded and indexed by the clerk as a lis pendens (§ 649). Here, and as we shall find elsewhere, the warrant operates only when the legal title is in the debtor, hence the interest of a purchaser under a contract of sale, of real property is not sub- ject to attachment. Higgins v. McConnell, 56 Hun 277. (2). Personal property capable of manual delivery. For the purpose of attachment by the sheriff there is included with property capable of manual delivery a bond, promissory note, or other instruments for the payment of money (§ 649, subd. 2); although, of course, the latter are in fact only evi- dences of rights of action. All personal property capable of manual delivery, including the instruments above mentioned, § 28 1. J EXECUTION OF THE WARRANT. 2$I may be attached, and the only method of attachment is for the sheriff to take the property into his actual custody (§649, subd. 2), and he must also deliver to the person from whose posses- sion the property is taken a copy of the warrant and the affi- davits on which it was granted (§ 649, subd. 2). If the sheriff fails to obtain the actual custody, no levy is effected upon such property. Anthony v. Wood, 96 N. Y. 180; Coffinv.N. JV. Cons. Co., 13 Civ. Pro. 9; McAllister v. Bailey, 14 Civ. Pro. 401. The question arises, what is included in the phrase, "other instrument for the payment of money " ? In Hankinson v. Page (12 Civ. Pro 279), Wallace, J., reached the conclusion that a policy of insurance was within this clause, but not a member- ship in a benefit association. And whenever a negotiable security representing the amount of a debt has been delivered by a debtor to his creditor, the debt cannot be attached apart from the security. Von Hesse v. Mackaye, 55 Hun 365. The debt represented by bonds of a foreign corporation, when the bonds are not within this State, cannot be levied upon under attachment (Ibid.). In Straus v. Chicago Glycerine Co. (46 Hun 216) a motion was made to set aside service of a warrant of attachment upon the agent in this State of a foreign insurance company, that had issued a policy of insurance to defendant under which a loss had occurred. The policy was in possession of defendant without the State. The motion was granted on the ground that the service of the attachment was not sufficient if the prop- erty was capable of manual delivery, as being an instrument for the payment of money, because the sheriff could not take possession of it, and it was not good as a levy on the debt, for the reason that the debt was due from a foreign corpora- tion and not contracted in this State. (3). Property not capable of manual delivery is to be attached by leaving a certified copy of the warrant, and a notice show- ing the property attached, with the person holding the same ; or if it consists of a demand, with the person against whom it exists; or if it consists of a right or share in a corporation, with the president or other proper officer of the corporation (§ 649). It is in the first place to be observed that mere equitable rights are not the subject of attachment. Throop Grain Cleaner Co. v. Smith, no N. Y. 83; Hankinson v. Page, 12 Civ. Pro. 279. Property of the debtors which might otherwise have been 252 ATTACHMENT OF PROPERTY. [CH. X. capable of manual delivery may be so situated that it no longer is capable of manual delivery, and hence may not be attached as such property. This is the case with pledged property. The equity of the owner may be attached by service as of property not capable of manual delivery. Warner v. Fourth Nat. Bk., 115 N - Y - 2S 1 - Causes of action arising upon contract generally may be attached, including a bond, promissory note, or other instru- ment for the payment of money only, negotiable or otherwise, whether past due or yet to become due, executed by a foreign or domestic government, State, county, public officer, associa- tion, municipal or other corporation, or by a private person either within or without the State, which belongs to the de- fendant and is found within the county (§ 648). Thus, a debt due to the defendant may be attached by serv- ing the warrant and notice upon the debtor. If the debtor is a foreign corporation, merely having a place of busmess in the State and the debt did not arise here, it would seem that the indebtedness is not property which the defendant has within this State, and therefore it cannot be seized under attach- ment (46 Hun 216). § 282. Shares of stock in foreign corporation. (Co. Civ. P §§ 646, 647.) — These sections provide for the attachment of subscriptions due to foreign corporations from persons within the county in an action against such foreign corporation and for levying on " one or more shares of stock therein held by such person or transferred by him for the purpose of avoiding payment thereof " (§ 646). It is also declared that the rights or shares which the defendant has in the stock of an association or corporation, together with the interest or profits thereon, may be levied upon (§ 647). The levy is made by delivering to the president or other head of the association or corpora- tion, or the secretary, cashier, or managing agent thereof, a certified copy of the warrant and a notice showing the prop- erty attached (§ 649, subd. 3). The provision declaring shares of stock leviable does not apply to stock of foreign corporations ; such shares of stock are not present within this State and rendered capable of attachment merely by reason of the pres- ence of the officers of the corporation here. Plimpton v. Bigclow, 93 N. Y. 592; 46 Hun 216. §§ 283, 2 84-] PROPERTY FRAUDULENTLY ASSIGNED. 253 § 283. Property which has been fraudulently assigned. — Here we distinguish between chattels and choses in action. If the debtor has fraudulently disposed of a chattel, for in- stance, a horse, the sheriff, under an attachment against the debtor, may seize the horse on the theory that no title has passed to the fraudulent grantee. If the transferee of the horse sues the sheriff for trespass, the sheriff may defend his possession under the warrant by showing that the transferee acquired no title by reason of the fraud. Rinchey v. Stryker, 28 N. Y. 45; Hess v. Hess, 117 N. Y. 306. This rule does not apply to the proceeds of chattels. Thus, in the case of the horse fraudulently disposed of, if the fraudu- lent transferee has sold the horse and has the money in his possession, the sheriff may not levy upon the money, because it is not the property of the debtor. The identity of the prop- erty has gone and the remedy is only in equity to fasten a trust upon the proceeds. Lawrence v. Bank of Republic, 35 N. Y. 320; Thurber v. Blanck, 50 Id. 80; Castle v. Lewis, 78 Id. 134, 136; McAllister v. Bailey, 14 Civ. Pro. 401. As to choses in action and equitable assets, if they have been fraudulently assigned, the sheriff may not reach them under the warrant. Thurber v. Blanck, 50 N. Y. 80 ; Anthony v. Wood, 96 Id. 180; Smith v. Longmire, 24 Hun 257. § 284. Certificate and examination. (Co. Civ. P. §§ 650, 651.) — These sections provide that in the case of the attach- ment of intangible property in the hands of a third party, such party may be required to give the sheriff a certificate as to the amount, nature, and description of such party. When the amount due by the third party to the debtor is unliquidated or unascertained, a certificate setting forth the general nature of the indebtedness and stating that the amount is unascertained or can be ascertained only by an accounting, will be sufficient in the first instance. Seligman v. Balk, 13 Civ. Pro. 77. The certificate is not conclusive against the party making it. He is not estopped by it from showing the true amount which he owes to the defendant. Almy v. Thurber, 99 N. Y. 407. When the person gives a certificate which is truth- ful there is no authority for an examination. Reynolds v. Fisher, 48 Barb. 146. But it may be shown that the certificate is evasive or untrue, and then an examination will be ordered (65 254 ATTACHMENT OF PROPERTY. [CH. X. How. Pr. 518); and it seems that a mere denial of his indebted- ness on the part of the person being examined will not neces- sarily preclude further examination. In re Crary, 9 Civ. Pro. 168. § 285. Actions in aid of attachment. (Co. Civ. P. §§ 655, 677, 678, 679, 680.) — These sections provide for the bringing of actions by the sheriff to collect attached claims, and for actions of a general character in the nature of discovery of assets of the debtor. Sec. 677 enables a plaintiff who has obtained an attachment to bring the action in the place of the sheriff upon the terms prescribed. The object of this and the succeeding sections is to enable the plaintiff to keep the litigation within his own control and in the hands of attorneys selected by him, otherwise the sheriff might select the attorney to bring the action, imposing the expense upon the plaintiff. ( The second subdivision of §655 was enacted i.n 1889; its pre- cise meaning and effect have not as yet been determined. Examining the first subdivision, we observe that it confers upon the sheriff the power to collect debts, effects, and things in action attached by him. Bowe v. Arnold, 31 Hun 256. He cannot sue to set aside as fraudulent an assignment of attached property, whether it be a chose in action or property capable of delivery. Bowe v. Arnold, 31 Hun 256. Since the sheriff can- not attach the proceeds of property fraudulently assigned {Lawrence v. Bank of Republic, 35 N. Y. 320), nor a chose in action which has been assigned by the debtor, it is clear that the sheriff cannot institute an action to subject such property to the attachment. Greenleaf v. Mumford, 35 How. Pr. 148. An attaching creditor cannot attach property claimed to belong to the debtor, consisting of choses in action incapable of manual delivery, when they have been previously assigned and trans- ferred by him to another party, and being incapable of seizure under the attachments, the sheriff has no authority for bring- ing or maintaining an action against the debtor for the recov- ery of the amount of the debt. For it is only when the debt itself may have been attached that the sheriff is authorized to maintain an action for its recovery. Nassau Bank v. Yandcs, 44 Hun 55. And where it is claimed by the person owing the debt that it was transferred before service of the attachment, the question is simply whether there was a transfer valid § 286.J INVENTORY — PERISHABLE GOODS. 255 in law ; the assignment may not be assailed as made in bad faith. Throop Grain Cleaner Co. v. Smith, no N. Y. 83. But when the legal title to the claim attached is in the defendant, then it becomes the duty of the sheriff to bring an action under this section to collect the claim. Davidson v. Chatham Nat. Bk., 32 Hun 138. And the sheriff may incur a liability if he neg- lects to do so (Ibid.). See Gibson v. Nat. Park Bank, 98 N. Y. 87. Subdivision second of this section does not as yet appear to have been subjected to judicial scrutiny. It seems to be lim- ited in its application to actions where service of process is not personal and when judgment is entered by default. See Backus v. Kimball, 62 Hun 122. § 286. Inventory — Perishable goods. (Co. Civ. P. §§ 654, 656.) — The sheriff is required, immediately after making the levy under the warrant, to make, with the assistance of two ap- praisers, a description of the real property and a just and true inventory of the personal property levied upon, and of the books, vouchers, and other papers taken into his custody, stating the estimated value of each parcel of real property attached, and of the interest of the defendant therein, and of each article of personal property, enumerating such of the latter as are perishable. The inventory must be signed by the sheriff and the appraisers, and must within five days after the levy be filed in the office of the clerk of the county where the property is attached. A failure to make and file the inventory as required by this section does not invalidate the levy under the attach- ment (33 Super. 346), but the court or judge may, upon the application of either party and proof of the neglect of the sheriff, require the sheriff to return an inventory, and dis- obedience to an order made for that purpose may be punished as a contempt (§ 681). It is provided also that perishable property levied upon under an attachment may be sold by the sheriff under an order of the court or judge (§ 656). As to what may be included under the term " perishable prop- erty " in these sections the decisions conflict. In Fisk v. Spring (25 Hun 367, Gen. Term Sup. Ct.), it was held that a stock of haberdashery goods were not perishable articles because likely to go out of fashion; but in Schumann v. Davis (19 Civ. Pro. 348), (Sp. T., City Ct.), it was held that woolen goods used by 256 ATTACHMENT OF PROPERTY. [CH. X. a fashionable tailor to make up new clothing were perish- able. § 287. Proceedings when attached property is claimed by third person. (Co. Civ. P. §§657-658, 1421-1427.) — When the attached goods are claimed by another person than the defendant, the sheriff may try the title before a sheriff's jury as provided by §§ 108, 109 (§657). The rule is, that the sheriff may be required to take and hold property found in the pos- session of the defendant until it is claimed by another and the title tried and found to be in the claimant, but the sheriff can- not be required to take property not in possession of defendant, or property the title to which is found to be in the claimant, unless the plaintiff indemnifies him, in which case the sheriff must detain the goods as the property of defendant. Section 658 provides a special rule in respect to the sheriff of New York County. Here, after the giving of the bond of indemnity with sureties and an opportunity to examine as to their responsibility and the allowance of the bond by the judge, the sheriff is released from all further liability and the claimant of the goods must look to the indemnitors for redress. The finding of the sheriff's jur}>- does not prejudice the rights of the claimant. The office of the jury is merely to determine the right of the sheriff to call upon the plaintiff for indemnity. By later sections of the Code (§§ 1421-1427), when the sheriff is sued for a wrongful seizure under an attachment or execu- tion, either the indemnitors or the sheriff may apply to the court for an order substituting the indemnitors in his place, and the proceedings by which that course may be followed out are prescribed. It has been held that these sections are not unconstitutional as taking away the right of a citizen to obtain redress against the sheriff for his trespass, and hence depriving him of due process of law. Hein v. Davidson, 96 N. Y. 175. See qutzre 31 State R. 477. The sheriff is entitled to the order as a matter of right. Cantor v. Grant, 23 Abb. N. C. 423. The indemnitors in such a case may avail themselves of any defence which the sheriff might set up; and accordingly, since the sheriff might defend against the claimant by showing that his title derived from defendant was fraudulent as against creditors, so in like manner the indemnitors may plead the same defence. Hess v. § 288.] CARE OF ATTACHED PROPERTY. 257 Hess, 117 N. Y. 306. As against the indemnitors the plaintiff need prove only a cause of action against the sheriff (30 State R. 135). It has been questioned whether the indemnitors would be liable for an excessive levy or for abuse of process, and whether in an action against the sheriff based on such a claim the substitution of the indemnitors in place of the sheriff would be compulsory. McBride v. Tappen, 31 State R. 477. When the warrant of attachment is vacated after a seizure under it has been made by the sheriff, the sheriff is nevertheless protected in all his acts in pursuance of the writ up to the time when it is vacated. Day v. Bach, 87 N. Y. 56; Hess v. Hess, 117 N. Y. 306. For any wrongful detention by the sheriff after the warrant is vacated the indemnitors would not be liable. Bowe v. Wilkins, 105 N. Y. 322. Where there are several attaching creditors of the same prop- erty, the title to which is in dispute and on demand, some give indemnity to the sheriff and others refuse to do so, the lat- ter will be precluded from claiming the avails of the attached property, though their attachments may be prior to the attach- ments of those who give indemnity. Cudahy v. Rhinehart, 133 N. Y. 248; s. c. 44 State R. 898. As to the respective liabilities of different classes of indem- nitors under various attachments and executions, see Posthoff v. Schreiber, 47 Hun 593; Dyett v. Hyman, 37 State R. 251. Hayes v. Davidson (98 N. Y. 19) and Berg v. Grant (18 Abb. N. C. 449) were decided before the amendments of 1887 (ch. 182 and ch. 452 of Laws of 1887), and are not applicable to the present statute. §288. Care of attached property. (Co. Civ. P. §§674, 675, 676.) — The sheriff must keep the attached property or its proceeds to answer any judgment which may be obtained against the defendant (§ 674), and he may be required by the order of the court to deposit the proceeds of attached property (§ 675), and he may be required to pay over any surplus in excess of a sum sufficient to satisfy the plaintiff's claim (§676). When the defendant's books of account have been levied upon, the plaintiff may be permitted to examine them. Brooke v. Foster, 20 Abb. N. C, 200. 17 258 ATTACHMENT OF PROPERTY. [CH. X. § 289. Motion to vacate or modify warrant or increase security. (Co. Civ. P. § 682.) — It will be observed that not only the defendant, but also any person who has acquired a lien upon or interest in the property at any time after it is attached, may move to vacate or modify the warrant or to increase the security. The motion may be made at any time before the actual application of the attached property, or its proceeds, to the payment of the judgment. A subsequent lienor under this section includes a receiver of the defendant's property appointed after the attachment (N. S. &• L. Bk. v. Meek. Nat. Bk., 89 N. Y. 440), but not one appointed before the attachment (45 State R. 152). A person who has secured a levy upon the attached property under a subsequent warrant of attachment may move to vacate a prior attachment. It may thus happen that a subsequent attaching creditor, by taking advantage of an insufficiency or irregularity in the proceedings for an earlier attachment, may oust those ahead of him and succeed to their place. In order to do this he must in the first place establish the fact that he has a lien upon the attached property. If he claims a lien by virtue of a subsequent attachment, his own papers must show all needful jurisdictional facts; and if they do not, he has failed to establish the primary essential. Delmore v. Owen, 44 Hun 296 ; Hodgman v. Barker, 60 Hun 156. He should therefore present the papers upon which his attachment was granted (46 State R. 139). He must further show that a valid levy has been made upon the attached property. This he must do by competent legal evidence. Tim v. Smith, 93 N. Y. 87. See Ruppert v. Haug, 87 N. Y. 141. A mere state- ment of an attorney to that effect is not enough (Ibid.). An affidavit of the sheriff or officer who actually made the levy is the best evidence, and an affidavit by the attorney that the sheriff had informed him that he had made the levy is not enough. Nat. Bwy. Bk. v. Barker, 38 State R. 597, affi'd 128 N. Y. 603. When the party has made good his standing to make the motion, he may move to vacate the previous warrant upon any ground which would be available to the defendant. Thus he may make his application on the ground of the insufficiency of the affidavits on which the former writ was issued. Steuben Co. Bk. v. Alberger, 75 N. Y. 179; Marine Bk. v. Ward, 35 Hun 395. § 29O.J HOW MOTION MADE. 259 § 290. How motion made — Opposing by new proofs. (Co. Civ. P. § 683.) — The motion to vacate may be made either upon the papers upon which the warrant was granted or upon proof on the part of the defendant or subsequent lienor. In the former case the application may be made to the judge who granted the warrant out of court either with or without notice; but if the warrant was granted by the court, then only to the court at Special Term and upon notice. Where the application is made on the papers on which the warrant was issued, no additional affidavits can be read either in support of the attach- ment or to defeat it. Buhl v. Ball, 41 Hun 61; Smith v. Arnold, 33 Hun 484; Sutherland-?. Bradner, 34 Hun 519. Defects in the original papers cannot be supplied on such a motioni Buhl v. Ball, supra. When the moving party is a subsequent lienor, he must of course present such proofs as will suffice to show his standing, and when he moves upon papers simply showing the existence of his lien, this is not a motion founded upon proof by affidavit so as to entitle the plaintiff to support the attachment by new proof {Steuben Co. Bank v. Alberger, 75 N. Y. 179); but if he goes beyond this and presents any facts however slight to defeat the attachment, this will open the door for new affidavits on the part of the plaintiff. Godfrey v. Godfrey, 75 N. Y. 434; Ives v. Holden, 14 Hun 402. If the defendant moves to vacate for irregularity, he must move promptly {Thalheimer v. Hays, 15 State R. 662), and a subsequent lienor may state facts tending to excuse delay without thereby giving the plaintiff the right to introduce new proof. Trow Printing Co. v. Hart, 85 N. Y. 500. The word "defendant,'' as used in this section, includes a subsequent lienor. Steuben Co. Bank v. Alberger, 75 N. Y. 179. When the motion is made on proofs, the plaintiff may sup- port the attachment by any evidence tending to support any ground of attachment recited in the warrant, and no other, unless the defendant relies upon a discharge or bankruptcy or insolvent proceedings, in which case the plaintiff may show any matter in avoidance which he might show on the trial (§683). Any proof, however unimportant, presented in any way for the purpose of attacking the plaintiff's affidavits, is new proof within this section. Godfrey v. Godfrey, 75 N. Y. 434; Pack v. Orr, 17 State R. 367. It may be said generally that the court will not pass upon 260 ATTACHMENT OF PROPERTY. [CH. X. the cause of action when there are conflicting affidavits. Thus, it will not vacate an attachment on proof that the cause of action is barred by the statute of limitations. Plimpton v. Bigelow, 29 Hun 362. But when it appears that the plaintiff could not have known the existence of certain facts sworn to in his affidavit, the attachment will be vacated. O'Reilly v. Freel, 37 How. Pr. 272. And where the answering affidavits of the defendant meet and answer the case for an attachment made by the plaintiff, the attachment will be vacated. Nyack cV Warren Gas L. Co. v. Tappan Zee Hotel Co., 24 State R. 723. When the motion to vacate is based upon an irregularity in the attachment papers, the notice of motion must specify the irregularity upon which the motion is based (Rule 37), but when the motion is based on the merits, the notice need specify no special grounds. Walts v. Nichols, 32 Hun 276. When the warrant is vacated for irregularities or for invalid- ity, a seizure under it is a trespass for which the plaintiff may be liable in damages. Lyon v. Yates, 52 Barb. 237; Kerr v. Mount, 28 N. Y. 659. But when it has been regularly issued, it is, as we have seen, a protection both to the sheriff and to the party until it is vacated. Day v. Bach, 87 N. Y. 56. An appeal from an order vacating an attachment will not be entertained by the Court of Appeals unless the order shows that the attachment was vacated for want of power, and an order granting an attachment is not appealable to that court unless it presents a question of law as absolute legal right. Allenv. Meyer, 73 N. Y. 1; 78 N. Y. 621. See Plimpton v. Bigelow, 93 N - Y - S9 2 - § 291. When prior motion will not prejudice subse- quent motion. (Co. Civ. P. §686.) — A denial of a motion to vacate an attachment will not prejudice a subsequent motion founded on the failure of a complaint subsequently served to set out a cause of action mentioned in §§ 635, 637. It is also held that a prior motion to vacate on the plaintiff's papers is not a bar to a subsequent motion by defendant founded upon affidavits. Thalheimer v. Hays, 42 Hun 93. § 292. Discharge of attachment upon undertaking. (Co. Civ. P. §§687, 688.) — These sections provide a means by which the defendant may relieve his property from the lien of § 293-J ATTACHMENT OF PARTNERSHIP PROPERTY. 261 an attachment by giving security to pay the plaintiff's debt. He may thus obtain the discharge of the whole or a part of the attached property. When there is more than one defendant and less than all desire to join in the application, the mode of proceeding is prescribed in § 689. The undertaking to discharge the attachment must be to the effect that the defendant will on demand pay to the plaintiff the amount of any judgment recovered in the action against him not exceeding the sum specified in the undertaking, which must be at least equal to the plaintiff's demand as specified in his affidavit, or to the appraised value specified in the inven- tory of the attached property; or, if the application is to dis- charge the attachment as to part only of the property attached, to the appraised value of that portion. When the attachment is declared void for want of jurisdic- tion, the undertaking cannot be enforced {Coleman v. Bean, 3 Keyes 94), but the fact that the attachment is subsequently set aside for other reasons does not invalidate the undertaking. JBildersee v. Aden, 62 Barb. 175. The sureties are bound by the recitals in the undertaking, and cannot dispute them in an action to enforce it. Higgins v. Healy, 47 Super. Ct. 207; JDelaneyv. Brett, 1 Abb. N. S. 421. It seems to follow from these decisions that when an attach- ment has been discharged under this section a subsequent mo- tion to vacate the warrant, even if successful, will avail nothing unless it is granted upon the ground that the warrant was void. If vacated upon any other ground, the plaintiff may still col- lect his judgment from the sureties on the undertaking. When the defendant wishes to test the validity of the attachment, it is not safe to give an undertaking under this section. § 293. Attachment of partnership property. (Co. Civ. P. §§ 693, 696.) — The tangible partnership property may be levied upon under an attachment against one partner {Smith v. Orser, 42 N. Y. 132), although only the interest of the partner may be sold (Abels v. Westervelt, 24 How. Pr. 284); but this right does not extend to intangible partnership equities like debts due the firm. Barry v. Fisher, 8 Abb. N. S. 369 ; Weston v. Con- ant, 1 City Court R. 224. The interest of one partner in part- nership assets is merely the right to his distributive share upon liquidation. Staats v. Bristow, 73 N. Y. 264. If a firm's goods 262 ATTACHMENT OF PROPERTY. [CH. X. are levied upon under an attachment against one partner, the other partners can obtain the release of the goods from attach- ment upon giving an undertaking as provided by these sec- tions. § 294. Execution against attached property. (Co. Civ. P. § 706.) — The execution issued when an attachment has been levied should be special in form. If the attachment was levied by a sheriff who is out of office, the execution should be directed to him as late sheriff. McKay v. Harrower, 27 Barb. 463. It should recite the attachment and direct a sale as provided in § 1370. A general execution issued where an attachment has been levied, is irregular and void. Place v. Riley, 32 Hun 17, affi'd 98 N. Y. 1. If the defendant dies after the attachment, but before execution, the right to order an execution is with the court, and not with the surrogate. Thacher v. Bancroft, 15 Abb. Pr. 243. CHAPTER XI. REPLEVIN. CHAPTER XIV., TITLE II., CODE OF CIVIL PROCEDURE. § 295. History of the writ of replevin. — Baron Gilbert, in his work on Distresses and Replevins (a.d. 1767), gives an instructive account of the origin and growth of the writ of replevin. It is a writ of great antiquity, having its origin in the early feudal relations. Under the feudal system the non-perform- ance of the rent service or charge which the tenant was obli- gated to pay by his feudal contract for the use of his land worked a forfeiture of the feud. These feudal forfeitures were mitigated under the English system into distresses, by which term was meant the right to seize the personal property upon the land, including not only that which belonged to the tenant, but whatsoever might be found thereon. Such a power was capable of great abuse, and was used so oppressively, that, toward the end of the reign of Henry III. (Statute of Marlbridge, 52 Hen. III., a.d. 1267), particular Jaws were made to regulate distresses and confine them to their proper purpose, which was to compel perform- ance of the feudal service. To effect this the lord was required to hold the property taken under distress as security or pledge, to be returned upon performance of the feudal service or rent charge. Prior to the statute of 2 W. & M., ch. 2, a distress, unless for dues to the king, could not be sold, and so was no payment or satisfaction to the distrainer. It could be held as a pledge or security only. The distrainer might impound the cattle in pound overt to be fed by the owner, and at the owner's risk, (263) 264 REPLEVIN. [CH. XI. in case of death, and so pain or distress him until he should perform the service or discharge his cattle by payment. Wells on Rep. § 8. This is the origin of distress for rent, — a rem- edy which still prevails in some of the States of the Union, but which was abolished in New York by the Revised Statutes. Distress was not limited to rent. It might be had for fines or amerciaments imposed at court leets, for toll at fair or mar- ket, to collect a sum amerced upon a township, or a penalty inflicted for the breach of a by-law, and also in the case of beasts damage feasant. The latter survives in our statutes relating to stray animals. Code, § 3082 et seq. Replevin was a remedy devised at common law for the relief of the tenant and others from whom goods were taken under an unlawful distress. As it existed at common law, it is defined as follows: "A replevin is a judicial writ to the sheriff complaining of an unjust taking and detention of goods or chattels, commanding the sheriff to deliver back the same to the owner upon security given, to make out the injustice of such taking, or else to return the goods and chattels." Gilbert on Replevin, 58. To replevy, as its name indicates (replegiare, to take back the pledge), is when the person distrained upon applies to the proper officer and has his distress returned to him upon giv- ing security to try the right of taking or distraining in an action at law. Wells on Rep. § 10. Prior to the statute of Marlbridge, the proceeding was com- menced by a writ issuing out of Chancery. The delay occa- sioned by the necessity of resorting to Westminster led to the remedy provided by the statute under which the sheriff had power upon complaint made to him without any writ or process from any court to deliver to the plaintiff his cattle. These proceedings were called " proceedings by plaint." Wells on Rep., §§ 17, 18; Manning v. Keenan, 73 N. Y. 45-58. We observe in the next place as to this writ, that it issued originally for the unlawful taking and detention. If the taking was unlawful, the detention was a continuing trespass, but we note that the writ did not originally run for a wrongful deten- tion, although it was extended to such a case. The writ directed the sheriff to deliver the goods to the plaintiff upon his giving pledges to answer for damages for falsely bringing the suit, but not for a return of the goods § 296.] REPLEVIN AND DETINUE. 265 replevied ; hence, the plaintiff having replevied the goods, might sell or otherwise dispose of them, and the defendant, if successful, might not be able to get back the goods. This was early remedied by compelling the plaintiff to £ive security for the return of the replevined goods if judgment should be given for defendant (Westm. 2, ch. 2). Another abuse of the process arose out of the right of the plaintiff to consent to a nonsuit. He might thus avoid the effect of a judgment on the merits as an adjudication, and forthwith bring a new replevin, and so by a series of nonsuits and replevins, retain in his possession property to which he was not entitled. This was remedied by the statute which provided that the same goods were not to be taken a second time on the complaint of the plaintiff without special writ (11 Geo. II., ch. 19, §§22, 23), which we trace into the section of the Code prohibiting a second replevin after judgment for defendant (§ 1691). We observe further, that on the execution of the writ at com- mon law, the sheriff might break open a house to make replevin, though he was not at liberty to do so in executing an attach- ment or execution, and the reason was that while a man's house was privileged for the protection of his own goods or person, it was not privileged for the protection of the goods of another which he had wrongfully taken. This rule was embodied in the stat. West. 1, c. 17, and is continued in our statute (§ 1701). § 296. Replevin and detinue. — The distinction between replevin and detinue at common law may be stated generally as follows: Replevin was an action sounding in tort and based upon a wrongful taking. The gist of detinue was the wrongful detention; it included, as replevin did not, the case where goods were delivered under a contract and was classed with actions ex co?itractu. In detinue the goods were recovered only upon the final judgment. And in that form of action at common law the defendant might wage his law, and hence the action was but little used until wager of law was abolished. In this State the action of detinue was abolished by the Revised Statutes. Replevin came to us with the other com- mon-law forms of action. It was originally available only in the case of a wrongful taking of chattels. In 1810 one of the 266 REPLEVIN. [CH. XI. judges seems to have held at circuit that it lay only in the case of a wrongful distress (Pangburn v. Patridge, 7 John. 143), but upon a motion for a new trial he repudiated this notion as a mistake, and stated that though the action was usually brought to try the legality of a distress, it would lie for any unlawful taking of a chattel (same case). By the Revised Statutes the form of the action was materially changed, and the cases in which replevin would lie were stated as follows (2 R. S. 522, sec. 1) : " Whenever any goods or chattels shall have been wrongfully distrained or otherwise wrongfully taken or shall be wrongfully detained, an action of replevin may be brought for the recovery thereof and for the recovery of the damages sus- tained by reason of such unjust caption or detention, except in the cases hereinafter specified." This section has been re- pealed, but it may be accepted as a correct general statement of the character of the action. The Code contains no statement of the instances in which replevin may be maintained. We are left, therefore, to deter- mine the limits of the action from the reported cases. § 297. When replevin can be maintained. — The primary object of the action is to secure to the plaintiff the actual pos- session of personal property of which he has been wrongfully dispossessed or which at the time the action is brought is wrong- fully detained (11 L. R. A. 172). It is therefore a possessory action, and the right to an immediate possession on the part of the plaintiff is indispensable. Wood v. Orser, 25 N. Y. 348. Con- sequently it is not essential that the plaintiff should be the owner of the property; it is enough that he has a special prop- erty entitling him to the immediate possession. An equitable interest with such right of possession will support replevin (Frost v. Mott, 34 N, Y. 253), and it has been held that as against a wrong-doer prior possession alone is sufficient to entitle the plaintiff to maintain the action (see 11 L. R. A. 172). Under the present form of the action in which the plaintiff may recover the value of the goods if return cannot be had where the goods are not seized under the writ, the action is essentially a personal action and governed by the same prin- ciple as an action of trover (48 Hun 232). A few illustrations of these general statements may be given. Thus, replevin lies for property taken from the possession of a § 298.] FOR WHAT REPLEVIN WILL LIE. 267 person who has a lien upon it. Baker v. Hoag, 7 N. Y. 555. A mortgagee who is in possession may maintain the action against a sheriff who takes the goods on execution against the mortgagor after condition broken. Willis v. O'Brien, 35 Super. Ct. 536 ; Guilford v. Mills, 57 Hun 493. When the sale of property is procured through fraud no title passes to the ven- dee, and the vendor may maintain replevin against the vendee and those claiming under him except a purchaser for value without notice. Nichols v. Pinner, 18 N. Y. 295. When the original possession of the defendant is lawful and not tortious, it is necessary to change the character of his pos- session by a demand and refusal before the plaintiffs can maintain an action to recover the goods. Goodwin v. Wertheimer, 99 N. Y. 149 ; Griswold v. Burroughs, 60 Hun 558. Hence, where a fraudulent vendee obtains goods and turns them over under a general assignment for creditors to an assignee who is innocent of the fraud, the original owner cannot replevy the goods from the assignee until after demand and refusal. 99 N. Y. 149; 2 Abb. App. Dec. 449; 8 State R. 313. § 298. For what replevin will lie. — As a general rule, the plaintiff must be able to identify the specific property so that a delivery can be made of it, and the action will lie for any specific property which can be thus identified. Graves v. Dudley, 20 N. Y. 76. Hence replevin will not lie for money unless specially identified and described. Soger v. Blain, 44 N. Y. 445. An action may be maintained for a written instrument as a policy of insurance (Luckey v. Gannon, 6 Abb. N. S. 209), or a promissory note {Decker v. Mathews, 12 N. Y. 313). But it is not always needful to be able to identify the precise articles when they are distinguished by quantity rather than quality, as grain or flour or coal which have been commingled by the wrong-doer with commodities of the same kind, when a delivery can be made of the proper quantity without injuriously affect- ing the remainder. Wells on Replevin, § 205; Morganv. Gregg, 46 Barb. 183 ; Moore v. Erie Railway, 7 Lans. 39 ; Seldon v. Hickok, 2 Caines 166 ; Tripp v. Riley, 15 Barb. 333 ; Botes v. Shattuck, 22 Barb. 568. Some curious results have followed from the application of this doctrine. In the leading case of Silsbury v. McCoon (3 N. Y. 379) it was held that where a quantity of corn had been wrong- 268 REPLEVIN. [CH. XI. fully taken from the owner and converted into whiskey by the trespasser, a creditor of the owner of the corn might levy an execution upon the whiskey as the property of his debtor on the theory that no property in the corn passed to the wrong- doer, who could acquire no interest either in the corn or whis- key by the change of form. The doctrine promulgated by that case was that a wilful wrong-doer can acquire no property in the goods of another by any change wrought in them by his labor or skill, however great the change may be, provided it can be proved that the improved article was made from the original material. When the wrong-doer has taken goods from different owners and mingled them together into a new article, it becomes a matter of interest to ascertain what the rights of the original owners are respectively in the new arti- cle and how they are to be enforced. In Nat. Park Bk. v. God- dard (131 N. Y. 494) it appeared that a firm of clothing manu- facturers were alleged to have wrongfully obtained the goods of various merchants which they had manufactured into cloth- ing. The owners of the goods sought to replevy their goods from the general stock. The stock consisted of articles of clothing into which had entered "the cloth of one vendor, the linings of another, and the buttons of a third, or to the cloth which none of the vendors had sold had been added the linings of one and the buttons of another." Under the doctrine above stated, each owner seized under replevin such of the manufactured articles containing any portion of his goods as he could secure. The action was brought by the attaching creditor, from the operation of whose attachment the entire stock was taken by these various replevins, for the appointment of a receiver, the enjoining of the prosecution of the suits in replevin, and the determination of the conflicting claims to the goods. The order appointing a preliminary receiver and sustaining a preliminary injunction was affirmed by the Court of Appeals, where the power of a court of equity to determine the rights of the respective claimants to the goods was asserted. It is said that beasts that axe. ferce naturce may be reclaimed if they be taken from the actual custody of a person who has them in possession, but if they have escaped, they cannot be replevined from one who has recaptured them. Several persons cannot join in one replevin for several chat- tels when the property in them is several, because each wrong- § 299-] WHEN REPLEVIN CANNOT BE MAINTAINED. 269 ful taking is a separate trespass, and as to those chattels in which I have no property, I cannot seek redress for a wrong done to another. But if goods are taken by several, they are jointly liable as joint trespassers, and when goods are taken by A at the com- mand of B, both may be made defendants. § 299. When replevin cannot be maintained. (Co. Civ. P. § 1690.) — There are three instances specified in which re- plevin may not be maintained: (1). Where the chattel was taken by virtue of a warrant against the plaintiff for the collection of a tax, assessment, or fine issued pursuant to a statute of the State or of the United States, unless the taking was unlawful, by reason of a defect in the process or other cause specified, or that the detention is unlawful by reason of facts specified which have subsequently occurred (§ 1695). The common-law rule was that replevin did not lie against the king, nor when the king was a party, and when the taking is in right of the king (Bro. abr. tit. Rep. pi. 33), and the rea- son was, that the collection of the king's income should not be impeded. Hence the origin of this subdivision. But any hardship of the rule is prevented by the qualifica- tion. The warrant is no protection to the taking where it is apparent on its face that it was issued without jurisdiction. Hudler v. Golden, 36 N. Y. 446. Nor will it be a protection in taking the property of a person other than the one against whom the warrant runs. L. S. 6° M. S. Ry. Co. v. Roach, 80 N. Y. 339- (2). When the property was seized by virtue of an execution or attachment, except as above. The plaintiff cannot replevin goods taken under an execution or attachment against him, but he may replevy his goods taken on execution or attach- ment against another. And the plaintiff may replevin exempt goods even on execution or attachment against himself (§ 1690), or when the process is defective. The general rule is, that property in the custody of the law cannot be replevined. Thus, goods taken rightfully by a receiver within the scope of his authority cannot be taken on execution, but if the receiver takes into his possession property not covered by the order of appointment, it may be replevined 270 REPLEVIN. [CH. XI. by the true owner {Corn Exchange Bk. v. Blye, 101 N. Y. 303), and you cannot replevy goods that have been replevied while in the custody of the officer. (3). Nor can property be replevined where it was seized by virtue of an execution or a warrant of attachment against the property of a person other than the plaintiff, and at the time of the seizure the plaintiff had not the right to reduce it into his possession. An illustration of what is intended by this subdivision is found in the case of goods sold under a conditional sale. Upon execution against the vendee of such goods the vendee's in- terest in such goods may be sold {Herring v. Hoppock, 15 N. Y. 409 ; Ballard v. Burgett, 40 Id. 314; Frank v. Batten, 49 Hun 91), and the vendor cannot replevy the goods if at the time of the seizure the vendor had not the right to reduce the goods to possession. Savall v. Wailful, 21 Civ. Pro. 18. § 300. Commencement of action. — The action is com- menced as other actions under the Code, by service of a sum- mons. By § 1693 when the chattel is replevied before the service of the summons, the court acquires jurisdiction as in the case of other provisional remedies (§ 41 6j. Acker v. Haute- mann, 27 Hun 48. § 301. The requisition and affidavit. (Co. Civ. P. §§ 1694, 1695, 1696.) — The requisition is a written order endorsed on the affidavit required by § 1695, to the effect that the sheriff is required to replevy the chattels described therein. This requi- sition is subscribed by the plaintiff's attorney (§ 1694). No order of the court is made. The affidavit having been pre- pared and the requisition endorsed thereon by the plaintiff's attorney, and the undertaking specified in § 1699 having been prepared, these, with the summons or a summons and com- plaint, are delivered with copies to the sheriff. If the papers are regular on their face, and the sheriff approves the under- taking, it becomes at once his duty to seize the goods men- tioned in the affidavit if he finds them in the possession of the defendant. We now examine these steps more in detail. (1). The affidavit. — This will be made ordinarily by the plain- tiff, but it may be made by the plaintiff's agent or attorney (§ 1712), if the facts are within his personal knowledge, or if § 301.] THE REQUISITION AND AFFIDAVIT. 27 1 the plaintiff is not within the county where the attorney resides or is not capable of making the affidavit. When the affidavit is so made the agent or attorney must state what allegations are made upon his information and belief, and he must set forth the grounds of his knowledge and the reason of his belief. Section 1697 requires that when the affidavit describes two or more chattels of the same kind it must state the number there- of, and when it describes a chattel in bulk it must state the weight, measurement, or other quantity. When it describes 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 of any class of chattels, and the aggre- gate value of the remainder if any. Section 1696 provides for change in form of affidavit when it is made after the service of the summons. Where the plaintiff claims to be the general owner of the property, it is enough to state in the affidavit that he is the owner, but if he claims possession by virtue of special property he must set out the facts showing such ownership. Depew v. Leal, 2 Abb. Pr. 131; 19 Wkly. Dig. 192. If demand and refusal are necessary, the demand must of course be made before the affidavit is verified, otherwise it will not be true that the chattel "is wrongfully detained." Mc- Adam v. Walbrau, 8 Civ. Pro. 451. (2) The requisition. — The requisition may be directed to the sheriff by a particular county, or generally to the sheriff of any county where the chattel is found (§ 1694). It is simply a direction to the sheriff to replevy the goods, and is in these words: "To the Sheriff of the County of : You are hereby required to replevy the chattels described in the within affi- davit. Dated , 189 . , Plaintiff's Attorney." (3). The undertaking. — There must be two sureties. The obligation must be for a sum double the value of the chattels, as stated in the affidavit, and the obligation is threefold: (1st), for the prosecution of the action ; (2d), for the return of the chattels to the defendant if such return is adjudged, or if the action abates or is discontinued; (3d), for the payment of any sum awarded to defendant (§ 1699). If the plaintiff places a small value upon the property to avoid giving an undertaking for the actual value of the prop- erty, the court has no power to require a larger or another 272 REPLEVIN. [CH. XI. undertaking. U. S. Land Co. v. Bussey, 53 Hun 516. The only effect is to permit defendant to retake the property on a bond for a like amount. The approval of the undertaking by the sheriff is a ministerial act which he is required to do for his own protection, but still he cannot arbitrarily refuse to do it \Nosser v. Corwin, 36 How. Pr. 540), and if he does so he would probably be liable for any injury which might result to the plaintiff for such refusal. 3 Rumsey's Prac. 185. § 302. Motion to set aside requisition. — If the affidavit or requisition or undertaking is defective the remedy is by motion to set aside the proceedings. American Tool Co. v. Smith, 32 Hun 121; Depew v. Leal, 2 Abb. Pr. 131. The motion must be made promptly. Ethridge v. Orcutt, 12 State R. 372. If the affidavit is irregular in not complying with the provisions of § 1695, a motion to set aside the proceedings on that ground must be made before the time to answer expires (29 State R. 773). It has been said that a general appearance by defendant waives an irregularity in the replevin proceedings (1 Abb. Pr. 248), but the proceedings for replevin are a mere incident in the action, and there seems to be no reason why a general ap- pearance should have the effect claimed. See McAdam v. Walbrau, 8 Civ. Pro. 451. On a motion to vacate, the proceed- ings may be amended. McAdam v. Walbrau, supra. § 303. How the chattel is to be replevied. (Co. Civ. P. §§ 1698, 1700, 1701.) — The sheriff can take the property from the possession of the defendant or his agent. Otis v. Williams, 70 N. Y. 208. He cannot take it from the possession of a third party not a defendant, although the particular property is found in his possession. Stimpsonv. Reynolds, 14 Barb. 506. See 2 Civ. Pro. 259; 73 N. Y. 45. The sheriff as at common law has the authority to break into a building, even a private dwelling, to make a replevy, and this authority is now expressly conferred by statute (§ 1701). The requirement of the statute that the sheriff must first publicly demand the delivery of the property does not render necessary that he should make a demand upon the person in possession elsewhere than at the building where the goods are, and if there is no person there upon whom a demand can be made, no demand need be made. Howe v. Oyer, 50 Hun 559. §§ 304j 305.J HOW REPLEVIED CHATTEL KEPT. 273 § 304. How replevied chattel kept. (Co. Civ. P. § 1702.) — The sheriff is entitled to compensation for taking care of the replevied goods, the amount to be fixed by the court in which the action is pending, or a judge thereof, or a county judge (§3307). Nester v. Bischoff, 20 Civ. Pro. 12. The sheriff is therefore a bailee for hire and is bound to ordinary diligence. He must take such care of the property as a pru- dent man would take of his own property. Moore v. Westervelt, 27 N. Y. 234. § 305. Exception by defendant to plaintiffs sureties. (Co. Civ. P. §1703.) — The defendant has three days after the chattel is replevied and the papers served to determine whether he will except to the plaintiff's sureties or retake the property by a counter-bond, or whether he will permit the plaintiff to keep the goods on the undertaking he has given. If he elects to except to the sureties, he must within the three days serve a notice upon the sheriff that he excepts to the plaintiff's sureties. The plaintiff must then within ten days serve on the defend- ant's attorney if defendant has appeared; or if not, upon the sheriff, notice of the justification of the sureties. The course pursued is as in justification of bail (§ 1705). If the defendant wishes to secure an immediate return of the property, he may counterbond as provided in § 1704. For that purpose, after giving the notice, affidavit, and undertaking required by that section, he must within three days after serv- ing the notice, serve upon the plaintiff's attorney notice of justification of the defendant's sureties. This justification is also governed by the rules regarding justification of bail (§!705)- If the defendant within three days does neither of these two' things, — i. e., neither excepts to the plaintiff's sureties nor demands a return of the property, — the sheriff must deliver the goods replevied to the plaintiff (§ 1706). If the defendant excepts to the plaintiff's sureties and they justify, and the plaintiff's undertaking is approved, the sheriff must then deliver the goods to the plaintiff. If the defendant demands a return, but fails to have his sure- ties justify, and his undertaking approved, then the sheriff must deliver the goods to the plaintiff (§ 1706). But if the defendant demands a return and his sureties jus- 18 274 REPLEVIN. [CH. XI. tify and his undertaking is approved, then the sheriff must deliver the goods to the defendant. The defendant cannot both except to the plaintiff's sureties and also claim a return of the property. Excepting to the plaintiff's sureties is a waivei of the right to reclaim {Hof- keimerv. Campbell, 59 N. Y. 269), but if the plaintiff's sureties do not justify when excepted to, the goods must be delivered to the defendant (§ 1706). When the defendant attempts to reclaim the goods, he must comply with all the requirements of §§ 1704, 1705. Teschner v. Deveron, 59 How. Pr. 467. He must serve the required affidavit, which, however, may be made upon information and belief. Lange v. Lewi, 58 Super. 265. It does not appear to be cer- tain that he can demand a return on an affidavit stating that a third person is entitled to the chattel. See §1723; 58 Super. 265. The affidavit may be made by an agent or attorney (§ 1712). When the defendant reclaims the goods and gives an under- taking reciting the taking of the goods by the plaintiff, he is estopped on the trial from denying that the goods were in his possession. Martin v. Gilbert, 119 N. Y. 298; 58 Super. 265. See Diossy v. Morgan, 74 N. Y. 11. The liability of the sureties upon the undertaking given by defendant does not arise until the bond is delivered to plaintiff and the goods returned. O'Connell v. Kelly, 29 State R. 491. As to the liability of the sureties on defendant's undertaking, see §§i733, 1 734, i73S- The defendant's undertaking must be in double the value of the property as stated in the plaintiff's affidavit. This is the case even though all the goods mentioned in the affidavit have not been replevied, but the sureties are only liable for the value of the goods actually replevied. Weber v. Mamie, 42 Hun 557 ; (§ i699)- § 306. At what stage of the action the requisition may issue. (Co. Civ. P. § 1694.) — The requisition may be made when the summons is issued, or at any time afterwards before the service of defendant's answer, or, in case of default, at any time before the entry of final judgment. The defendant, as we have seen, may counter-bond within three days after seiz- ure and service of the papers on him. Thus he may perfect his proceedings for replevin even though a trial has been had '§§ 3°7> 308.] WHEN GOODS DELIVERED BY SHERIFF. 275 before they are completed, and obtain a surrender of the goods. Corn Ex Bk.v. Blye, 102 N. Y. 305. § 307. When the goods are to be delivered by sheriff and his liability terminated. (Co. Civ. P. §§ 1706, 1708.)— When the goods are delivered to either party pursuant to the course of procedure stated above, the sheriff ceases to be responsible for the sufficiency of the sureties. When the sheriff delivers the property to either party, he must at the same time deliver to the other party the undertaking received by him from the party to whom the chattel is delivered, together with the examination of the sureties and the judge's allowance, if any. § 308. Claim of title by third person. (Co. Civ. P. §§1709, 1 7 10, 1711.) — These sections are intended to provide for a case where the goods taken by the sheriff on the plaintiff's requisition are the property of a person other than the defend- ant in the action. In such a case the third party may claim the goods from the sheriff as provided, and if the plaintiff fails to give the indemnity required, the sheriff may deliver the goods to the third party. The claim must be made before the goods have actually been delivered to the plaintiff or defendant — that is, while they are in the custody of the sheriff. The necessity for this section arises from the fact that a replevin is in the nature of a proceeding in rem. The process directs the sheriff to take certain specific chattels from defend- ant. In taking such chattels from the defendant he is pro- tected by his writ and would not apart from the statute be liable for a trespass to a third party. Foster v. Pettibone, 20 Barb. 350; contra, Stimpson v. Reynolds, 14 Id, 506. See these cases commented upon in Rogers v. Weir, 34 N. Y. 465; Bullis v. Montgomery, 50 N. Y. 352. And see a history of the law in Manning v. Keenan, 73 N. Y. 45, 58. This rule works a wrong to the true owner of a chattel in possession of the defendant, for, since the true owner could not replevy the goods from the sheriff while in the custody of the law, nor sue the sheriff for a trespass, since he was protected by his writ, he would appar- ently be left only to such remedy as he might have against the plaintiff, who might be irresponsible. The statute therefore 276 REPLEVIN. [CH. XI. provides that he may come in and claim the goods from the sheriff and obtain them unless the plaintiff gives indemnity against his claim, in which case he may sue the sheriff, who, if held liable, may in turn look to the indemnitors {Manning v. Keenan, 73 N. Y. 45); but he must make his claim before the goods have actually been delivered by the sheriff out of his custody {Second Nat. Bank v. Dunn, 2 Civ. Pro. 259), and he must issue a summons against the sheriff within three months after delivery to plaintiff, and the summons must be served within three months after it has been issued (§ 1710). The claim, which must be in the form of an affidavit, may be made by an agent or attorney and may be upon information and belief (§ 1712). § 309. Second and subsequent replevin. (Co. Civ. P. § I 7 I 3-) — This section was rendered necessary by a doubt whether, under the practice provided by the Code, the requisi- tion could be executed at different times (Throop's Code, § I7I3)- §310. Replevin and arrest. (Co. Civ. P. §1714.) — Under § 549, subd. 2, a defendant may be arrested in an action " to recover a chattel where it is alleged in the complaint that the chattel or a part thereof has been concealed, removed, or dis- posed of so that it cannot be found or taken by the sheriff, and with intent that it should not be so found or taken." This section provides that if defendant has been arrested, a subsequent replevin of the goods for the embezzlement of which he is arrested cannot be had, and a replevy of the goods before arrest supersedes the order of arrest. § 311. Proceedings in the action apart from the requisi- tion. — The action of replevin is begun, as all other actions under the Code, by a summons. Complaint. — The complaint must set out a cause of action entitling the plaintiff to the recovery of the chattel, but there are no requirements as to its form except that by § 1720 a gen- eral allegation of ownership is a sufficient statement of title unless the action is based upon a right of possession by virtue of a special property, in which case the pleading must set forth the facts upon which the special property depends, so as to I3 11 -] PROCEEDINGS APART FROM REQUISITION. 277 show that at the time the action was commenced the plaintiff was entitled to the possession of the chattel. And by § 1721 it is provided that when the complaint contains a sufficient statement of the plaintiff's title,. a general allegation that the defendant wrongfully took the chattel is sufficient without set- ting forth the facts showing that the taking was wrongful. When the action is founded upon a wrongful detention, the complaint must set forth the facts showing that the detention was wrongful. It is necessary that the value of the property should be found by the jury, and hence it must be alleged in the com- plaint. The plaintiff may recover not only the chattel, but also dam- ages for its injury or depreciation in value while in the pos- session of the defendant, if he might recover such damages in an action brought for that purpose, but in that case he must insert in the complaint the proper allegations showing such injury or depreciation (§1722). He may join several causes of action for chattels with or without damages for the taking or detention (§484). When the complaint is based upon a wrongful detention, it must set forth the facts showing that the detention is wrong- ful. Thus, in Scofeldv. Whitelegge (49 N. Y. 259) it was held that in such a case an allegation of demand and refusal were neces- sary (see Davenport Glucose Mfg. Co. v. Taussig, 31 Hun 563), and where the complaint simply alleged the plaintiff's title and right of possession, and alleged "that the defendant wrong- fully detained said goods and chattels from the possession of plaintiff and still wrongfully and unjustly detains the same," it was held demurrable. Seifret v. Kraft, 13 Civ. Pro. 321. At common law and under the Revised Statutes there were two actions of replevin — one in the cepit and one in the detinet. Replevin in the cepit could be brought for the wrongful taking, and replevin in detinet for the wrongful detention of chattels. As to the difference in pleading between replevin in the cepit and in the detinet, see Griffin v. L. I. R.R. Co. (10 1 N. Y. 348). Answer. — Under a general denial in an action for a wrong- ful taking, the defendant may controvert by evidence every- thing which the plaintiff is bound in the first instance to prove to make out his case. He may therefore disprove the plain- tiff's possession or the wrongful taking; this latter he may do 278 REPLEVIN. [CH. XI. by showing his own right of possession or the right of a third party with which he is connected, but in an action for wrongful detention a general denial puts in issue also plaintiff's prop- erty in the chattel, and defendant under such a plea may show title in a stranger although he does not connect himself with such title. Griffin v. L. J. R.R. Co., 101 N. Y. 348; Siedenbach v. Riley, in N. Y. 566. By § 1723 of the Code it is provided that the defendant may by answer defend on the ground that a third person was entitled to the chattel without connecting himself with the lat- ter's title. Whether this section requires that the title of the stranger should be pleaded does not seem to have been con- sidered in the cases cited, nor whether it extends the effect of a general denial in action in the detinet, as stated above, to action in the cepit. Slowell v . Otis, 71 N. Y. 36. The case cited was decided previous to the enactment of § 1723, and so far as it holds that title in a stranger does not constitute a de- fence is overruled by that section. When the goods have been taken by plaintiff on requisition, the defendant may demand a return of the property, or its value with or without damages for its detention, and this he may do under § 1725, by a notice served on plaintiff's attorney within the time allowed for noticing the case for trial. Unless such claim for damages is made, the defendant, if successful on the trial, can recover onlv the chattels or their value. Trial. — Upon the trial the replevin papers which must be furnished to the court are to be regarded as in evidence with- out being formally offered (§ 1717). Martin v. Gilbert, 119 N T . Y. 298, 303. The trial proceeds whether the chattel has been taken on the replication or not, — that is mere incident ; and if the chattel has not been taken the plaintiff may on the trial recover it or its value (§ 17 18). Where only a part of the chattels specified in the complaint have been replevied, the plaintiff may abandon his claim to the goods not taken by notice as specified in § 1719. In J File v. Brownstein (35 Hun 68) it was held that where plaintiff brought replevin for a number of chattels on the disaffirmance of an alleged fraudulent purchase and abandoned his claim to a part of the goods specified in the complaint, he could not afterward sue for the price of the goods. His action might §§ S 12 "^ 1 ^] VERDICT.— JUDGMENT. 279 have been sustained, however, had he brought suit for the value. § 312. Verdict. (Co. Civ. P. § 1726.) — The verdict, report, or decision must fix the damages of the prevailing party. The value at the time of the trial must always be found and stated in the verdict. Bach v. Tuck, 47 Hun 536. If there is no proof of value but the affidavit made to take the property, the jury may assess the property at the sum stated in the affi- davit. Empire State Type Co. v. Grant, 44 Hun 434. As to the measure of damages for wrongful detention, see Redmotidv. A. M. Co., 121 N. Y. 415; Allen v. Fox, 51 N. Y. 562; Corn Ex. Bk. v. Blye, 56 Hun 403. §3I3- Judgment. (Co. Civ. P. § 1730.) — The judgment should be in the alternative for the recovery of the property or its value if a return cannot be had with damages for deten- tion {Phillips v. Melville, 10 Hun 211), and this is so though a return cannot be had (41 N. Y. Super. Ct. 317). If the judgment is entered merely for a return of the property, neither the value of the property nor the damages having been assessed, the judg- ment is unavailing if a return of the property cannot be had. Hammond 'v. Morgan, 101 N. Y. 179. When the defendant is successful, if he has demanded a return of the property, when the property has been delivered to the plaintiff, he must take judgment in the alternative. Dwig/itv. Enos, 9 N. Y. 470; Glann v. Younglove, 27 Barb. 480. Where the plaintiff claims a special property as mortgagee, and defendant is the general owner, the proper judgment for plaintiff is for a delivery of the property or its value, fixing it at the amount of plaintiff's interest. Allen v. Judson, 71 N. Y. 77. When the judgment awards the property or its value to plaintiff, with damages for detention down to the time of trial, and the defendant appeals and retains the property pending the appeal, and plaintiff is finally successful, he may bring a new action for damages for the detention pending the appeal. Corn Exch. Bk. v. Blye, 56 Hun 403. § 314. Contents of execution and enforcement of under- taking. (Co. Civ. P. § 1731.) — The form of the execution in actions for replevin is specifically provided by § 1731, and it is 28o REPLEVIN. [CH. XI. provided that the successful party cannot proceed to enforce the undertaking given to him until the return of an execution issued in his favor (§ 1733). The sheriff's return unsatisfied is made presumptive evidence of the failure to deliver or return the chattel by the person against whom the execution is issued and also of his failure to pay any sum he may have been ad- judged to pay (§ 1734). CHAPTER XII. RECEIVERS AND OTHER PROVISIONAL REMEDIES. CHAPTER VII., TITLE IV., CODE OF CIVIL PROCEDURE. §315. General observations. — A provisional receiver is a person appointed in an action by a court to receive and care for property which is the subject-matter of the action until the rights or interests of the parties therein have been finally deter- mined. A permanent receiver is a person appointed by the judg- ment in an action to carry the decree of the court into effect. The general rule of law as to the appointment of a provisional receiver apart from statute maybe stated as follows: A receiver may be appointed (1), in a suit or proceeding pending (2) in a court of equity (3) on application of a party (4) of specific property (5) in possession of a party (6) in which the applicant has an interest (7) and loss or injury thereto is occurring or imminent (8) which can be prevented by the court taking pos- session of the property. The Code (§ 713) covers these general principles very closely. It provides for a receiver before judgment as follows : A receiver (1) of property which is the subject of an action may be appointed (2) by the court (either Supreme, Superior, City Court, or County Court) (3) on the application of a party, (4) who establishes an apparent right to or interest in the prop- ertv (5) which is in the possession of an adverse party (6) and there is danger that it will be removed beyond the jurisdiction of the court or lost, materially injured, or destroyed. The question has arisen whether the provisions of the Code are exclusive, — i. e., whether the equity power of the court to appoint a receiver can be exercised beyond the limits prescribed by the Code. In Hollenbeck v. Donnell (94 N. Y. 342) the opinion was (281) 282 RECEIVERS AND OTHER REMEDIES. [CH. XII. expressed that § 713 was not prohibitory or exclusive, but per- missive and declaratory, and that the general powers of a court of chancery to appoint a receiver were not restricted by that section, but were preserved by § 4 declaring that the courts therein named shall continue to exercise the jurisdiction and powers now vested in them. In Colwell v. Garfield Nat. Bk. (119 N. Y. 413) the court declined to determine whether the jurisdiction of the Supreme Court to appoint receivers can be exercised only in the cases and under the circumstances prescribed by § 713 and other statutes, but held that where § 713 was applicable and the statutory provision furnished an adequate remedy, the power of the court was limited by that section. See King v. Barnes, 51 Hun 550. § 316. When receiver appointed. — In amplification of the general statement as to when a receiver may be appointed, we mention certain special instances of comparatively common occurrence. (1). In cases of trustees, executors, and administrators. A court of equity by virtue of its jurisdiction over trusts has the power to and will appoint a receiver of trust property when the trust is likely to fail for want of a trustee, or when the trustee refuses to act, or when the trustee is guilty of miscon- duct, breach of trust, and waste of the trust funds, particularly if the trustee is shown to be insolvent. As to executors and administrators, it is to be observed that while the jurisdiction of the surrogate on probate of wills and in cases of intestacy is exclusive, yet courts of equity have a concurrent jurisdiction over the settlement of the accounts of executors and adminis- trators which will be exercised in a proper case; the control of such matters generally being left to the surrogate's court. But a court of equity may appoint a receiver iri an action for an accounting and settlement by an executor. Turner v. Crichton, 53 N. Y. 641. (2). In case of mortgage and liens. In actions to foreclose a mortgage the court has power to appoint a receiver of the rents during the pendency of the action. Hollenbeck v. Donnell, 94 N. Y. 342. If no proceedings are taken for the appointment of a receiver, the mortgagor, if in possession, is entitled to receive the rent until the purchaser § 316.] WHEN RECEIVER APPOINTED. 283 under foreclosure sale has become entitled to possession under his deed. Astor v. Turner, 1 1 Paige 436. When, however, it is made to appear that the mortgaged premises are an inadequate security, and the mortgagor is insolvent and the mortgage debt is due, the court may appoint a receiver of the rents for the benefit of the mortgagor. Rider v. Bagley, 84 N. Y. 461. Mortgages are frequently drawn pledging the rents and stipulating for the appointment of a receiver. The fact that the parties have agreed that a receiver should be appointed upon the happening of certain events, will have weight where an application is made pursuant to the agreement, and if there are circumstances calling for the enforcement of the stipulation the appointment will be made (Keogh Mfg. Co. v. Whiston, 26 Abb. N. C. 358), but a court of equity will not in every case enforce such stipulations (Degener v. Stiles, 25 State R. 422). Deeds of trust made by corporations to a trustee to secure bonds contain, as a rule, ample provisions for the appointment of a receiver upon default in the payment of interest or princi- pal. The appointment of receiver of railroad properties and of the properties of other corporations upon foreclosure at the suit of such trustee is not of uncommon occurrence. (3). In case of partnerships a receiver of partnership property may be appointed in an action to dissolve a partnership, and a receiver will ordinarily be appointed when the right to dissolu- tion is not disputed. Weston v. Watts, 1 State R. 763; McElvey v. Lewis, 76 N. Y. 373. So when it is made to appear that there are unreconcilable differences between the partners, so that it is impracticable to continue the business {Seaman v. Lewis, Daily Reg., April 26, 1884), or one partner is excluded by his copartners from any participation in the firm business or knowledge of its affairs. Insolvency is a fact of consequence as bearing upon the ques- tion of the appointment of a receiver in such cases. In the case of special or limited partnership under the laws of this State, upon the happening of insolvency any creditor of such partnership is entitled to have a receiver appointed in an action for dissolution and distribution. Innes v. Lansing, 7 Paige 583; Whitcomb v. Fowle, 10 Daly 23. See § 1947. (4). In creditors' actions. The appointment of a receiver in an action brought by judg- 284 RECEIVERS AND OTHER REMEDIES. [CH. XII. ment creditors to obtain satisfaction of their judgments out of the property of the debtor which has not been or cannot be reached on execution is expressly provided for by § 1877. A creditor at large, — /. e., a creditor who has not obtained judgment,— can- not maintain a creditor's action or secure the appointment of a receiver. The policy of the law is to require that the creditor should make the existence of his debt certain by judgment before he is permitted to interfere with the property of the debtor. It is further to be noted, that the receiver of the property of a judgment debtor may be obtained under the Code practice upon proceedings instituted by the judgment creditor supple- mentary to execution, known as supplementary proceedings (§§ 2432, 2463, 2464). Each of these remedies, — i. e., the judg- ment creditor's action and proceedings supplemental to execu- tion, — will be considered at large in a later chapter. (5). In actions relating to real property. A remainderman may have a receiver appointed where the life tenant fails to appropriate the rents and profits to keep down the taxes. King v. King, 41 N. Y. Super. 516. In an action to set aside conveyances obtained by fraud a receiver may be appointed. Mitchell v. Barnes, 22 Hun 194. So in cases of joint ownership where the party in possession is insolvent and is receiving and appropriating the rents. Roche v. Roche, 3 State R. 500. And in every case where the rents and income of property should be collected under the authority of the court, there is only one mode in which it can be done, and that is by the appointment of a receiver. Bowers v. Durant, 2 State R. 127. (6). Corporations. The appointment of receiver in corpora- tion cases will be considered separately. § 317. Mode of appointment. — This article contains no provisions as to the mode of appointment of a receiver except that the appointment must be made by the court (§ 713) and on notice (§ 714). The application must be made by motion at Special Term on notice to the adverse party " unless he has failed to appear in the action and the time limited for his appearance has ex- pired." But where the defendant cannot be served personally the court acquires jurisdiction to appoint a receiver without §§3 I 8-3 2 °-] WHO MAY BE RECEIVER. 285 notice when an order for service by publication has been made (§ 714). Alfordv. Berkele, 29 Hun 633. The application must be based upon proofs showing a state of facts justifying the appointment : this may be done by affi- davit or petition. Gregory v. Gregory, $$ Super. Ct. 1. It seems that a receiver may be appointed by the court on its own motion in a case requiring it. For an instance of an improper appointment, see O'Mahoney v. Belmont (62 N. Y. 133). § 318. The order of appointment.— The order should be en- titled at Special Term; it should specify the amount of the bond to be given by the receiver for the faithful discharge of his duties (§ 715). It should specify the property to be taken by the receiver with certainty, and should direct the party having it in possession to make delivery to the receiver so that the order may be enforced by contempt. § 319. Who may be selected as receiver. — The right to name the receiver is with the court, but either party is at liberty to nominate a person to be appointed, and the court will in some cases appoint a referee to inquire as to the proper person to be appointed. Wall St. Ins. Co. v. Loud, 20 How. Pr. 95. See § 827; Wetter v. Schlieper, 7 Abb. 92. Section 90 prohibits the court from naming the clerk, deputy clerk, special deputy clerk, or assistant in the clerk's office or in the surrogate's court as receiver. As a rule, the receiver should be a disinterested person not connected with the parties (Gillin v. Campbell, 9 State R. 538), but one partner may be appointed receiver on a dissolution of a firm when he has a largely con- trolling financial interest and is otherwise unobjectionable (1 Moak 720). So an officer of a corporation will not ordinarily be appointed its receiver, but upon proceedings for a voluntary dissolution the statute permits the court to appoint a director, trustee, or other officer or stockholder as receiver (§ 2429). § 320. Permanent receiver, by or after judgment. (Co. Civ. P. §713.) — A receiver may be appointed by or after final judgment to carry the judgment into effect or to dispose of the property according to its directions (§ 713, subd. 2). After final judgment to preserve the property during the pendency of ,an appeal (§ 713, subd. 3). 286 RECEIVERS AND OTHER REMEDIES. [CH. XII. While the court may appoint a receiver after judgment pending an appeal, it may not make an order in anticipation of the judgment continuing the receivership after judgment shall have been rendered. Colwell v. Garfield N. Bk., no N. Y. 408. § 321. Appeal. — No appeal lies to the Court of Appeals from an order appointing a receiver if there was power in the court below to grant the order. Fellows v. Heermans, 13 Abb. N. S. 1. But the discretion of the Special Term is reviewable at General Term. § 322. Powers of and control over receivers. — We can state only a few fundamental propositions. A receiver is an officer of the court. His powers are such, and such only, as flow from the order or decree appointing him. Acting within the powers conferred, he is personally not liable. Acting in excess of them, he is a mere intruder. When in doubt either as to his powers or duties, he may apply to the court for instructions and obtain an order as to what he should do; acting within which, he is protected. Matter of Van Allen, 37 Barb. 225. In any case of uncertainty the attorney acting for a receiver should permit his client to take no risks, but should submit the matter to the court. A temporary receiver is ordinarily a mere custodian; he pos- sesses none of the powers of a permanent receiver unless they are specially conferred upon him. If, therefore, it is desired that a temporary receiver should have the power to collect in assets by suit, to continue a business, to expend moneys for repairs, or, in fine, do any act apart from the mere custody of the property, the order appointing him or an order subse- quently obtained should confer these powers. The appoint- ment of a temporary receiver works no change in the title of the property, which still remains where it was, the receivership merely affecting the right of possession; but this may be other- wise in the case of a permanent receivership. Decker v. Gardner, 124 N. Y. 334. Before bringing an action the receiver should obtain leave of the court to sue. 41 Supr. Ct. 513 ; 2 Hun 523 ; 66 How. Pr. 423; 25 N. Y. 214. To sue a receiver without leave of court is a contempt. Taylor v. Baldwin, 14 Abb. Pr. 166. There are §§ 3 2 3» 324.J RECEIVERS OF CORPORATIONS. 287 special rules respecting the powers and duties of receiver of the property of a debtor (Rules 78, 79), and respecting the em- ployment of counsel by a receiver (Rule 82). A receiver's fees are prescribed by § 3320. § 323. Receivers of corporations. — The act of 1883, ch. 378, in relation to receivers of corporations, contains several provisions upon matters of practice which are of importance. This act provides that every application for the appointment of a receiver of a corporation shall be made at a Special Term of the court held in and for the judicial district in which the prin- cipal business office of the corporation was located at the com- mencement of the action, or in a county adjoining such district, and any order appointing a receiver of a corporation otherwise is void. See Rule 81. This section applies only to receivers of insolvent corporations, — /. R. Lime Co., 80 N. Y. 599; People v. B. R.R. Co., 126 N. Y. 29. Cases of actions brought by stockholders are Woodbury v. Rochester Frear Stone Co. (19 Hun 498); Swords v. Norther?i Light Oil Co. (17 Abb. N. C. 115). Apart from the general provision for the appointment of a receiver in § 1810, § 1788 provides for the appointment of a temporary receiver in an action for dissolution. 292 RECEIVERS AND OTHER REMEDIES. [CH. XII. It will be observed that the powers of such temporary re- ceiver are specially prescribed by this section, but by § 1789 the court may confer upon a temporary receiver the powers of a permanent receiver. A receiver appointed on final judgment has all the powers and authority conferred, and is subject to all the duties and liabilities imposed, upon a receiver appointed upon the volun- tary dissolution of a corporation (§ 1 788). A receiver appointed on voluntary dissolution has the powers conferred and is sub- ject to §§ 68 to 89 of title 4 of chap. 8 of Part III. of the Revised Statutes in reference to trustees of insolvent debtors ; the sec- tions referred to will be found in 3 Birdseye's Statutes, 3189. §328. In action to annul a charter. (Co. Civ. P. § 1797.) — The power of the legislature to annul a corporation by special enactment, as well as the effect of such annulment upon the franchises and property rights of the corporation, is dis- cussed in the Broadway railroad case, People v. O'Brien (111 N. Y. 1). Section 1797 provides that an action to annul a corporation may be brought by the attorney-general where directed so to do by the legislature. Section 1798 provides for an action to annul a corporation to be brought by the attorney-general upon leave of the court upon either of the five grounds specified. It was under the second of these subdivisions that what is known as the Sugar Trust was attacked and the North River Sugar Co. dissolved (121 N. Y. 582). § 329. On voluntary dissolution of a corporation. (Co. Civ. P. §§ 2419, 2431.) — The petition must be presented by a majority of the directors or officers having the management of the concerns of the corporation. Neither the stockholders nor the creditors can institute the proceeding. Matter of the Mart, 22 Abb. N. C. 227. It is, however, a matter purely of individual and not of public concern whether or not the corporation shall be dissolved. Skinner v. Smith, 56 Hun 437 ; Matter of Im- porters' &* Grocers Exch., 28 State R. 416. The power of the court is wholly statutory and it cannot act except as the statute directs. In re Boynton S. if F. Co., 6 Civ. Pro. 342. §§ 33°j 33 1 -] FORECLOSURE OF A MORTGAGE. 293- The form and contents of the petition for dissolution are provided by § 2421, and also the schedule which must be an- nexed. When it appears to the court that the corporation is insol- vent, the court may at any stage of the proceeding before final order on motion of the petitioners and notice to the attorney- general or on motion of the attorney-general, appoint a tem- porary receiver of the property of the corporation, and the court may confer upon him the powers of a permanent receiver. This power was conferred by the amendment of 1889. Pre- vious to that amendment the court had no power to appoint a temporary receiver in such proceeding nor had the court power to stay actions by creditors (12 Hun 488; 34 Hun 369). When the application is made under § 2419 the court is re- quired to, and when made under § 2420 it may, if it enter- tains the application, make an order requiring all persons interested in the corporation to show cause before it, or before a referee designated in the order, at a time and place to be therein specified not less than three months after the granting of the order, why the corporation should not be dis- solved (§ 2423). This order must be published as prescribed therein not less than once in each of three weeks immediately preceding the time fixed for showing cause, in a newspaper published in the city of Albany, and also in one or more papers specified in the order. § 330. In an action brought for the foreclosure of a mortgage on corporate property. (Co. Civ. P. § 1810.)— The provision of the statute respecting the appointment of receiver in an action for the foreclosure of a mortgage on cor- porate property is cited above (p. 288). It is not necessary in such a case to give notice to the attorney-general of the appli- cation for the appointment of a receiver. Whitney v. N. Y. cV Atlantic R.R, Co., 32 Hun 164-174. § 331. In an action to preserve assets. (Co. Civ. P. § 1810.) — The Code provides for the appointment of a receiver in an action brought by the attorney-general or by a stock- holder to preserve the assets of a corporation having no officer empowered to hold the same. Where there are no persons authorized to take charge of 294 RECEIVERS AND OTHER REMEDIES. [CH. XII. and conduct the offices of a corporation, a receiver will be appointed to take charge of them for the benefit of the general body of stockholders. Lawrence v. Greenwich Fire Ins. Co., i Paige 587. See Smith v. Danzig, 64 How. Pr. 320-324. § 332. Deposit, delivery, or conveyance of property. (Co. Civ. P. §§ 717, 718.) — Where it is admitted by the pleading or examination of a party that he has in his possession or under his control money or other personal property capable of deliv- ery, which being the subject of the action or special proceed- ing is held by him as trustee for another party, or which belongs or is due to another party, the court may in its discre- tion grant an order upon notice that it be paid into or depos- ited in court or delivered to that party with or without secur- ity, subject to the further direction of the court (§ 717). This section, it will be observed, applies only to a case where the party concedes by his pleading that he holds the property as trustee or where its ownership is conceded to be in another party. It has no application to a case where the indebtedness is disputed (43 Hun 564; 29 State R. 289). The court may enforce its direction as to the deposit or delivery by proceed- ings for contempt. Sections 743 to 754 relate to the payment of money into court and the care and disposition of such funds, and Rules 68 and 70 specify the trust companies in which such funds shall be deposited by the county treasurer and provide for reports by the several county treasurers and by the comp- troller of the city of New York and the auditing and examina- tion of their accounts. The attorney upon whose motion money is deposited is required to file with the trust company or bank a certified copy of the order or judgment under which the deposit is made (Rule 68), and moneys paid into court and deposited cannot be paid out without the production of a cer- tified copy of an order of the court for that purpose counter- signed by the judge by whose direction it is made (§ 751). CHAPTER XIII. MISCELLANEOUS INTERLOCUTORY PROCEEDINGS. CHAPTER VIII., CODE OF CIVIL PROCEDURE. MISTAKES, OMISSIONS, DEFECTS, AND IRREGU- LARITIES. (Co. Civ. P. §§ 721-730.) § 333- Errors before and after judgment. (Co. Civ. P. §§721, 722.) — The statute distinguishes between errors before and after judgment. Sections 721 and 722 relate to defects that are cured by judgment and which may be supplied after judgment. Section 723 confers upon the court a general power of amendment both before and after judgment. Section 724 permits the court to relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neg- lect. The distinction between the powers of the court before and after judgment arises from their different origin. At com- mon law, independent of statute, the court might grant amend- ments while the proceedings in an action were "in paper" — that is, until judgment signed, and during the term in which it was signed; but after judgment the povver to amend was statutory, being conferred by the act "concerning amendments and jeofails " (4 and 5 Ann, c. 16). This statute was re-enacted in this State (1 R. L., ch. xxxii.). The Revised Statutes enlarged the power of amendment after judgment and employed sub- stantially the same language as is now found in §§ 721 and 722 of the Code. 2 R. S. 424, 425 ; 1 Paine & D. Prac. 595; Gra- ham's Prac. 649. The common-law power of amendment before judgment was incorporated into the provisions of the Revised Statutes (2 R. (295) 296 INTERLOCUTORY PROCEEDINGS. [CH. XIII. S. 424), and enlarged and altered in terms, and is now embodied in §723 of the Code. Since this latter section embraces the power of amendment both before and after judgment, it appears to cover substantially all the relief afforded by § 721. § 334- Jurisdictional defects and irregularities. — There is a fundamental distinction between errors which are jurisdic- tional and those which are merely irregularities or departures from the prescribed procedure, and which are curable. When the proceeding itself is wholly unwarranted and totally dissim- ilar to that which the law authorizes, and one which the court has no jurisdiction to take under any circumstances, the proceeding is a nullity and cannot be made good (1 Rum- sey's Prac. 651). A proceeding which is absolutely void can- not be amended (50 Super. 202; 14 How. Prac. 380), and it may be disregarded. An irregularity in practice is not fatal unless it is so vital as to render the proceeding void. An irregularity may be defined to be the want of adherence to some prescribed rule or mode of procedure, and it consists either in omitting to do something that is necessary for the due and orderly con- duct of the suit, or doing it at an unseasonable time or in an improper manner. The term "irregularity " is used in contra- distinction to jurisdictional defects, which the courts have no power to authorize or approve. Corn Exch. Bk.v. Blye, 119 N. Y. 418. Some irregularities are merely technical and do not involve the merits or any substantial right; others are substan- tive, but all are capable of being cured or corrected. If the error is substantive, and such as will render the subsequent proceeding invalid or ineffectual, the party in error may apply to the court on motion for relief by a way of permission to amend or correct the error. Thus, if there is a defect of par- ties or the omission of a material allegation in a pleading, or if a party has failed to take a step within the time limited, and in many such like cases, it is necessary that the party in error should make a motion upon notice to the adverse party for the relief which he requires. But there are irregularities mostly of a technical and formal character which may be disregarded unless the opposite party seeks to avail himself of them affirm- atively. Thus, technical defects in the form of papers or in their mode of service, such as that a paper is not folioed or properly endorsed, are waived if the paper is retained or the § 335-] AMENDMENTS AS TO PARTIES. 297 party appears. There are many such departures from the pre- scribed practice which the party in error may correct by motion or which will furnish the adverse party a ground for a motion to set aside or vacate the erroneous proceedings. It is to be remarked, however, that questions of irregularity cannot be raised by appeal in the first instance. The party complaining of an irregularity not jurisdictional must apply to the court for the relief to which he thinks himself entitled by reason of the defect, and if his application is denied, he may in a proper case then appeal from the order of denial. When the motion is for an irregularity, the notice of motion or order to show cause must specify the irregularity com- plained of (Rule 37). An illustration of what is here meant is found in the case where a warrant of attachment is irregular in not having the name of the plaintiff's attorney upon it; that is a mere irregularity, and a motion made based upon it must specify the irregularity ; but a motion made to vacate a war- rant of attachment on the insufficiency of the papers upon which it was granted is not based upon an irregularity, but upon the merits, and the notice need not specify the ground on which the motion is made. The general rule is that all motions based on mere irregularities must be made promptly. Low v. Gray don, 14 Abb. Pr. 444. § 335- Amendments as to parties. (Co. Civ. P. § 723.) — It is quite impracticable to consider the amendments which may be allowed in all the various proceedings in an action. We shall confine ourselves to some illustrations arising in the case of amendments as to parties and pleadings. As to parties : The authority is expressly conferred upon the court to amend any process, pleading, or other proceeding by adding or striking out the name of a person as party or by correcting mistake in the name of a party. But this provision does not authorize the striking out of the name of a sole de- fendant in. an action and the substitution in lieu thereof of the names of other persons as defendants. TV. Y. St. Milk Pan Ass. v. Remington A. Wks., 89 N. Y. 22 ; Bassett v. Fish, 75 N. Y. 304. But when the action is brought by the proper person under a wrong name {Bank of Havana v. Magee, 20 N. Y. 355), or against the proper person, but under a wrong name or description (Skoog v. TV. Y. Novelty Co., 4 Civ. Pro. 144 ; McElwain v. Corn- 298 INTERLOCUTORY PROCEEDINGS. [CH. XIII. ing, 12 Abb. 16; 14 Civ. Pro. 126), such errors may be corrected by amendment, and the court may strike out the name of one of several defendants, permitting the action to proceed against others {Ackley v. Tarbox, 31 N. Y. 564), or may strike out the name of one of several plaintiffs (Lapham v. Rice, 55 N. Y. 472). But it may not bring in a new party as defendant by a mere verbal order made on the trial. Hood v. Hood, 85 N. Y. 5 6r. Although under § 452, where a complete determination of the controversy cannot be had without the presence of other parties, the court may order them to be brought in; yet where an application for this purpose is not made before trial, but the defect appears upon the trial, the court will either dismiss the complaint without prejudice to a new action or permit the case to stand over to allow the motion to be made at Special Term. Sherman v. Parish, 53 N. Y. 483. As we have hereto- fore remarked, this practice while permitted in equity suits would seldom be proper in an action at law. Webster v. Bond, 9 Hun 437- § 336. Amendment of pleading. (Co. Civ. P. § 723.) — The only limitation of the power of the court to amend a pleading is that it shall not change substantially the claim or defence. Here we must distinguish between the power of the court on motion before trial, and an application at the trial. Before trial. — It has been held that the court before trial at Special Term can order an amendment of a complaint setting up a new cause of action although the statute of limitations has run against it. Hatch v. Cent. Nat. Bk., 78 N. Y. 487. It may change the nature of the action from warranty to deceit. Eighmie v. Taylor, 39 Hun 366. See Rumsey, vol. i., p. 2S5. So the answer may be amended at Special Term so as to embrace a new defence. Diamond v. Williamsburgh Ins. Co., 4 Daly 494 ; Marx v. Gross, 58 Super. 221. On an application for leave to amend a pleading at Special Term, the proposed amended pleading should be served with the motion papers. Some ground showing excuse for the error should be stated. It is not enough for the party to simply assert that he is ad- vised that an amendment is desirable. Upon the trial, while the court may always disregard an im- material variance between the pleading and the proof, the § 337-] RIGHT TO AMEND DISCRETIONARY. 299 power of amendment is limited to a case " where the amend- ment does not change substantially the claim or defence." An amendment on the trial changing the nature of the action by introducing an entirely new cause of action is not allowable. See Avery v. N. Y. C. & H. R. Co., 106 N. Y. 142. When the parties proceed with the trial and evidence is received without objection supporting material matters which are not set out in the pleading, the court may permit the pleading to be amended to conform to the proofs. But the pleading cannot be conformed to the proof when there is an objection taken in due time to the sufficiency of the pleading. Rutty v. Cons. Fruit Jar Co., 52 Hun 492. The object of this provision of the Code is to allow a party who has attempted to plead a cause of action or defence, but has omitted some material averment, to correct the error upon the trial by supplying the necessary averment. But it does not authorize the court upon the trial to allow a party to amend his pleading by setting up a new cause of action or defence. Baylies' Trial Prac. 211. A fair test to determine whether a new cause of action is alleged in the amended complaint is to inquire whether a recovery had under the original complaint would have been a bar to any recovery under the amended complaint. Davis v. N. Y., L. E. &* IV. R., no N. Y. 646. After trial no amendments will be allowed except those which sustain the judgment (81 N. Y. 268). None will be allowed which would substantially change the cause of action or defence as alleged or the nature of the cause of action (84 N. Y. 420, 428). Wherever the court below should have directed the amendment to be made the case may be argued on appeal as if it were actually made to conform to the facts proved. Bowdoin v. Caiman, 6 Duer 183. The General Term may upon appeal amend the pleadings to conform to the facts proved (Haines v. Tumbridge, 83 N. Y. 92), and so may the Court of Appeals [Pratt v. Hudson River R.R., 21 N. Y. 305). § 337- Right to amend discretionary. — An amendment is not a matter of right, but is an appeal to the favor of the court, and it may be granted upon such terms as the court may deem just, and this is a power which the court should exercise fully and liberally in furtherance of justice. Campbell v. Campbell. 23 State R. 352. The power is inherent in the court, the stat- 300 INTERLOCUTORY PROCEEDINGS. [CH. XIII. ute being merely declaratory (88 N. Y. 285). Since granting or refusing leave to amend is discretionary, the order of the court below will not be reviewed on appeal, but when the order is refused on the ground of want of power, it is appealable {Rus- sell v. Conn, 20 N. Y. 81), but an order allowing a complaint to be amended by inserting a new cause of action is appealable to the General Term {Sheldon v. Adams, 41 Barb. 54). § 338. Amendment of other proceedings. — The power to amend is not limited to process or pleadings, but extends to other proceedings, and may be exercised in a great variety of instances which will be found in works on practice. See 1 Rum- sey's Prac. 636 et seq. § 339- Relief against omissions and mistakes. (Co. Civ. P. § 724.) — Under this section the court has power to open judgments and defaults, but the power is inherent in the court and is not dependent on statute. Vanderbilt v. Schreyer, 81 N. Y. 646. It seems that it is only in cases when the application to open the default is made on the ground of surprise or mis- take that it must be made within a year after notice of the judgment, order, etc.; if the application is based on fraud, the limitation does not apply. Dinsmore v. Adams, 66 N. Y. 618. See Code, § 1282 et seq. § 340. Amendment of officer's return — Original sup- plied by copy — Alteration without order not permitted. (Co. Civ. P. §§ 725-727.) — The return of a sheriff or other officer may be amended in matters of form (§ 725). The place of an original paper which has been lost may be supplied by a copy (§ 726). A process, pleading, or record cannot be altered by the clerk or any other officer of the court or by any other per- son without the direction of the court or of another court of competent authority, except in a case where a party or his attorney is specially authorized by law to amend a pleading (§727). § 341. Affidavits, requisites of— Defects in. (Co. Civ. P. § 728.) — The formal requisites of an affidavit are the title, venue, signature, and jurat. This section provides that the want of title or defect in the title of an affidavit does not impair it if §§ 34 2 > 343-] BONDS AND UNDERTAKINGS. 301 it intelligibly refers to the action or special proceeding in which it is made. Without a venue an affidavit is a nullity (12 Hun 378; 18 Barb. 407; 6 How. Pr. 394; 61 N. Y. 52). The reason is, that it is important that the affidavit should indicate the county in which it was taken in reference to a prosecution for perjury (18 Barb. 408), but the venue may be supplied by amendment (1 City Ct. 57). For a similar reason the signature at the foot of the affidavit is requisite (11 Paige 173), but the omission of the name of the affiant in the body of the instru- ment, if it is signed and has a venue and jurat, is not import- ant (81 N. Y. 1). The statute specifies the officers before whom an affidavit may be taken (§ 842), and it provides that when certified by the officer to have been taken before him, it may be used in any court or before any officer or other person. The certification or jurat, therefore, is essential to the competency of the affi- davit as evidence (1 Den. 429), but it may be supplied nunc pro tunc (59 N. Y. 597). §342. Bonds and undertakings — Amendment. (Co. Civ. P. §§729, 730.) — A bond or undertaking required to be given by statute is sufficient if it substantially conforms to the form required by the statute and if the variation is not preju- dicial to the party for whose benefit it is given (§729). Where a bond is defective, it may be amended on the application of the parties who executed it (§ 730). The consent of the obli- gors to any change in the bond is essential (14 How. Pr. 94; 1 N. Y. 606), but with their consent a bond filed may be amended or a new bond may be given nunc pro tunc. Thus, the court may permit an undertaking on arrest to be amended on an application for a discharge (2 Abb. 441) or an undertaking on attachment (10 Abb. 424), and the court may permit the bond or undertaking to be given nunc pro tunc as of the time of its original execution. TENDER AND OTHER OFFERS. (Co. Civ. P. §§ 731-735.) § 343. Generally. — As to tender generally, it is to be said that in every contract by which a party binds himself to deliver goods or pay money to another, he in fact engages to do an 302 INTERLOCUTORY PROCEEDINGS. [CH. XIII. act which he cannot completely perform without the concur- rence of the party to whom the payment or delivery is to be made. Without acceptance on the part of him who is to re- ceive, the act of him who is to deliver or pay can amount only to a tender. But the law considers such a tender to be a sub- stantial performance on the part of the person who makes it. Startup v. Macdonald, 6 Man. & G. 593, 610 ; 7 Wait's Actions & D. 577. Tender of payment, however, does not operate to dis- charge the debt, but simply to extinguish damages in the way of interest and costs. While it is not payment it is equivalent to payment as to all things which are incidental and acces- sorial to the debt. Kortrigktv. Cady, 21 N. Y. 343-346. When regularly and properly made it discharges a lien, and while the debt is not paid the security is discharged. This is true of a mortgage debt. Upon due tender of the amount due, the lien of the mortgage is destroyed (21 N. Y. 343), but to have this effect the tender must be made after the debt has matured (114N. Y. 204). Tender must be unqualified and unconditional (114 N. Y. 204). But this statement has an exception. A tender may be restricted by such conditions as by the terms of the contract are conditions precedent or simultaneous to the payment of the debt. Halpinv. Phcenix Ins. Co., 118 X. Y. 165. Thus, one liable to pay money secured by a written instrument has a right as a condition of tender and payment to demand the return of the instrument. Bailey v. County of Buchanan, 115 N. Y. 297. In order to constitute a sufficient tender there must either be an actual production of the money, or the production of it must be dispensed with by the express declaration or an equivalent act of the creditor. Eddy v. Davis, 116 X. Y. 247. When a tender is rejected on a specified ground, no other ob- jection which could have been obviated can afterward be relied on {Duffy v. O 'Donovan, 46 N. Y. 223), as where the ten- der was rejected on the ground that it was not made in time, and not because it was not made in money (Ibid.). A refusal to accept an actual tender if made excuses one from making it. Blewett v. Baker, 58 N. Y. 611. § 344. Tender under the Code. (Co. Civ. P. § 731.)— These general principles are a nart of the general system of law independent of the Code. The Code has made no radical § 345 -J EFFECT OF SUFFICIENT TENDER. 303 changes in the law of tender. It provides for a tender after suit brought in the cases mentioned in this section, and the result of such a tender, if made and followed up as provided by § 732, is simply to relieve the plaintiff from payment of costs and interest after the tender. The mere tender of the money after suit brought, unless it is accepted by the opposing party, or is paid into court and the notice given as prescribed, amounts to nothing in the way of relieving the defendant. It is to be borne in mind that these sections have reference to tender made in an action to recover a sum certain, etc., and the purpose is to relieve the party from the expense of the suit where he is willing to pay all that is in fact due, and in such a case the money must be paid into court; but these sections do not change the rule as to the effect of a tender as discharging a lien. For that purpose it is not necessary that the tender should be kept good by payment into court. Tuthill v. Morris, 81 N. Y. 94 ; Cass v. Higenbotam, 100 N. Y. 248. Nor have these sections any application to cases where a tender is made of purchase-money on condition of a delivery of the deed and tender of a debt on condition of a return of pledge and cases of a similar character. Cass v. Higenbotam, 100 N. Y. 254. Tender cannot be made in an action for unliquidated dam- ages except those mentioned (24 Wend. 31), nor in an action in equity (9 How. Pr. 398). An instance of an action " to recover damages for a casual and voluntary personal injury or a like injury to property," where tender was regarded as proper, is Slack v. Brown (13 Wend. 390), which was an action for injuries to a vessel by collision. § 345. Effect of sufficient tender. (Co. Civ. P. §§ 733, 734.) — The result of a sufficient tender is to prevent the plain- tiff from recovering costs or interest from the time of tender, but the plaintiff must pay the defendant's costs. If the tender is not sufficient it must be deducted from the recovery and judgment must be rendered for the deficiency. In this respect there seems to be a distinction between tender before suit brought and under the sections of the Code which apply only to tender after suit brought. Where an insufficient tender is made before suit brought, which is kept good by de- posit, the judgment should be entered for the whole recovery 304 INTERLOCUTORY PROCEEDINGS. [CH. XIII. and the amount of the deposit credited after entry. Goldstein v. Stern, 29 State R. 661. The tender and payment of the sum tendered into court admit the right of the opposing party to such sum. Wilson v. Doran, no N. Y. 101. The money deposited becomes the money of the plaintiff, and he is entitled to take it at any time. Hence, when a defendant pays into court a certain amount with costs to date, he runs the risk of losing that amount of money in the event of his success upon the trial. Such moneys belong to defendant in any event. Taylor v. Brooklyn El. R., 119 N. Y. 561. See Wilson v. Doran, 39 Hun 90. OFFER TO ALLOW JUDGMENT. (Co. Civ. P. §§ 738-740.) The purpose of these sections is to enable a defendant against whom an excessive claim is made, to offer that such judgment be taken against him as he deems to be right while leaving himself free to contest the remainder of the claim upon equal terms with his adversary as to costs. If the plaintiff is not willing to accept such judgment as the defendant is willing he should have, he must recover a more favorable one or be subject to the payment of costs. The offer under these sections may be made in any case, — in a suit in equity as well as in an action at law (121 N. Y. 644), as in a foreclosure suit (63 N. Y. 261), or in replevin (115 N. Y. 170). The debtor may use this method as a means of giving a pref- erence to one creditor over another by making an offer of judgment to the plaintiff in one action upon which he may forthwith enter judgment and secure a levy on the debtor's property, while other creditors are compelled to await the lapse of the prescribed time before they can enter judgment. The giving of a priority by this means is not fraudulent. Beards v. Wheeler, 76 N. Y. 213. Nor is it any ground for set- ting aside a judgment entered upon an offer that by means thereof Lhe plaintiff has obtained a judgment upon grounds which would not sustain a confession of judgment. Trier v. Herman, 115 N. Y. 163. If there are two or more defendants and the action can be § 346.] OFFER BY PLAINTIFF. 305 severed, an offer may be made by one or more defendants against whom a separate judgment may be taken (§ 738). So if a defendant severally liable makes an offer of judgment, judgment may be entered against him, and the action may be severed and proceed against the other defendants. If the defendants are jointly liable, a judgment agajnst all can be entered only upon an offer made by all. Griffiths v. De Forest, 16 Abb. Pr. 292 ; Garrison v. Garrison, 67 How. Pr. 271. If judgment is entered upon the offer of one joint debtor, the judgment will be available against him only {Rich v. Roberts, 18 Civ. Pro. 205), and the remaining joint obligors will be dis- charged. Heckemannx. Young, 55 Hun 406; Candeev. Smith, 93 N. Y. 352. See Kantrowitz v. Kulla, 13 Civ. Pro. 74. This arises from the peculiar obligation of joint debtors by which judgment against one merges the right of action against the others (93 N. Y. 351). Hence one partner cannot make an offer of judgment which will bind his copartner or firm property. Everson v. Gehrman, 1 Abb. 167. The offer must be definite in its terms, otherwise it may be treated as a nullity (12 How. Pr. 552; 7 Bosw. 660), and must include an offer for costs. An offer "with costs to date" includes all the costs to which the plaintiff is entitled and is sufficient. Leslie v. Walrath, 45 Hun 18 ; Lynk v. Weaver, 128 N. Y. 171. The offer must be made ten days before the trial, otherwise it is of no avail. Perinev. Wiggins, 18 Civ. Pro. 173; 10 Hun in. The words "written offer" do not require that the original should be served. It has been held sufficient to serve a copy of the offer; the plaintiff can compel the filing of the original that he may enter judgment. Smith v. Kerr, 49 Hun 29. The original must either be subscribed by the party — in which case it must be acknowledged; or by the attorney — in which case the attorney must annex his affidavit to the effect that he is duly authorized to make it on behalf of the party (§ 740). In such a case an unverified offer is a nullity. -Riggs v. Waydell, 78 N. Y. 586. § 346. Offer by plaintiff. (Co. Civ. P. § 739.)— Where the defendant sets up a counterclaim to an amount greater than the plaintiff's claim, or sufficient to reduce the plaintiff's recov- 20 306 INTERLOCUTORY PROCEEDINGS. [CH. XIII. ery below fifty dollars, the plaintiff may serve upon the defend- ant's attorney a written offer to allow judgment to be taken against him for a specified sum and against the plaintiff for costs. § 347. Effect of refusal of offer. (Co. Civ. P. § 738.)— If the offer is nop accepted by the opposite party and the case proceeds to trtkl, the party upon whom the offer was served must recover a more favorable judgment than that offered, or he cannot recover costs from the time of the offer, but must pay costs from that time. What constitutes "a more favorable judgment"? In an action for a money judgment the figures show whether the judgment is more favorable than the offer, but in making the comparison interest allowed by the verdict after the date of the offer must be deducted, or interest on the amount offered from date of offer be allowed. Smithv. Bowers, 3 Civ. Pro. 72; 13 Civ. Pro. 125; Bathgate v. Haskin, 63 N. Y. 261. In equity cases it will be for the court to determine whether the judgment is more favorable than the offer (16 Hun 404). In every case where the plaintiff recovers more than fifty dollars, he will be entitled to costs up to the time of the offer, and whether he is entitled to any further costs will depend upon whether his recovery is more favorable than the offer. Magnin v. Dinsmore, 46 How. Pr. 297. §348. Acceptance. — If the offer is accepted, the party accepting it may within ten days serve a notice that he accepts the offer, and either party may file the summons, complaint, answer, offer of judgment, and notice of accept- ance, or copies and proof of acceptance, and thereupon the clerk must enter judgment (§ 739). This judgment may be entered without notice to the other side (9 How. Pr. 525). OFFER TO LIQUIDATE DAMAGES. (Co. Civ.. P. g§ 736, 737-) Sections 736 and 737 permit the defendant's attorney in an action to recover damages for breach of contract to serve wi.h his answer a written offer that if the defendant fails in his de- fence the damages may be assessed at a specified sum (§ 736). § 349-] SURVIVAL OF CAUSES OF ACTION. 307 If the plaintiff accepts the offer with or before his notice of trial, and plaintiff recovers damages, they must be assessed ac- cordingly. If he does not accept the offer he cannot prove it upon the trial, and if the damages recovered do not exceed the amount offered the defendant can recover the expenses of pre- paring for the trial of the question of damages (§ 737). These sections are seldom resorted to. PROCEEDINGS UPON THE DEATH OR DISABILITY OF A PARTY. (Co. Civ. P. §§ 755-766.) § 349. Survival of causes of action. — At common law a distinction existed between actions ex contractu and actions ex delictu respecting survivorship. Originally all actions arising ex delictu died with the person by whom or to whom the wrong was done. The maxim of the law was actio personalis moritur cum persona, but this maxim applied not to all personal actions, but, as we have said, to actions ex delictu merely. It will be diffi- cult to find a satisfactory reason why a right of action for services rendered should survive against the estate of a debtor while a right of action for damages resulting from the loss of ability to labor occasioned by a wilful injury to a man's right hand does not survive against the estate of the wrong-doer. There is room for interesting speculation as to the origin of this dis- tinction, which perhaps arose from the obligation which the ecclesiastical law imposed upon the conscience of the executor to pay the debts of the decedent, which were in the nature of an equitable charge upon the estate, while no such reason operated to. compel him to make atonement for the torts com- mitted by the decedent. However that may be, the distinction between actions ex contractu and ex delictu, in this regard, was well established at common law, although the rule was relaxed in the case of conversion of personal property by the decedent whereby his estate had been enhanced, in which case a remedy was given by statute to the injured party (4 Ed. III., c. 7). The history of the legislation and decisions on this subject are re- viewed in the opinion of Ruger, C. J., in Hegerich v. Keddie (99 N. Y. 258). The Revised Laws enlarged the scope of the statute 4 Ed. III. (1 R. L., pp. 311, 312). The provisions of the Revised Statutes on this subject are as follows: "§ 1. For wrongs done 308 INTERLOCUTORY PROCEEDINGS. [CH. XIII. to the property rights or interests of another for which an action might be maintained against the wrong-doer, such action may be brought by the person injured, or after his death by his executors or administrators, against such wrong-doer, and after his death against his executors or administrators, in the same manner and with the like effect in all respects as actions founded upon contracts. § 2. But the preceding section shall not extend to actions for slander, for libel, or to actions of assault and battery or false imprisonment, nor to actions on the case for injuries to the person " (R. S. 447, 448, §§ 1, 2). In Hegerich v. Keddie {supra) these sections are carefully con- sidered, and it was there held that the "property rights or in- terest '' referred to in the statute are strictly confined to prop- erty rights only, and where the cause of action arises purely from an injury to the person it does not survive, even though not included in the cases mentioned in the second section. We may then for general purposes state the rule-as to sur- vival of actions thus: All causes of action arising ex contractu survive the death of either party; of causes of action arising ex delictu, those that arose out of wrongs done to the property rights or interests of another for which an action might be maintained against the wrong-doer, survive ; all other torts abate. It has been held that the following causes of action abate (some of which, it will be observed, are exceptions to the general language above employed): An action for divorce (21 Wkly. Dig. 174) ; an action for breach of promise to marry ( Wade v. Kalbfleisch, 58 N. Y. 282) ; for the seduction of plain- tiff's daughter (Holliday v. Parker, 23 Hun 71) ; for inveigling the plaintiff into marriage by false representations (Price v. Price, 75 N. Y. 244); for libel or slander (Spooner v. Keeler, 51 N. Y. 527); a cause of action for personal injuries (Cox v. N. Y. Cent. R.R., 63 N. Y. 414); an action for malpractice (Best v. Vedder, 58 How. Pr. 187); an action against a trustee of a cor- poration for failure to file an annual report (Braciett v. Griswold, 103 N. Y. 425) ; an arbitration (Manning v. Pratt, 18 Abb. Pr. 344). § 350- Provisions of the Code as to abatement. (Co. Civ. P. § 755.) — This section provides that an action does not abate by any event if the cause of action survives or continues. At common law the death of a sole plaintiff or defendant be- fore final judgment ended the action, and that was so even §351-] DEATH OF A SOLE PARTY. 309 though the cause of action survived. It was thus rendered necessary to bring a new action in such a case in the event of the survival of the cause of action, or if the suit was in equity it could be continued by means of a bill of revivor. The abatement of the action was avoided by statute (8 and 9 Wm. III., c. 2, §§ 6, 7), and provision was made for continuing the action if it survived by or against the legal representative by 1 R. L. 519; 2 R. S. 402, § 2. The Code does not attempt to alter the provisions of the common law or of the Revised Statutes as to the suvivorship of actions. Blake v. Griswold, 104 N. Y. 613. Section 1910, providing that any claim or demand can be transferred except those specified, did not operate to vary the existing rule as to survivorship; for while it is true as a general proposition that causes of action which survive are assignable, yet the legislature might and did enlarge the category of causes of action which are assignable without enlarging the category of those which survive. Blake v. Griswold, supra. The pro- visions of the Revised Statutes to which we have referred, as interpreted by the courts, determine as to what causes of action survive. § 351. Continuance upon death of a sole party. (Co. Civ. P. § 757.) — The case of a sole party plaintiff or defendant is provided for by § 757. The action is to be continued by motion to allow or compel its continuance by or against the representa- tive or successor of the deceased (§ 757). Holsmanv. St. John, 90 N. Y. 461. This section applies also to a case where both the plaintiff and defendant are dead. But although the cause of action does not abate, yet, since an application to the court is necessary to authorize its revival or continuance, the court may, on the ground of inexcusable laches, and where other- wise irreparable injury will be suffered by the opposite party, deny the application. Lyon M.Park, in N. Y. 350; Matter of Palmer, 115 N. Y. 493. That the statute of limitations had run would be a ground of denial in an equity suit, but it has been said that the same rule would not apply in an action at law (Lehman v. Koch, 30 State R. 224), though in the case last cited (Lyon v. Park, supra, — an action at law) was not referred to. The words "successors in interest," who are to be substi- tuted, means the owners of the right which is the subject of 3IO INTERLOCUTORY PROCEEDINGS. [CH. XIII. litigation, as the heirs at law when the action is with regard to real estate, or the executors or administrators if it relates to personal property. Green v. Marline, i Civ. Pro. 129. § 352. When one of several parties dies. (Co. Civ. P. § 758.) — " In case of the death of one of two or more plaintiffs, or one of two or more defendants, if the entire cause of action survives, the action may proceed in favor of or against the sur- vivors." An illustration is found in an action by or against partners in the event of the death of any partner or number of partners less than all; the action proceeds by or against the survivors, and no order is needed except to strike the name of the deceased from the record. Taylor v. Church, 9 How. Pr. 190; Shale v. Schantz, 35 Hun 622. This applies to joint inter- ests and obligations. When the action is brought by tenants in common for a conversion of property, the action should be continued in the name of the survivor. Bucknam v. Brett, 35 Barb. 596. But when an action of ejectment is brought by tenants in common, if one of them dies, his heirs at law must be substituted, or the remaining plaintiff can recover only his interest. Hasbrouck v. Bunce, 62 N. Y. 475. The last clause of this section alters a rule of law and not a rule of practice. Previous to the enactment of that provision the rule was that the estate of a joint obligee who was a mere surety was discharged by his death and the right of action was against the survivors alone. Getty v. Binsse, 49 N. Y. 385; Ris- ley v. Brown, 67 N. Y. 160. This provision continued the lia- bility against the representatives of the deceased joint surety, and hence as to obligations executed before its enactment was obnoxious to the constitutional provision prohibiting States from passing laws impairing the obligations of contracts. Ran- dall v. Sackett, 77 N. Y. 480; Chard v. Hamilton, 56 Hun 259, affi'd 125 N. Y. 777. The practice in the case where the entire cause of action does not survive, but only part, is provided by § 759. § 353. Transfer of interest or devolution of liability. (Co. Civ. P. § 756.) — A party succeeding to the plaintiff's right may continue to prosecute the action in the plaintiff's name as though no change had taken place (7 Abb. N. C. 194; 37 Super. 135). It is optional with the court whether or not to allow the §§354,355-] DEATH OF PART OF PARTIES. 311 substitution of the assignee. Getty v. Spaulding, 58 N. Y. 636. In other words, if the plaintiff assigns the cause of action after suit brought, he may continue in the name of the original plain- tiff; whereas, if the assignment of the cause of action took place before the action was brought, it would have been neces- sary for the assignee to bring it in his own name, since he would be the real party in interest. A defendant cannot com- pel the assignee of the claim to become plaintiff (17 Abb. 318). If the assignee of the claim desires to be substituted as plain- tiff, the procedure is to move on notice. Howard v. Taylor, 11 How. Pr. 380. When the sole party plaintiff or defendant dies, the applica- tion to revive must be by motion, and notice of the motion must be given to the adverse party (8 Daly 474). If the appli- cation is to continue the action against the representatives of the deceased, and the motion is granted, the representatives can be brought in by supplemental summons and complaint (§ 760). When the defendants have claims between each other, and one defendant desires to bring in the representatives of a deceased defendant, the court may order this to be done by directing that a cross action be brought (§ 760). § 354. Death of part of parties; when part of cause of action survives. (Co. Civ. P. §§ 759, 760.) — These sections seem to provide for a case where one of several plaintiffs or defend- ants dies, and part of his right of action or liability devolves upon the other party, in which case the court may proceed to deter- mine the action as to the rights remaining in or against the surviving parties without bringing in the persons not parties to or against whom the remaining interest exists, or the court in its discretion may require or permit such persons to be brought in. The section seems to apply solely to equitv suits. See Leggett v. Dubois, 2 Paige 211 ; White v. Buloid, Ibid. 475; Hoffman v. Tredwell, 6 Paige 308. § 355- Death of a party after verdict. (Co. Civ. P. § 763.) — If either party to an action dies after an accepted offer to allow judgment to be taken or after a verdict, report, or decision, or an interlocutory judgment, but before final judg- ment, the court must enter final judgment in the names of the original parties unless the offer, verdict, report, or decision of the interlocutory judgment is set aside. 3 12 INTERLOCUTORY PROCEEDINGS. [CH. XIII. § 356. Action for personal injury not to abate by death. (Co. Civ. P. § 764.) — The last clause was added in 1890; before that it had been held that the section was applicable only to a verdict, report, or decision in favor of the plaintiff so long as it stood unreversed {Kelsey v. Jewett, 34 Hun 11), but that it had no application to a case in which a nonsuit had been granted (Coriertv. 2 id St. R.R. Co., 114 N. Y. 579), or where the judg- ment in favor of plaintiff had been reversed on appeal (34 Hun 11). MOTIONS AND ORDERS. (Co. Civ. P. §§ 767-779-) § 357- Definitions. (Co. Civ. P. §§ 767, 768.)— A written direction of a judge or court, unless it is contained in a judg- ment, is an order (§ 767). An application for an order is a motion. A motion made on notice is a contested motion ; every other application for an order is ex parte. Contested motions are either enumerated or non-enumerated . Rule 38 declares that "Enumerated motions are motions arising on special verdict ; issues of law ; cases ; exceptions ; appeals from judgments sus- taining or overruling demurrers ; appeals from a judgment or order granting or refusing a new trial in an inferior court ; appeals by virtue of §§ 1346 and 1349 ; agreed cases submitted under § 1279 ; appeals from final orders and decrees of Surro- gates' Courts and matters provided for by §§ 2085, 2099, and 2138 of the Code. Non-enumerated motions include all other questions submitted to the court, and shall be heard at Special Term except when otherwise directed by law." Enumerated motions therefore are special and will naturally come up for consideration under special topics. § 358. Where motion in Supreme Court heard. (Co. Civ. P. §§ 769, 770, 771.) — The rule in regard to motions in the first district is different from that in every other district. In the first judicial district no motion can be made except in actions triable in that district, and these motions need not be made at Special Term, but may be noticed and made before a judge out of court. In other judicial districts all motions must be made at a Special Term, and subject to special regulations of par- ticular districts; they may be noticed at a Special Term held in any county in the judicial district where the action is triable, and if that county adjoins a county in any other judicial dis- § 3 59- J MOTION PAPERS. 313 trict they may be made in such adjoining county (1 Rumsey, p. 191). But this section applies only to motions on notice. Aiict parte application may be made in the 1st district in an action tri- able elsewhere, and so may an ex parte order be made elsewhere in the State in an action triable in New York {Hull v. Hart, 27 Hun 21 ; Erisman v. Pidcock, 62 How. Pr. 327), and it relates only to motions made while the action is pending and not to such as may be made in proceedings instituted after recovery of judgment (Curtis v. Greene, 28 Hun 294). When a motion is made returnable before a judge out of court, who for any cause is unable to hear it, it may be trans- ferred by his order or by stipulation to another judge before whom it might have been originally made (§ 771). § 359- Motion papers. — Rule 19 provides that all papers exceeding two folios in length shall be folioed and copies shall correspond, and all papers and copies must be fairly and legi- bly written, and if not so written and folioed the clerk is directed not to file them, nor will the court hear any motion or application founded thereon. Service of letter-press copies of papers or type-written copies is not permitted except where type-written copies are in black characters and on paper of at least fourteen pounds to the ream. A party will be deemed to have waived objection to the copy served unless he returns it within twenty-four hours. Copies of all the papeis to be used upon the motion must be served with the notice of motion (Rule 24), and the notice of motion must state upon what papers the motion will be made; but if the motion is based upon pleadings which have been served, or if the papers to be used on the motion have been served upon the opponent or are in his possession, it is not necessary to serve them again, but the notice of motion must state that the motion will be made upon them (Newbury v. Newbury, 6 How. Pr. 182; Van Benthuysen v. Stevens, 14 How. Pr. 70), and the moving party can read on the motion only the papers which are referred to in the notice of motion and which have been served (2 How. Pr. 77). The court may and often does permit the moving party to read affidavits in reply to new matter contained in the opposing affidavits. The notice of motion in other districts than the first in the Supreme Court may be for the first day of the term, unless 3H INTERLOCUTORY PROCEEDINGS. [CH. XIII. sufficient cause be shown for not giving the notice for that day (Rule 21). If the motion is for irregularity, the notice must specify the irregularity complained of (Rule 37). The notice should recite the papers on which the motion is to be made, the time and place when it will be made, and the relief desired, and in addition to the specific relief asked, there should always be a prayer for general relief. Under this prayer any relief consistent with the facts as they are made to appear at the hearing may be granted. People v. Nostrand, 46 N. Y. 375; Bis- sellv. JV. Y. C. &» H. R. R.R. Co., 67 Barb. 385. The notice of motion and motion papers must be served eight days before the hearing (§ 780), if served personally. If served by mail, they must be served sixteen days before the hearing (§ 798). § 360. Order to show cause. — An order to show cause is merely another form of notice of motion. The purpose is to enable a party to bring his motion to a hearing in less than eight days. When the moving party desires this shortened time, he must state the reason in his moving papers, and upon the affidavits he proposes to use on the motion he may apply to a judge of the court or a county judge for an order requiring the opposing party to show cause at a time and place specified why he should not have the order or relief demanded. The order must contain a direction as to the time within which service of the order shall be sufficient (§ 780). Rule 37 provides that an order to show cause shall in no case be granted unless a special or sufficient reason for requiring a shorter notice than eight days shall be stated in the papers presented, and the party shall in his affidavit state the present condition of the action, and whether at issue ; and if not yet tried, the time appointed for holding the next trial term or circuit when the action is triable. The order shall also (except in the first judi- cial district) be returnable only before the judge who grants it, or at Special Term appointed to be held in the district in which the action is triable. It has been held that an order to show cause returnable in more than eight days is a nullity. Vale v. Brooklyn C. T. R.R. Co., 12 Civ. Pro. 102; but see Gross v. Clark, 1 Civ. Pro. 17. The refusal of a judge to grant an order to show cause does not prejudice the moving party's right to bring on his motion § 36 [.J EX PARTE ORDERS. 315 by the ordinary notice. Grossman v. Supre?ne Lodge, 22 State R. 522. Rule 25 provides that whenever application is made ex parte on affidavit to a judge or court for an order, the affidavit shall state whether any previous application has been made for such order, and if made, to what court or judge, and what order or decision was made thereon, and what new facts, if any, are claimed to have been shown. And for an omission to comply with this rule, an order made on such application may be revoked or set aside. The omission to comply with this rule is an irregularity which does not compel the court to refuse the order, but it may do so. Bean v. Tonnelle, 24 Hun 353. An order to show cause being an ex parte order, is within the require- ments of this rule. § 361. What judges may make ex parte orders. (Co. Civ. P. § 772.) — An order which a judge may make ex parte may be made by any judge of the court in which the action is pend- ing in any part of the State, and except to stay proceedings after verdict, report, or decision, it may also be made, although the action be not pending in these courts, by a justice of the Supreme Court or by a judge of a Superior City Court within the city wherein his court is located, or by the count3 r judge of the county where the action is triable or in which the attorney for the applicant resides. Where such an order grants a pro- visional remedy it can be vacated only in the mode specially provided by law; in any other case it may be vacated or modi- fied without notice by the judge who made it, or upon notice by him or by the court. It has been held that this section does not confer any other or different power as to the granting of a provisional remedy beyond those specially conferred by the previous sec- tions of the Code, and hence that a judge of the Court of Common Pleas had no authority to grant an injunction order in an action pending in the Superior Court of the city of New York. People v. Edson, 52 Super. Ct. 53. Nor can a county judge make an order to show cause returnable in less than eight days in an action pending in the Su- preme Court (25 Hun 254). He may vacate his own order made ex parte (13 Abb. N. C. 374), but the authority conferred upon a judge by this section to vacate orders made by him, relates exclusively to orders made in aetions before final judg- 3l6 INTERLOCUTORY PROCEEDINGS. [CH. XIII. merit (48 Hun 76). The limitation of this section of the county judges who may make an order does not apply to a case where it is prescribed by the statute in general words that a, particular order may be made by a county judge or by any county judge (§ 773). § 362. Stay of proceeding not to exceed twenty days. (Co. Civ. P. §775.) — It frequently becomes important, in order that a party may obtain the relief he desires, to move that the proceedings of the opposite party should be stayed until a motion can be heard; in such a case the court or judge may grant a stay of proceedings by order made as part of the order to show cause or made to accompany a notice of motion, but the power of the court or judge to grant such a stay ex parte is limited by this section to twenty days, and it has been held that an order staying proceedings for a longer period than twenty days is a nullity and may be disregarded. Bangs v. Sei- dell, 13 How. Pr. 374 ; 5 Hill 568 ; 1 Rumsey 205. The safer course, however, is to move to vacate the stay. Rule 37 provides that "no order except in the first judicial district served after the action shall have been noticed for trial, if served within ten days of the Circuit or Trial Term, shall have the effect to stay the proceedings in the action unless maHe at the Circuit where such action is to be tried or by the judge who is appointed or is to hold such Circuit or Trial Term, or unless such stay is contained in an order to show cause returnable on the first day of such Circuit, in which case it shall not operate to prevent the subpoenaing of witnesses or placing the cause on the calendar.'' § 363. Application for order after denial of prior appli- cation. (Co. Civ. P. § 776.) — A motion once decided cannot be renewed as a matter of right except upon a different state of facts arising subsequently to the former decision, nor without leave of the court for that purpose. This is a rule rendered necessary by the respect due to the proceedings of courts. But the decision of a motion- is not res adjudicata of the rights of the parties in the same sense that a judgment on the merits is. If that were so, the only remedy would be by appeal. First Nat. Bk. v. Clark, 42 Hun 90; Winchester v. Brown, 51 Hun 284; Riggs v. Pur sell, 74 N. Y. 370; East on v. Pickersgill, §§ 364-366.] SECOND APPLICATION FOR JUDGMENT. 3 1 7 75 N. Y. 599. Hence the court may entertain an application for a reargument when the first motion was denied upon tech- ■nical grounds without a hearing upon the merits, or where there are special grounds shown as newly discovered evidence or facts which have been omitted or of which evidence could not be obtained at the first hearing. The application for leave to renew the motion should be made on papers setting out fully the grounds for rehearing, and it should be made to the same judge before whom the previous motion was heard. § 364. Second application for judgment. (Co. Civ. P. §§ 777, 778-) — These sections provide that where an application is made to the court for judgment it shall not be withdrawn without the express permission of the court, and a person who makes a second application with knowledge of the previous application is liable to punishment for contempt. The object of these sections is manifestly to prevent a party from experimenting to learn where he can obtain the most favorable judgment in a case where that might otherwise be done. § 365. Motion costs. (Co. Civ. P. § 779.)— The costs of a motion, which may be a sum fixed by the court or judge not exceeding ten dollars, and referee's fees and printing disburse- ments (§ 3251), are payable within ten days unless the order otherwise fixes the time. If they are not paid an execution may be issued to collect them, " and all proceedings on the part of the party required to pay them except to review or vacate the order are stayed without further direction of the court until the payment thereof." The stay begins to operate from the default in the non-payment of the costs (13 Abb. N. C. 374), and the stay takes effect ipso facto by virtue of the default (1 Abb. N. C. 298), and is absolute and peremptory (15 Abb. N. C. 488). The stay is waived by the party entitled to enforce it, if he gives or accepts notice of trial (47 Super. Ct. 513). GENERAL REGULATIONS RESPECTING TIME. (Co. Civ. Pro. §§ 780-788.) § 366. How time enlarged before its expiration. (Co. Civ. P. §§781, 782.) — When the time within which a proceeding in 318 INTERLOCUTORY PROCEEDINGS. [CH. XIII. an action after its commencement must be taken has begun to run and has not expired, it may be enlarged upon an affidavit showing grounds therefor by the court, or by a judge author- ized to make an order in the action (§ 781). Rule 24 provides that no order extending a defendant's time to answer or demur shall be granted unless the party applying for such order shall present to the justice or judge to whom the application shall be made an affidavit of merits or proof that it has been filed, or an affidavit of the attorney or counsel retained to defend the action, that from the statement of the case in the action made to him by the defendant he verily be- lieves that the defendant has a good and substantial defence on the merits to the cause of action set forth in the complaint or to some part thereof. And the affidavit shall state whether any or what extension or extensions of time to answer or demur have been granted by stipulation or order, and when an extension has been had, the date of issue shall be twenty days after service of the complaint. If no affidavit of merits is served or filed as required by the rule, the order extending the time may be disregarded. Corning v. Roosevelt, 18 Civ. Pro. 193. An affidavit of merits is an affidavit made by the defendant to the effect that he has stated the case to his counsel, and that he has a good and substantial defence on the merits as he is advised by his counsel and verily believes. Neither the Code nor the rules prescribe the form of the affidavit, except as in Rule 24, but the form comes down from the former practice (Graham s Prac. 292). By Rule 22 a motion to strike out part of a pleading as redundant, etc., or to make a pleading more definite and cer- tain, must be made within twenty days from the service thereof. If, therefore, the party desiring an extension of time to plead wishes also to reserve his right to make either of these motions the order of extension should include the time to make such motion. Procuring an extension of time to plead will otherwise be a waiver of any defect in the pleading. Smith v. Pfister, 8 Civ. Pro. 409. A failure to serve a copy of the affidavit on which the order was granted may render the order inoperative (§ 782). Thus, where an order extending time to answer was obtained upon an affidavit of merits not served, it was held that the defendant §§367-369-] RELIEF AFTER TIME HAS EXPIRED. 319 was justified in disregarding it and entering judgment. Corn- ing v. Roosevelt, 18 Civ. Pro. J93. When a foreign or domestic corporation is defendant in an action upon a promissory note or other evidence of debt for the absolute payment of money upon demand or at a particular time, an order extending the time to answer or demur cannot be granted except by the court upon notice to the plaintiff's attorney (§ 1778). § 367. Relief after time has expired. (Co. Civ. P. §783.) — There is a distinction between the power of a judge or court to extend time before its expiration and after its expiration. The former may be done ex parte, but the latter may not. After the time has expired a party may be relieved from a de- fault and his time to plead or to take any other proceeding in an action after its commencement may be extended upon good cause shown, in the discretion of the court, and upon terms, but this can be done only upon motion after notice to the ad- verse party (13 Civ. Pro. 152). An ex parte order extending time after it has expired is a nullity. § 368. When time cannot be extended. (Co. Civ. P. § 784.) — There are three instances prescribed in which the time fixed by law cannot be extended : (1). The time within which to commence an action. The court cannot abolish or waive the operation of the statute of limitations. (2). The time to appeal. (3). The time to continue an action which would otherwise abate by reason of the death or disability of a party. Time to appeal cannot be extended directly or indirectly. Thus an amendment of a notice of appeal cannot be made so as to effectuate an appeal which was not taken in due time. Lavalle v. Skelly, 90 N. Y. 546. But when a party entitled to appeal or to move to set aside a final judgment dies before the expiration of the time within which the appeal may be taken, the court may allow the suc- cessor in interest of the deceased to take the appeal at any time within four months after his death (§ 785). § 369. Actions brought by plaintiff for the benefit of others. (Co. Civ. P. § 786.) — This section has reference to actions brought as provided in § 448 by one or more persons for 320 INTERLOCUTORY PROCEEDINGS. [CH. XIII. the benefit of all who have a common or general interest, — as, an action brought by one creditor to compel the assignee of a debtor who has assigned for the benefit of creditors to account and distribute. By means of the method prescribed by this section all the creditors may be brought in as parties to the accounting, or if they fail to come in they will be barred. Kerr v. Blodgett, 48 N. Y. 62. § 370- How time computed. (Co. Civ. P. §§ 787, 788.) — A week is a definite period, beginning Sunday and ending Sat- urday. A requirement that a summons be published for six weeks successively once in each week requires that the time should be forty-two days between the first publication and the day when the publication is deemed complete, and that the publication should be made once in each week, although not necessarily upon the same day in the week. Market Bk. v. Pacific Bk., 89 N. Y. 397; 3 Abb. N. S. 396; 12 Abb. N. S. 171. Excluding the first day and including the last in computing time gives the person upon whom service is made the whole of the day upon which such service is made as well as the pre- scribed time. Thus, if the defendant is served with a sum- mons on the first day of the month, he has all that day and twenty days more, bringing it through to the 21st, within which to answer, and he will not be in default until the morn- ing of the 2 2d. If the 21st were Sunday, that day would be excluded, and he would have all of the 22d to answer and would not be in default until the morning of the 23d. Fractions of a day are not to be regarded except when the hour at which a thing is done is material. Marvin v. Marvin, 75 N. Y. 240. PREFERRED AND DEFERRED CAUSES. (Co. Civ. P. §§ 789-795.) § 371. What causes may be preferred in time of trial. (Co. Civ. P. §§ 789, 790, 791, 792.) — The statute provides for priority in the trial of certain causes which we need not specify here in detail. In addition to the causes mentioned in these sections, the rules of practice (Rule 36) provide that where the defendant is imprisoned or his property is held under attach- ment, the action shall be placed on a preferred calendar. The §§372-374-] SERVICE OF PAPERS. 32 1 order of priority in the Court of Appeals is regulated by rule of that court (Ct. of Ap., Rule 20). § 372. How the preference secured. (Co. Civ. P. §§ 793, 794, 795.) — In order to secure a preference on the calendar at circuit, trial term or special term, the party desiring it must serve upon the opposite party with his notice of trial a notice that an application will be made to the court at the opening thereof for leave to move the same as a preferred cause. In an appellate court it is in some instances necessary to obtain an order granting the preference which must be served with the notice of argument (§ 793; 91 N. Y. 239). SERVICE OF PAPERS. (Co. Civ. P. §§796-802.) This article does not apply to the service of a summons or other process; or of a paper to bring a party into contempt; or to a case where the mode of service is specially prescribed by law (§ 802). § 373- Personal service. (Co. Civ. P. § 796.)— Personal service of a notice or other paper in an action may be made either upon a party or his attorney (§ 796); but where a party has appeared, a notice or other paper required to be served on the action must be served upon his attorney (§799). Section 796 contains regulations as to the form, size, printing, writing, etc., of legal papers. By Rule 2, "All papers served or filed must be endorsed or subscribed with the name of the attorney or attorneys and his or their office address or place of business. This rule shall apply to parties appearing in person." A failure to comply with this rule is an irregularity which will warrant the party upon whom the paper is served to return it or to move to set aside the service, but he cannot disregard the paper. Evans v. Backer, 101 N. Y. 289. § 374- Service other than personal. (Co. Civ. P. § 797.) — Where the service is not personal, it may be made either through the post-office upon a party or an attorney by depos- iting the paper properly enclosed in a post-paid wrapper at 21 3 2 2 INTERLOCUTORY PROCEEDINGS. [CH. XIII. the place where the party or the attorney resides (4 How. Pr. 246), directed to the person to be served at the address within the State designated by him for that purpose upon the preced- ing papers in the action, or where he has not made such a designation, at his place of residence, or the place where he keeps an office, according to the best information which can conveniently be obtained concerning the same. Service by mail is complete when the paper has been de- posited in the post-office, enclosed in a post-paid wrapper properly addressed. Miller v. Shall, 67 Barb. 446. The papers must be mailed at the place where the party or the attorney resides (4 How. Pr. 246). Service may be made by mail though both parties reside at the same place, and in the city of New York the papers may be deposited at a branch post- office with the same effect as at the general office (§ 801). Although service by mail may not be good by reason of an irregularity, yet it will be good from the time the papers are actually received by the person to whom they were addressed if they were received in time (13 How. Pr. 57). The effect of service by mail is to give to the party whose time to do an act is thereby limited double the prescribed time, except that service of a notice of trial may be made through the post-office sixteen days before the day of trial, including the day of service. Thus, where the defendant serves his answer by mail the plaintiff has forty days within which to amend his complaint or within which to reply if a reply is necessary (§798). Service other than personal may also be made upon an attor- ney during his absence from his office by leaving the paper with his partner or clerk therein or with a person having charge thereof. Service also may be made upon an attorney if there is no person in charge of his office, and the service is made between six o'clock on the morning and nine o'clock in the evening, either by leaving it in a conspicuous place in his office or by depositing it, enclosed in a sealed wrapper directed to him, in his office letter-box, or if the office is not open so as to admit of his leaving the paper therein and there is no office letter- box, by leaving it at his residence within the State with a per- son of suitable age and discretion. Service by leaving the paper in the attorney's office can be §§375.376-] DISCOVERY AND INSPECTION. 323 made only when the door is found unlocked (36 Super. 294). When the door is locked the paper can be served only by depositing it in the letter-box or by service at the residence. Rogers v. Rockwood, 20 Civ. Pro. 212; Livingstone. N. Y.El. R., 58 Hun 132. Notice of appeal served by putting it through a slot in the office door of the attorney, through which it fell onto the floor of the office and was picked up the next morning by the care- taker and placed on the attorney's desk, was held good service in Livingston v. N. Y. EL Co. (58 Hun 132, rev'g 18 Civ. Pro. 369). Procuring the door to be unlocked and then leaving the paper in a conspicuous place in the attorney's office is not good service (Vail v. Lane, 67 Barb. 281). § 375- Service on non-resident. (Co. Civ. P. § 800.) — This section provides for a case where the party has not appeared by attorney, but in person, and has not designated an address within the State upon the previous papers and his residence cannot with reasonable diligence be ascertained. In such a case service of a paper may be made by serving it on the clerk of the court. DISCOVERY AND INSPECTION. (Co. Civ. P. §§ 803-809.) § 376. When discovery and inspection may be had. (Co. Civ. P. §§ 803, 804.) — The first of these sections confers upon courts of record other than a justice's court in a city, the power to compel an inspection of books and papers, and § 804 provides that the general rules of practice must prescribe the cases in which a discovery or inspection may be compelled, and the proceedings for that purpose. Rule 14 provides that " applications may be made in the manner provided by law to compel the production and discovery or inspection, with copy of books, papers, and documents relating to the merits of any civil action pending in court, or of any defence in such action in the following cases : " 1. By the plaintiff to compel the discovery of books, papers, or documents in the possession or under the control of the defendant which may be necessary to enable the plaintiff to frame his complaint, or to answer any pleading of the defendant. 324 INTERLOCUTORY PROCEEDINGS. [CH. XIII. " 2. The plaintiff maybe compelled to make the like discovery of books, papers, or documents when the same shall be neces- sary to enable the defendant to answer any pleading of the plaintiff. " 3. Either party may be compelled to make discovery, as provided by Art. 4, tit. 6, chap. 8 of the Code of Civil Pro- cedure." That is, as provided by the sections we are about to consider. It will be observed that the rules make express provision for two cases only : that is, for an inspection (1) to enable plaintiff to prepare a complaint, (2) to enable defendant to an- swer any pleading of plaintiff. As to other cases, there is only the general and indefinite language of § 803. But though the rules are silent on the subject there is no doubt of the jurisdic- tion of the court to order an inspection after issue joined (92 N. Y. 644; 1 Civ. Pro. 175). We notice, looking at the subject at large, that there may be marked differences in the interest of the parties in the paper, of which an inspection is sought; thus: (1). It may be a paper which is the foundation of the action, and which may be in the possession of the adverse party, — as, for instance, a written contract upon which the plaintiff desires to plead, but of which he has no copy. In such a case an order of inspection would be almost a matter of course ( Wesson v. Judd, 1 Abb. 254 ; Perrow v. Lindsay, 52 Hun 115 ; Stilwell v. Priest, 85 N. Y. 649), and this case was specially provided for by rule of court before the Code (Graham's Prac. 524). (2). The second class of cases is those in which the applicant has a special interest in the book or paper sought to be in- spected, — as, for instance, books of account kept by an agent or by a partner. Manley v. Bonnel, 11 Abb. N. C. 123; Duff v. Hutchinson, 19 Wkly. Dig. 20 ; Kelly v. Eckford, 5 Paige 548 ; Stebbins v. Harmon, 17 Hun 445. In such cases, a discovery will be granted almost as a matter of right. (3). A third class of cases will include all those in which the book or paper simply contains evidence which the party desires to enable him to prepare his pleading, or to prepare for trial. An inspection will not be granted before issue simply to enable a party to find out whether he has a cause of action upon which he can make a complaint (Brownell v. Bk. of Gloz'ersril/*, 20 Hun 517); nor will it under such circumstances be granted § 377-] THE PRACTICE. 325 to enable a party to find out the names of persons who are to be made parties (Opdyke v. Marble, 18 Abb. Pr. 266); nor will it be granted after issue merely to enable a party to search for evidence which he may or may not require upon the trial. The rule (Rule 15) requires that the party applying shall show to the satisfaction of the court or judge the materiality and neces- sity of the discovery sought, the particular information which he requires, and that there are entries in the book or paper referred to of the matter of which he seeks a discovery or inspection with copy. It is stated, as a general rule, that it must be shown that the inspection is pertinent and material to the claim or defence of the party seeking the remedy, and cannot be had except to support his own case (Sanger v. Seymour, 42 Hun 641; 1 Rumsey Pr. 683), but this rule has been doubted, and the opinion broadly expressed that under the Code a discovery and inspec- tion is not to be refused merely because the document sought is not necessary to establish the applicant's case, but is only sought to ascertain his adversary's evidence (Seligman v. Real Estate Trust Co., 20 Abb. N. C. 210; Powers v. Elmendorf, 4 How. Pr. 60), but this does not mean that a roving inspection of an adversary's books may be had. The facts and circumstances must show that the discovery is necessary; that the evidence or information desired cannot be obtained from any other source; that the books and papers sought do, or probably do, contain the information needed, and that they are in the pos- session of the adverse party. There is no power under these sections to compel a person not a party to produce books or documents for inspection. § 377- The practice— Petition and order. (Co. Civ. P § 805 ) — The application is to be based on a petition. Petition differs from an ordinary affidavit only in form. It is addressed to the court or judge. Thus, " To the Honorable the Supreme Court of the State of New York : The petition of A. B. re- spectfully shows," etc. It closes with a prayer for the relief which the petitioner desires. It is signed by the petitioner, and to it is added an affidavit by the petitioner, in the ordinary form of a verification of complaint. The petition should set out the facts and circumstances which will entitle the petitioner to an inspection under Rule 15. With the petition is prepared 326 INTERLOCUTORY PROCEEDINGS. [CH. XIII. an order directing the party against whom the inspection is sought, to allow the applicant to examine the book or docu- ment, or show cause at a time and place named why the prayer of the petition should not be granted. The order should pro- vide the manner in which the inspection should be allowed, as if the paper sought is a document that the applicant should be permitted to make a copy of, or if the examination is to be of books of account, that the applicant should be permitted at certain hours to inspect them and make copies at the office of the party, or that they be lodged with the clerk of the court for a time named, and that the applicant shall have access to them (Rule 16). The order may be vacated as provided in § 806. A mere denial that the party has the books in his possession when they were last shown in his possession is not a sufficient answer. He must explain what he has done with them. Per- row v. Lindsay, 52 Hun 115 ; s. c. 22 State R. 474; Hepburn v. Archer, 20 Hun 535. GENERAL REGULATIONS RESPECTING BONDS AND UNDERTAKINGS. (Co. Civ. P. §§810-816.) §378. Acknowledgment. (Co. Civ. P. §810.)— A bond or undertaking in an action or special proceeding given as required by the Code must be acknowledged or proved and certified in like manner as a deed to be recorded. The requirements respecting the acknowledgment and proof of deeds and the certification of the officer before whom they are acknowledged or proved are to be found in the Revised Statutes (3 Birdseye, 2549 et seq.). In addition to the officer authorized by the Revised Statutes, notaries public are author- ized to administer oaths and take acknowledgments of deeds by statute (Laws of 1859, c. 360; 2 Birdseye, 2100). The officer taking the acknowledgment or proof must endorse a cer- tificate signed by himself on the conveyance and this certifi- cate must set forth the matters required to be done, known, or proved on such acknowledgment or proof (1 R. S. 759, s. 15; 3 Birdseye, 2556). He must certify that the person executing the instrument appeared personally before him and acknowl- edged that he executed the same, and that the officer knew the person making such acknowledgment was the individual § 379-J BY WHOM BOND EXECUTED. 327 described in and who executed the instrument (1 R. S. 758, s. 9; 3 Birdseye, 2555). If the proof is by a subscribing witness, he must state his place of residence and that he knew the per- son described in and who executed the instrument, and such proof shall not be taken unless the officer is personally acquainted with such subscribing witness or has satisfactory evidence that he is the same person who was a subscribing witness to such instrument (1 R. S. 758, s. 12; 3 Birdseye, 2556). An acknowledgment of an undertaking cannot be taken before the attorney in the action (2 L. Bull. 21). There are special provisions for the acknowledgment of proof when made with- out the State (3 Birdseye, 2549 et seq). No bond or undertaking shall be received or filed until it has been acknowledged or proved as required by this section (Rule 5). There is no substantial difference in the legal obligation of sureties on an undertaking from that arising on a bond. An. undertaking is merely a simplified bond without a seal (14 Daly 68). § 379- By whom bond or undertaking to be executed. (Co. Civ. P. §811.) — Where a bond or undertaking is required to be given with sureties, it is not necessary that the party on whose behalf it is given should join in the execution unless the provision requires him to execute it, and the execution by one surety is sufficient although the word "sureties" is used, unless the provision expressly requires two or more sureties. When the bond or undertaking is executed by any fidelity or surety company authorized by the laws of this State to transact busi- ness, such execution is equivalent to an execution by two sure- ties, provided the bond or undertaking is approved by a judge of the court in which it is given. If such company is excepted to, it must justify through its officers or attorney in the man- ner required by law. This renders the surety company equal to two sureties. Travis v. Travis, 48 Hun 343. A judge is not bound to approve an undertaking guaranteed by such a corporation, although it possesses all the qualifica- tions prescribed by the act, but he should exercise his discre- tion in each particular case (49 Super. 57). In no case shall an attorney or counsellor be surety on any undertaking required by law, or by the general rules of practice, or by any order of a court or judge in any action or special proceeding (Rule 5). 328 INTERLOCUTORY PROCEEDINGS. [CH. XIII. §380. Form of undertaking — Affidavit of sureties — Approval. (Co. Civ. P. §812.) — When the bond or undertak- ing is executed by two or more persons it must be joint and several in form, and except as 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 under- taking over all the debts and liabilities which he owes or has incurred, exclusive of property exempt by law from levy and sale under execution. A bond or undertaking given by a party without a surety, must be accompanied by his affidavit to the same effect. The bond or undertaking must be approved by the court before which the proceeding is taken, or a judge thereof, or the judge before whom the proceeding is taken. The approval must be endorsed upon the bond or undertak- ing. There was added to this section by an amendment in 1892 a provision that a surety on the bond of any trustee, committee, guardian, assignee, receiver, or executor may present a petition to the court or judge that appointed him or that approved or accepted such bond, praying to be relieved from further liabil- ity as such surety, and specifying the proceeding by which the surety may be relieved from further liability on the bond. To avoid the difficulty which might arise in procuring sure- ties when the penalty of the bond or undertaking is large, the statute provides that when the penalty 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 contrib- ute to make up the sum for more than one of them (§ 813). § 381. Prosecution of bond to the people, and other provisions. (Co. Civ. P. §§ 814, 815, 816.) — When the bond or undertaking is given in an action or proceeding to the people of the State for the benefit of a party or other person inter- ested, that party or person may maintain an action upon it in his own name for a breach of the condition of the bond or of ^ 38 I.J CONSOLIDATION OF ACTIONS. 329 the terms of the undertaking upon procuring an order grant- ing him leave so to do, as prescribed in this section. The bond or undertaking continues in force notwithstanding the substi- tution of a new party in place of an original party or any other change of parties (§815); the statute requires that the bond or undertaking should be filed with the clerk of the court, except where special provision is otherwise made. CONSOLIDATION OF ACTIONS. (Co. Civ. P. §§ 817-819.) The object of consolidation is to prevent a multiplicity of actions, and the unnecessary accumulation of costs, and to facilitate the dispatch of business in the courts. The effect of the consolidation is to unite the different actions consolidated into one, which proceeds thereafter as a single action in which a single judgment is entered. The order is discretion- ary. It may be made on application of either party. Briggs v. Gaunt, 4 Duer 664. That the order be granted, it is necessary that the moving papers show that the same question or ques- tions are to be litigated in each action between the same parties, and the defence must be disclosed, in order that the court may determine whether the issues are such as can be tried together. If one action contains issues which are not raised in the other, the consolidation will be refused (io,WkIy. Dig. 125). Equitable actions cannot be consolidated. Bechv. Rug- gles, 6 Abb. N. C. 69. Causes of action brought at different times may be consolidated when it can be done without occasion- ing delay. INTERPLEADER BY ORDER. (Co. Civ. P. §820.) Interpleader is a mode of compelling two or more persons, who severally claim the same thing, debt or duty, from the party liable therefor, to litigate the title thereto between them- selves, the party liable being merely in the position of a stake- holder without interest in the matter himself (Am. Ency. of L. Title Interpleader). Interpleader is of equitable origin, and the remedy by bill in equity still remains, the remedy by motion under the Code being merely concurrent ; that is to say, an 330 INTERLOCUTORY PROCEEDINGS. [CH. XIII alternative remedy. The principles which govern in both cases are alike. Cronin v. Cronin, 9 Civ. Pro. 137; De Lancy\. Murphy, 24 Hun 503. The motion can only be made after an action has been brought (9 How. Pr. 193). It may then be made on appli- cation of the defendant (B. &° O. Ji.R. v. Arthur, 90 N. Y. 234) on his showing that the plaintiff in the action and another per- son make claim against him for the same thing, whether it be a debt or a duty; that he has no beneficial interest in the thing claimed, and that he cannot, without hazard to himself, deter- mine to which of the two he should respond; he must also offer to bring the money or thing into court. Dorn v. Fox, 61 N. Y. 264, 268. The doctrine of interpleader has no application, except in a case where the defendant admits the liability to one party or the other; and where the defendant does not admit the claim in all its entirety, but disputes the obligation in whole or in part, there is no ground of interpleader. B, & O. R.R. v. Arthur, 90 N. Y. 234. Hence the party seeking to interplead must offer to pay the money into court, and the order for an interpleader will be conditional upon the defendant making the deposit (8 How. Pr. 425; 14 Id. 383). The practice on interpleader by motion on behalf of defend- ant is to prepare an affidavit entitled in the action which has been brought, setting out the claim made in that action, and that defendant has not answered, and that a claim for the same demand is made against him by a third person, either in an action already brought or threatened; that these adverse claims are made without collusion of defendant with either of the claimants; that defendant has no interest in the sum or prop- erty claimed, except to pay it to the person rightfully entitled thereto; that he cannot safely determine to which of the claim- ants he should pay it, and that he is ready to deposit the sum or property upon being released from liability- A notice of motion, or order to show cause, requiring the plaintiff and the claimant to show cause why an order should not be made sub- stituting the claimant as defendant and amending the summons and complaint accordingly, is then prepared and served, with the papers upon which the application is made. If the motion is granted, the order will direct that upon the defendant's depositing the money or property, the claimant be substituted as defendant, and that the defendant in the original action be § 381.] NEGLECT TO PROCEED. 33! discharged from further liability; it will also make such provi- sion for the amendment of the summons and complaint as may be proper, and will direct that the substituted defendant appear and answer within a prescribed time after service of the amended summons and complaint, or in case of his failure to do so, that the money or property be delivered to plaintiff. A special statute provides for interpleader in the case of deposits in savings banks, providing that the court, instead of requiring the payment of the money into court, may permit it to remain with the savings bank, subject to the determination of the action (Laws of 1882, ch. 409, § 259). DISMISSAL FOR NEGLECT TO PROCEED. (Co. Civ. P. §§821, 822.) These two sections provide, — (1). For a case where the plaintiff fails to serve the sum- mons on some of defendants who are necessary parties to the determination of the controversy. In such a case the defend- ant who is served has no other remedy for getting rid of the litigation, except a motion to dismiss, since if he attempts to bring the case to trial, no judgment can be rendered, because of the absence of the necessary party (16 Abb. Pr. 124). (2). Section 822 provides for a case where the plaintiff unreasonably neglects to proceed against the defendants, or some of the defendants as to whom judgment may be taken. There is a general rule applicable only in the first district as follows : Whenever an issue of fact, triable by a jury, in an action pending in any of the courts in the first district, has been joined, and the plaintiff therein shall fail to bring the same to trial, according to the course and prac- tice of the court, the defendant, at any time after younger issues shall have been tried in their regular order, may move at Special Term for the dismissal of the complaint, with costs. If it is made to appear to the court that the neglect of the plaintiff to bring the action to trial has not been unreasonable, the court may permit the plaintiff, on such terms as may be just, to bring the action to trial at a future term or circuit (Rule 36). Thus, the defendant has the option to, himself, put the cause on the calendar and force it to trial, or he may wait and move to dismiss, if the plaintiff fails to proceed with 332 INTERLOCUTORY PROCEEDINGS. [CH. XIII. the case. So when a case has been referred to a referee to hear and determine, the complaint may be dismissed, if the plaintiff unreasonably neglects to proceed (16 Hun i). The court has the general power to dismiss a plaintiff's com- plaint for disobedience to an order : as, where the plaintiff is required to furnish a bill of particulars and refuses to do so, his complaint may be dismissed. Gross v. Clark, 87 N. Y. 272 ; and see Hayward v. Manhattan Ry. Co., 52 Hun 383. ORDER FOR TRIAL OF ISSUES BY JURY. (Co. Civ. P. § 823.) A feigned issue was a mode devised by the common law and chancery systems to obtain the verdict of a jury upon questions of fact where all the issues were not properly triable before a jury. Thus the chancellor might direct a feigned issue to try certain particular questions of fact before a jury to enable him to render his decree. This practice was one of the numerous instances in which a desired relief for which no precise mode was marked out by the logical formulas of the law was effected by the help of a fiction. We will suppose that in a pending chancery suit an important inquiry is whether the signature to a certain deed is or is not a forgery. It being made to appear that the evidence on that point is to be conflicting, the chancel- lor awards a feigned issue to obtain the verdict of a jury upon that question alone. A fictitious action is made up for that purpose, the declaration in which states that the party affirm- ing the signature to be a forgery at a certain time and place alleged the said signature to be such forgery, which the other party denied and wagered a certain sum that the signature was not a forgery, and that the said party was indebted for the sum wagered, because in point of fact the signature was a forgery. To this declaration the defendant in the feigned issue answers admitting the wager, but denying the indebted- ness, for the reason that the signature was not a forgery. By this means an issue as to the validity of the signature was framed and tried, and the verdict certified to the chancellor, upon which he proceeded with the trial of the equity suit. All this in detail may be found in Blake's Chancery, p. 323. Feigned issues are abolished by this section, and an order for the trial of an issue of fact by a jury in cases where such § 3 8l FILING PAPERS. — SPECIAL REFERENCES. 333 trial is not a matter of right may be ordered; the question to be tried is to be distinctly stated. The practice is regulated by Rule 31 as follows: In cases where the trial of issues of fact are not provided for by the Code, if either party shall desire a trial by jury, such party shall within ten days after issue joined give notice of a special motion to be made upon the pleadings that the whole issue or any specific question of fact involved therein be tried before a jury. With the notice of motion shall be served a copy of the questions of fact proposed to be submitted to the jury for trial, and in proper form to be incorporated in the order, and the court or judge may settle the issues or may refer it to a referee to set- tle the issues. Such issues must be settled in the form pre- scribed by §§823 and 970. FILING PAPERS. (Co. Civ. P. §§824,825.) The summons and pleadings in an action are not ordinarily filed with the clerk until the entry of judgment, but § 824 directs that they be filed within ten days after service. If not so filed, the adverse party may procure an order ex parte directing that they be filed within a time named or be deemed abandoned. SPECIAL REFERENCES. (Co. Civ. P. §827.) The duties of a master in chancery have been briefly referred to (ante, § 14). There are instances in the course of proceedings both in actions at law and in equity and in special proceedings apart from the trial, when the court or judge may require specific information to be obtained by an examination of a party or witnesses, and where it is convenient that the exam- ination should be taken by some person to be appointed by the judge for that purpose. It was formerly the duty of a master in chancery or of a clerk to perform this office, and by this sec- tion the court may direct a reference to one or more persons with powers the character of which is stated generally in this section. CHAPTER XIV. EVIDENCE. CHAPTER IX., CODE OF CIVIL PROCEDURE. COMPETENCY OF A WITNESS. § 382. Interest does not disqualify. (Co. Civ. P. § 828.) — Upon the competency of witnesses the common law pro- ceeded in distrust of human nature. It believed a witness, if interested, either to be incapable of telling the truth or so liable to yield to his own prejudices as to render his evidence valueless. Philips on Ev., ch. iv., p. *26. See Marsh v. Potter, 30 Barb. 506. It was not until 1857 that in this State a party to an action or proceeding could be examined on his own behalf the same as any other witness (Code of Pro. § 351, as amended). The present Code in this section makes use of the most general language : " Except as otherwise specially prescribed in this title, a person shall not be excluded or excused from being a witness by reason of his or her interest in the event of an action or special 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, prose- cuted, opposed, or defended." In criminal cases the rules of evidence in civil cases are gen- erally applicable (Code of Crim. Pro. §392), and the defendant in criminal cases may testify as a witness in his own behalf, but his neglect or refusal to testify does not create any pre- sumption against him (Code Crim. Pro. §393). § 383. Personal transactions with a deceased person. (Co. Civ. P. §829.) — The general purpose of this section is to prevent the unfair advantage which would arise if one person who had survived could give his version of a disputed personal (334) § 384-] ANALYTICAL STATEMENT OF SECTION. 335 transaction while the other and adverse party to the transac- tion was prevented by death from being heard to contradict or explain the testimony of his adversary. Card v. Card, 39 N. Y. 323; Potts v. Mayer, 86 N. Y. 302; Price v. Price, 33 Hun 69. This purpose the statute attempts to effectuate by rendering the survivor incompetent to testify as a witness in such a case. But while the situation suggested has in it the possibility of injustice to the successor or to the estate of the deceased, the disability in like manner has in it the possibility of injustice to the survivor. Take the case of a claim against the estate of a deceased person in which the result of the controversy must depend upon what took place personally between the claim- ant and the deceased alone. If the claimant may testify, an unjust but uncontrovertible claim may be established ; if he must be silent, the estate of the deceased may escape payment of a just but unproved demand. The turn of the judicial scales is thus made to depend upon the accident of death, — an event beyond the control of either party. Between the possibilities of injustice which may arise from the receipt or the rejection of the evidence of the survivor in such case, the law has been determined in favor of the exclusion of the evidence of the survivor, but a great variety of restrictions and limitations — ■ attempts to mitigate the hardship which the application of the rule might cause — have been attempted from time to time. This section, which treats of this delicate subject, has been frequently varied in its language, and around it have grown up a large number of reported decisions, many of which are now obsolete by reason of amendments of the statute and many of which have been overruled. We proceed to examine the section in detail for the purpose of arriving at as clear an apprehension of its meaning as the present state of the authorities will permit. § 384. Analytical statement of the section. (Co. Civ. P. § 829 ) — 1. Upon (a) the trial of an action or (b) the hearing upon the merits of a special proceeding. 2. A {a) party or (b) person interested in the event, (c) or person from, through, or under whom such party or interested person derives his interest or title by assignment or otherwise. 33 6 EVIDENCE. [CH. XIV. 3. Shall not be examined as a witness (a) in his own behalf or interest or (b) on behalf of the party succeeding to his title or in- terest. 4. Against (a) the executor, administrator, or survivor of a deceased person, or (b) the committee of a lunatic, or (e) a person deriving his title or interest from, through, or under a deceased person or lunatic by assign- ment or otherwise. 5. Concerning (a) a personal transaction or (b) a communication between the witness and the de- ceased person or lunatic. 6. Except where (a) the executor, administrator, survivor, committee, or person so deriving title or interest is examined on his own behalf, or (b) the testimony of the lunatic or deceased person is given in evidence. Concerning the same transaction or communication : 7. A person shall not be deemed interested for the purpose 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 events thereof. The above analysis is found in "Morrell on the Competency of Witnesses," where most of the cases under this section, down to 1886, are collated. 1. It will be observed, in the first place, that the persons who are, by this section, rendered incompetent as witnesses, are in- competent only upon the trial of an action or the hearing upon the merits of a special proceeding. This section, therefore, has no application to interlocutory proceedings (see Mr. Throop's note). The amendment to the first clause overrules the case of Gregory v. Gregory (33 Super. Ct. 1). Hence, a person incom- petent under this section, to tell his story upon the witness- stand, would be entirely competent to furnish evidence by affi- davit for use in every other stage of the action other than the trial or hearing. § 3-84-J ANALYTICAL STATEMENT OF SECTION. 337 2. The person excluded as a witness is a party or person in interest, or the predecessor in interest. In an action the party is, of course, shown by the record, but in a special proceeding it is not always so plain who the party is. Thus, in proceedings to probate a will presented by an executor : the proceeding is entitled " In the macter of the propounding of a certain paper writing as the last will and testament of John Jones, deceased." The person named as executor in the will, although he is the proponent of the will, is not a party and is not disqualified from testifying as to transactions with the testator on the ground of interest. Children's Aid Society v. Loveridge, 70 N. Y. 392; Loder v. Whelpley, m N. Y. 239. But devisees or legatees under the will are not competent to give such evidence (m N. Y. 239), because they are parties interested in the event. The test of interest of a witness not a party, is that he will either gain or lose by the direct legal operation of the judg- ment, or that the record will be legal evidence for or against him in some other action. It must be a present, certain, and vested interest and not one that is uncertain, remote, or con- tingent. Connelly v. O'Connor, 117 N. Y. 91. In the case cited, the plaintiff's action was brought against the administratrix of the father of an illegitimate child, to recover on a contract for its support. The mother of the child was called as a witness for plaintiff, to furnish evidence of the contract. It was held that she was not disqualified by interest, for the reason that a judgment against the administratrix would not be evidence for or against the witness. The nature of the interest, which is within the purview of the statute, will appear from fur- ther illustrations. Thus, where a conveyance of land had been obtained by fraud practiced upon the grantor, who after- ward died, leaving five persons, his heirs at law, each en- titled to one undivided fifth of his realty: in an action brought by one of the heirs to set aside the conveyance and to recover his one-fifth of the property, it was held that another of the heirs at law was a competent witness to transactions with the deceased. The judgment in the suit pending would not affect the one-fifth interest of such witness (Smith v.Meaghan, 28 Hun 423), but the widow of the deceased, if she had joined in the deed, would have been incompetent, because, as to the one-fifth concerning which the action was brought, her dower interest would be revived by the judgment (San/ord v. Ellithorp, 95 N. 22 338 EVIDENCE. [CH. XIV. Y. 48). In Eisenlordv. Clum (126 N. Y. 552), — an action of eject- ment to recover land of decedent, claimed by plaintiff as a son and by the defendants as collateral heirs at law, — it was held that the plaintiff's mother was competent to prove her mar- riage to the deceased, inasmuch as she was not in a legal sense interested in the result of the action of ejectment, and in this case it was considered that the phrase " interested in the event " was not intended to enlarge the class to be excluded, beyond that which the common law excluded for interest. So the interest which excludes must be a present, fixed interest, and not a mere possibility that some time in the future one may be interested in the event. Matter of Hartley, 44 Hun 559. It is apparent that a mere interest, arising from relationship, or friendship, or circumstances which might create a pre- sumption that the witness would be favorable toward a party, does not render the witness incompetent. Thus, an agent may testify to transactions with a deceased person, in favor of his principal. Nearpass v. Gilman, 16 Hun 121, affi'd 104 N. Y. 506. The next of kin, or heirs who will be benefited if a will is not established, are incompetent witnesses for a contestant {Matter of Lasak, 31 State R. 203); but the husbands of legatees under a will are not disqualified by the mere fact that they may become tenants by the courtesy through their wives. Matter of Clark, 40 Hun 233. An important exception, however, in testamentary matters, is found in § 2544, by which the subscribing witnesses to a will are rendered competent to testify in a probate court to its exe- cution, however their interest may be affected. Matter of Eysaman, 113 N. Y. 62. A legatee, however, forfeits the legacy by becoming a subscribing witness (2 R. S. 65, § 50). A variety of instances arise in actions against parties to promissory notes, where the inquiry as to whether other parties upon the same note are competent witnesses. Thus, in an action upon a promissory note, purporting to be made by two persons jointly in an action by the holder of the note against the representatives of one of the deceased makers, it was held that the other maker was incompetent to testify for the plain- tiff to transactions with the deceased. It was his interest to render his co-defendant liable as well as himself. Wilcox v. Corwin, 117 N. Y. 500. So in an action upon a firm note against -§384-] ANALYTICAL STATEMENT OF SECTION. 339 the survivors, it was held that one of the survivors was incom- petent to testify to conversations with deceased, to show him to be a partner. Hunter v. Herrick, 26 Hun 272, affi'd 92 N. Y. 626. But the maker of a note is not interested in the result of an action against the estate of an endorser, so as to disqualify him. Converse v. Cook, 31 Hun 417. In an action upon a guaranty against the estate of the deceased guarantor, the principal debtor is not so interested as to be disqualified from testifying on behalf of the plaintiff as to convarsations with deceased. Beakes v. Da Cunha, 126 N. Y. 293. The section also excludes as a witness " a person from, through, or under whom such a party or interested person de- rives his interest or title, by assignment or otherwise " This clause requires comparatively little comment. A predecessor in interest, through whom a party, or interested person claims, is disqualified to the same extent as the party himself. This includes a grantor of land {Bockes v. Lansing, 13 Hun 38), a vendor of chattels (6 Hun 650), the endorser of a note {Richard- son v. Warner, 13 Hun 13), the assignor of a mortgage (Smith v. Cross, 90 N. Y. 549). An interesting case is Mullins v. CJiickering (no N. Y. 513). In an action brought by a wife, as devisee of her husband of certain lands, to restrain the foreclosure of a mortgage made by the husband to the defendant's assignor, the mortgagee, it was held that the wife was competent to testify to the trans- action between her husband and the mortgagee; the defendant did not derive title or interest in the mortgage through or under the deceased mortgagor. Holcomb v. Campbell, 118 N. Y. 46. So in an action by a receiver of a bank — successor to a deceased receiver — brought to foreclose on certain securities deposited with the bank by one of the defendants, who was the husband of another defendant who claimed to be owner of the securities, and that they had been wrongfully diverted, with the knowledge of the bank, it was held that the husband was not incompetent to testify to an interview with the former receiver. Olcottv. Kohlsaat, 27 State R. 900. 3. Not examined as a witness on his own behalf or interest. — Observe that it is only when a party or person interested in the event, or their predecessor in interest, is offered as a witness on his own behalf or interest, against the deceased, that he is dis- qualified. It is always competent to call such a party, or per- 340 EVIDENCE. [CH. XIV. son, to testify against his interest (19 Hun 35; 81 N. Y. 151). Thus, to put a plain case, a legatee under a will offered for pro- bate, and who would have no interest in the estate of the deceased if the will was rejected, may be called to testify as a witness for contestants, to defeat the will. So in an action against the endorser of a note, the maker, if called as a witness against the endorser, is not examined on his own behalf or interest, and is not disqualified. Converse v. Cook, 31 Hun 417. So a widow, devisee of a life estate in the whole of her husband's farm, is competent to testify to an agreement which, if established, would cut down her estate to a dower interest. Brown v. Brown, 29 Hun 498. Other illustrations are Carpenter v. Soule (88 N. Y. 251) ; Moore v. Oviatt (35 Hun 216). Or, on behalf of the party succeeding to his title or interest. 4. 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. The witness who undertakes to testify to a personal trans- action with a deceased person is disqualified when he is inter- ested in the event and is called as a witness on his own behalf and as a witness against the representative of the deceased persons or a person claiming under such deceased person. Thus, a party cannot testify to a conversation between him- self and a deceased grantor under whose conveyance the op- posite party claims, and that though he be not the immediate grantee of the deceased. Pope v. Allen, 90 N. Y. 298. An illustration of what is here meant is Benedict v. Driggs (34 Hun 94), which was an action on a note made by defendant, payable to his wife and alleged to have been transferred to plaintiff before maturity, for value. The wife being dead, the defendant was asked for what consideration the note was given, and offered to prove by him that the note was given to his wife by him without consideration. The evidence called for a transaction with a deceased person, through whom the plaintiff claimed title, and the witness was clearly incompetent under this section. 5. Concerning (a) A personal transaction; or (6) Communication between the witness and the deceased person or lunatic. § 384.] ANALYTICAL STATEMENT OF SECTION. 341 The policy of the statute excludes the evidence of an inter- ested witness, concerning 1st. Any transaction between himself and the deceased per- son, or in which the witness in any manner participated; 2d. All communications between the person deceased and the witness^ including communications in the presence or hearing of the witness, if he in any way was a party thereto, or com- munications to either one of two or more persons, if all were interested. Holcombv. Holcomb, 95 N.Y. 316. Thus in the case cited, which was an action to set aside an assignment of a bond and mortgage, as having been made by plaintiff's intestate, when of unsound mind and under undue influence, a son of the deceased, interested in the event, was permitted to testify to having seen his father in spasms, and was permitted to testify to his enfeebled condition and to his conduct and language, when not addressed to the witness, and this was held error. The court says: "Transactions and com- munications embrace every variety of affairs which can form the subject of negotiation, interviews, or actions between two persons, and include every method by which one person can derive impressions or information from the conduct, condition, or language of another " (95 N. Y. 325). This view is sustained by the later cases of Matter of Eysa- men (113 N. Y. 62), Heynev. Doerfler (124 N. Y. 505), and Matter of Dunham (121 N. Y. 575), and seriously modifies earlier cases in which it was held that an interested witness, who was present at a transaction or conversation between a deceased person and a third person, if he did not participate therein, was competent. Price v. Price, 33 Hun 69. When the inter- ested witness participates to any extent in the transaction or conversation with the deceased, then there is no question as to the disqualification, and the later decisions seem to have estab- lished the doctrine that such interested witness is disqualified, even if he took no part whatever in the transaction or conver- sation, but merely testifies to what he saw and heard. But see Simmons v. Havens, 101 N. Y. 427 ; Cary v. White, 59 N. Y. 336, and Matter of Brown, 38 State R. 130. Compare with cases above cited. Of course, this does not include written communications between the witness and deceased, but it would preclude the witness from testifying as to the writing, sending, or receipt of 34 2 EVIDEISXE. [CH. XIV. such communications. Matter of Budlong, 54 Hun 131; McKenna v. Bolger, 37 Hun 526. But an interested witness may testify to his opinion as to the handwriting of the deceased. Simmons v. Havens, 101 N. Y. 427 ; De Verryv. Schuyler, 28 State R. 233. So such a witness may be permitted to testify as to whether the signature of the deceased was upon a bond at a certain time. Wadsworth v. Heermans, 85 N. Y. 639. The evidence called for the condition of the bond, and not for the evidence of the wit- ness as to any personal transaction of deceased. An interested witness is quite as much disqualified from tes- tifying to a negative, — that is, to what the deceased did not do, — as he is to an affirmative transaction, but this will not pre- clude the interested witness from testifying to extrinsic facts which tend to contradict a certain transaction claimed to have taken place between himself and the deceased, — as, for instance, he may prove that he was absent from the country where the transaction is said to have taken place, at the time of the occurrence. Pinney v. Orth, 88 N. Y. 447 ; McKenna v. Bolger, 37 Hun 526. But a witness cannot make proof, for instance, that he received a note from the deceased by proving that he received it from no one else. Grey v. Grey, 47 N. Y. 554. So in Koehler v.Adler (91 N. Y. 657), the inquiry was whether a check given by the plaintiff to defendant, intestate, was a personal transac- tion between them, or a transaction in which plaintiff acted for a certain company. The plaintiff was asked whether the check had anything to do with the affairs of the company. This was excluded as being an attempt, indirectly, to prove that the check was a personal transaction. We may further inquire how far inferential evidence of per- sonal transactions with the deceased may be given by an in- terested witness. Lewis v. Merritt (98 N. Y. 206) was an action brought by the executor of Mrs. Lewis, deceased, to recover damages for conversion of certain promissory notes. The plaintiff testified that the notes were in possession of tes- tator, shortly before her death, in a box in her room ; that he saw them there on the morning of the day she died ; that on the following morning he found that they had been ab- stracted, and he testified to the presence of defendant in the room and opportunity on his part to abstract the notes. There was, as you observe, no evidence of any personal trans- § 384-] ANALYTICAL STATEMENT OF SECTION. 343 action with deceased. The defendant was called as a witness on his own behalf and was asked whether he took the notes from the trunk; this was objected to and excluded, and he was asked whether he had the notes in his possession at a time two days before the death of testatrix; this was also excluded. The defendant sought to maintain his defence on the theory of a gift from testatrix. Upon appeal, the evidence thus excluded was held competent upon two grounds: first, because it was justified by the affirmative evidence given by the plaintiff, and, secondly, because it was competent for defendant to give evidence of any extraneous facts and circumstances which tended to show the falsity of the evidence given by plaintiff, although such facts also incidentally tended to establish the inference that a personal transaction or communication between the witness and testatrix had taken place. Just how much of direct individual action there must be to constitute a " personal transaction " is an inquiry of some difficulty. Thus, if the interested witness should offer to tes- tify that he handed a sum of money to the deceased, that would manifestly be a personal transaction. May he testify . that he handed the money to A, with instruction to deliver to the deceased ? Apparently such evidence would not be within the statute, and the evidence of the agent who acted in de- livering the money would be competent. Nearpass v. Gilman, 104 N. Y. 506 ; Pratt v. Elkins, 80 N. Y. 198. But suppose that the interested witness proposed to testify that he placed the money in an envelope, addressed it to deceased and handed it to A sealed, and A then testifies to the delivery of the envelope, asserting his ignorance of what it contained. Now, A's evidence is clearly competent, and if the interested witness may testify to placing the money in the envelope, the entire transaction is proved. Was that act a personal transaction with deceased ? Was A anything more than a mere, uncon- scious instrument ; a mere material substance, through which the witness acted ? In Gregory v. Fichtier (21 Civ. Pro. 1) the plaintiff claimed certain jewelry alleged to have been delivered to defendant's decedent. She testified that she placed the jewelry — enumerating it — in a box, and gave the box to a party who'testified that she, without any knowledge of the contents of the box, delivered it as she had received it to decedent. It was held (Pryor, J.) that the evidence of the plaintiff was incom- 344 EVIDENCE. [CH. XIV. petent, because it concerned a personal transaction with the deceased. 6. Exception — when such testimony becomes competent. It is only when the executor, administrator, survivor, or com- mittee, etc., is examined on his own behalf, that the interested witness becomes competent. A party cannot enable himself to testify in a case otherwise prohibited by examining his adver- sary, and then claiming that he is thus brought within the ex- ception. Corning v. Walker, ioo N. Y. 547 ; Miller v. Adkins, 9 Hun 9. The evidence which renders the exception applicable must be respecting the same transaction. An interesting case is Nay v. Curley (113 N. Y. 575.) This section does not abrogate the principle that where a party calls a witness and examines him as to a particular part of a communication or transaction, the other party may call out the whole of the communication or transaction bearing upon or tending to explain or qualify the particular part to which the examination of the other party was directed. See also Lewis v. Merritt, 98 N. Y. 206. If a party calls the adverse party and examines him as to a personal communication or transaction with the deceased, in reference to which he would be precluded from testifying in his own behalf, the witness is entitled to state the whole trans- action or conversation and thereby explain or qualify the testi- mony called out by the other party. Merritt v. Ca7npbell, 79 N. Y. 625. § 385. Testimony of party dying after trial. (Co. Civ. P § 830.) — The rules of evidence before the Code permitted the testimony of a deceased witness taken upon a former trial, to be read in evidence upon a re-trial. Odell v. Buckart, 6 State R. 45. This section renders the evidence so taken, of persons who have become incompetent under § 829, since the previous trial competent to be read in evidence. A strict reading of the section would require the death of the party or interested wit- ness, in order to permit the reading of the previous testimony, but in Morehouse v. Morehouse (41 Hun 146), where the plaintiff lost his mental powers, after the first trial, the section was held applicable. Nor is the section to be limited to the trial imme- diately preceding; it applies to any former trial. Koehler v. Scheider, 31 State R. 549. § 386.] HUSBAND AND WIFE. 345 § 386. Husband and wife. (Co. Civ. P. § 831.) — At common law a husband or wife could not be a witness for or against each other The reason given for the rule was the unreliability of the evidence of the witness arising from mutual interest and partiality, and a general policy of preserving the harmony of the domestic relations. Marsh v. Potter, 30 Barb. 506. The modern tendency here, as elsewhere, is to refer such considera- tions to the weight and force of the evidence, rather than to its competency. A husband and wife are, under the Code, compe- tent to testify either for or against each other in all civil actions {Southwick v. Southwick, 49 N. Y. 510) except in the cases men- tioned, which are: (1). Adultery. — Neither the husband nor wife is competent to testify against the other upon the trial of an action, or the hear- ing upon the merits of a special proceeding, founded upon an allegation of adultery, except to prove the marriage or disprove the allegation of adultery. The last words were added in 1887. The disproof of the adultery is not limited to a mere denial. A husband or wife are competent to give all testimony that may have a material effect in convincing or persuading the mind of a judge or jury, either directly or by necessary inference, that the allegation' of adultery is untrue. Jrsch v. Irsch, 12 Civ. Pro. 181; Stevens v. Stevens, 54 Hun 490; de Afeliv. de Meli, 120 N. Y. 485. (2). Confidential communications. — "The husband or wife shall not be compelled, or, without the consent of the other, if living, allowed to disclose a confidential communication made by one to the other during marriage." The object of this rule is that the most entire confidence may exist between husband and wife, and that there may be no apprehension that such confidence can at any time, or in any event, be violated, so far at least as regards any testimony or disclosure in a court of justice. Chamberlain v. The -People, 23 N. Y. 89. The question as to what constitutes a confidential communi- cation, or whether all communications between husband and wife are confidential, was touched upon in Parkhurstv. Berdeh (no N. Y. 393), where Earl, J., expresses the opinion that all communications between husband and wife, when alone, are not confidential, and limits the communications between 34^ , EVIDENCE. [CH. XIV. husband and wife which are privileged by the statute to such " as are expressly made confidential, or such as are of a con- fidential nature, or induced by the marital relation." In that case it was held that it was competent to examine the wife of the defendant as to statements made by him to her, in refer- ence to certain business liabilities sought to be fastened upon him. (3). Criminal conversation. — In an action for criminal conver- sation, the plaintiff's wife is not a competent witness for plain- tiff, but she is a competent witness for defendant, except as to confidential communications. § 387. Conviction for crime. (Co. Civ. P. § 832.)— The exclusion of felons as witnesses at common law was justified by the argument that their testimony was wholly unreliable and unsafe, and that their exclusion as witnesses was a proper punishment for their crimes (Throop's Notes). A conviction and sentence for a misdemeanor never dis- qualified, but only for a felony. Accordingly a conviction for petit larceny, that not being a felony, did not disqualify. Shay v. People, 22 N. Y. 317. But conviction for a misdemeanor was always, both at common law and under the Revised Statutes, and is now, admissible for the purpose of affecting the credi- bility of the witness. 29 Hun 122, 382 ; 33 Hun 296 ; Morrell on Comp. of Wit., p. 81. Nothing short of conviction can be proved for the purpose of affecting the witness' testimony. He cannot be asked whether he has been arrested upon a criminal charge {People v. Crapo, 76 N. Y. 288), or how many times he has been arrested {People v. Brown, 72 N. Y. 571), or whether he has been indicted {Ryan v. People, 79 N. Y. 593). The general rule is, that a party who, upon cross-examina- tion, asks questions relating to matters not directly within the issue for the purpose of affecting the credibility of the witness, cannot contradict what the witness says in reply, by other witnesses. The necessity for this rule arises from the con- fusion which would arise from permitting parties to bring into the trial of one issue, matters which are wholly collateral. But to this salutary rule the law permits an exception in the case of conviction for crime. If the witness on cross-examination denies that he has been convicted of crime, although that is a §§ 388, 389-] PROFESSIONAL COMMUNICATIONS. 347 matter wholly collateral to the issue being tried, it is permis- sible to prove the conviction under the provisions of this section. § 388. Professional communications — Clergymen. (Co. Civ. P § 833.) — The instances in which the provision with re- gard to clergymen has been invoked, are very rare Indeed, only one reported case is found, that oi People v. Gates (13 Wend. 312); and in that case the clergyman testified that the con- fession was not made to him as a clergyman, and he was held competent to testify. § 389. Professional communications — Physician. (Co. Civ. P. § 834.) — The object of the statute is plainly that per- sons may feel sure that whatever they disclose to a physician in his professional capacity, in regard to their bodily condition, whether it be by word or by allowing a physical examination, shall be held sacred, whenever the relation of physician and patient exists. Grattan v. Met. Life Ins. Co., 80 N. Y. 281. "Inaprofessicnal capacity." These words have reference to the relation between the parties. Whether employed or not, if the physician acts in a professional capacity he is within the statute (People v. Murphy, 101 N. Y. 126), and when the relation is shown to exist, all the information which the physician ac- quires, whether by observation or word of mouth, is alike privileged (Brigham v. Gott, 20 State R. 420 ; Renihan v. Dennin, 103 N. Y. 573), to the extent to which it bears upon the profes- sional relation. Information wholly unnecessary to the pro- fessional relation is not privileged (Edington v. sEtna Life Ins. Co., 77 N. Y. 564). But in Matter of Darragh (52 Hun 591) it was held that in order to preclude a physician from testifying it was only neces- sary to show that he had obtained the information during the course of his professional visits, and that it was not necessary to establish that the knowledge which he had acquired in re- spect to his patient during such professional attendance was necessary to enable him to prescribe; and in Feeney v. Z. 7". R.R. (116 N. Y. 375), — an accident case, — where the plaintiff called upon a physician and consulted him the day after the accident, and he was asked upon the trial by defendant's counsel whether he conversed with her about her injuries, and whether he made 34 8 EVIDENCE. [CH. XIV. an examination, it was held that these questions were prop- erly excluded as calling for a privileged communication. In Patten v. United Life & Ace. Assoc. (133 N. Y. 450) it was held that there was nothing in this section to prohibit a doctor from testifying that he was called upon professionally by a party, or from giving the number of interviews and their date and hour. A recent review of the questions presented b)' this section and of the authorities, by Mr. Austin Abbott, will be found in the Columbia Law Times (vol. 5, p. 181). § 390. Attorney and counsellor. (Co. Civ. P. § 835.) — Where an attorney is professionally employed, any communi- cation made to him by his client, with reference to the object or the subject of such employment, is under the seal of profes- sional confidence, and is entitled to protection as a privileged communication. Morrell on Comp. of Wit., p. m ; Root v. Wright, 84 N. Y. 72. It is not essential that a fee should be paid. Bacon v. Frisbie, 80 N. Y. 394. When both parties are present the communication is not privileged. Smith v. Crego, 54 Hun 22 ; Hebbard v. Haughian, 70 N. Y. 54; Hurlburt v. Hurlburt, 128 N. Y. 420 ; s. c. 21 Civ. Pro. 277. Thus, an attorney who draws a deed may testify as to directions received from the parties and as to the transaction between them. Hebbard v. Haughian, supra. Communications, either by word or act of a client, to an attorney employed to draw his will, upon that subject, or made to others in the attorney's presence, at that time, cannot lawfully be disclosed by the attorney, on the probate of the will. The only excep- tion is when the attorney is a subscribing witness. Matter of O'Neil, 26 State R. 242. In the latter case the decedent must be presumed to have intended that the attorney should testify to what took place at the time of the execution of the will, and having waived the privilege, for that purpose the waiver extends to all communications and transactions had between the testator and his attorney, having reference to the will and its prepara- tion. In re Lamb, 21 Civ. Pro. 324. And see amendment to § 836 (Laws of 1892, c. 514). In the Matter of Chap??ian (27 Hun 573), it was held that upon allegations of fraud, forgery, or mistake, the instructions received by an attorney for making a will are not privileged within any just or proper construction of the rule of law. § 39 ^J WAIVER OF PRIVILEGE. 349 § 391. Waiver of privilege. (Co. Civ. P. § 836.)— This sec- tion provides that the privilege may be expressly waived by the person confessing, the patient or the client. " But a phy- sician or surgeon 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 patient professionally, except confidential communications and such tacts 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 is in question, by the executor or executors named in said will, or the surviving husband, widow, or an heir at law, or any of the next of kin of such deceased, or any other party in interest. But nothing herein contained shall be construed to disqualify an attorney on 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 ex- ecution in case such attorney is one of the subscribing wit- nesses thereto." The words quoted were added by amend- ments in 1891 and 1892. Previous to the first amendment the death of the patient put an end to the possibility of the physician's testifying in any case, because there was no one who could waive the disability. Wesiover \. ALtna Ins. Co., 99 N. Y. 56; Loderv. Whelpley, in N. Y. 246. As to criminal case, see Pierson v. People, 79 N. Y. 424. By the change made in the statute in 1891, the personal representatives of the deceased might waive the privilege in the instances named. In 1892 the class of persons who could waive the privilege was extended, and the clause relating to attorneys who are subscribing witnesses to a will was added. Although the statute prescribes an express waiver, the Court of Appeals has decided that it may be inferred from conduct, as in the case of an attorney who is a subscribing witness. Matter of Coleman, in N. Y. 220. So if a person on his own behalf testifies to a confidential interview with his physician, his adversary may call the physician to contradict the story of the patient; and in Treanor v. Manhattan R. Co. (41 State R. 614), where the plaintiff testified to personal injuries, and described the physical effects and consequences, it was held by the Com- 35° EVIDENCE. [CH. XIV. mon Pleas that the physician who attended her might be ex- amined as to her condition upon the theory that by having de- tailed her symptoms she had herself waived the protection which the physician's privilege was intended to afford. This case is open to question. COMPELLING ATTENDANCE OF WITNESS. § 392. Mode of serving a subpcena issued out of a court. (Co. Civ. P. § 852.) — A valid service of a subpcena requires that (1) the original subpcena must be exhibited to the witness; (2), that a copy of the subpcena or a ticket containing the substance must be delivered to him; (3), and that the wit- ness fees must be paid or tendered (§ 852). The form of the subpcena is not prescribed. Although it should recite that it is tested with the seal of the court and the signature of the judge, it is not customary in fact to attach the seal of a court of record or to obtain the judge's signature. The subpcena is issued by the attorney, and when subscribed and endorsed by the attorney, the absence of the seal and judicial signature do not render it void or voidable (§ 24). The witness is entitled as fees to fifty cents for each day's attendance, and if he resides more than three miles from the place of attendance, to eight cents a mile for each mile going to the place of attendance (§3318). The fees must be paid when the subpcena is served. When the person to be produced as a witness is a prisoner detained in a jail or prison within the State, his attendance may be procured by means of the writ of habeas corpus to testify (§ 2008). § 393- Penalty for disobedience. (Co. Civ. P. § 853.)— A failure to obey the subpcena subjects a person to punishment for a contempt and also renders him liable for the damages sustained by the party aggrieved in consequence of the failure, and fifty dollars in addition thereto, to be recovered in one action or in separate actions. Neither sickness in the family, nor poverty, nor the opinion of the witness that his evidence is immaterial, is any excuse for failure to obey the subpcena, but it is a good excuse if the fees have not been paid (4 Den. 75) or that the subpcena was § 394-J SUBPCENA DUCES TECUM. 35 I not served in time to enable the witness to reach the court by the ordinary routs (13 Wend. 49). The witness who disobeys the subpoena may be brought before the court by an attachment, which is an order directed to the sheriff to apprehend the witness and bring him before the court to answer for the contempt in disobeying the sub- poena (§ 2269). If the witness subpoenaed or produced before the court refuses to be examined or to answer a legal or pertinent ques- tion, or to produce a book or document which he was directed to bring, or if he refuses to subscribe his deposition in a case where that is proper, the judge may commit the offender to jail, there to remain until he submits to do the act which he was so required to do or is discharged according to law (§ 856). The commitment in such a case must specify particularly the cause of commitment, and if the witness is committed for refusing to answer a question the question must be inserted in the warrant (§857). Sections 854 and 855 provide for the subpoenaing of wit- nesses in judicial proceedings other than actions and before other tribunals and officers authorized to take proofs and for the enforcement of obedience to such subpoenas. § 394. Subpoena duces tecum and order to produce book of account. (Co. Civ. P. § 867.) — A subpoena duces tecum is the proper form of subpoena to compel a witness to bring with him and produce on the trial a book or paper in his pos- session. It differs from the ordinary subpoena only in that it contains a direction to the witness to bring with him the book or document, which should be intelligibly described. The statute provides that a subpoena requiring a witness to produce a book of account must be served at least five days before the day when he is required to attend. If the subpoena to produce such book cannot be served so long before the return day, it will be nec- essary to procure an order directing the witness to produce it. The statute also provides that after service of such subpoena or order the witness may apply for an order relieving him from the necessity of producing the book or document, upon such terms as justice requires, touching the inspection of the book or any portion thereof, or taking a copy thereof or extracts therefrom or otherwise (§867). 35 2 EVIDENCE. [CH. XIV. The object of this provision is to relieve a witness from the hardship which might arise from being compelled to produce numerous or voluminous books or documents when the portion actually required can be ascertained before the trial. The pro- duction of the books of a corporation may be compelled in like manner as those in the possession of a natural person. The subpoena in such case must be served upon the president or other head of the corporation, or to the officer thereof in whose custody the book or paper is (§ 868). For reasons of public convenience, a public record, certified copies of which may be used in evidence, cannot be removed by subpcena duces tecum from the office in which it is kept, except temporarily by the clerk having it in charge to a sitting of the court of which he is clerk, or by the officer having it in custody to a term or sit- ting of a court or a trial before a referee held in the city or town where his office is situated. In other cases such records can be removed only by an order of court (§ 866). § 395- Notice to produce papers on the trial. — In this connection it is proper to refer to the unwritten requirement that a party who desires to avail himself upon the trial of a document or paper in the possession of his adversary as evi- dence must, a reasonable time before the trial, cause notice to be given to the party in whose possession the document is, or his attorney, to produce it; and if he neglects to do so, parol evidence of its contents may be given (Graham's Prac, p. 528). This, you observe, is a proper procedure only when the document is in the possession of a party or his at- torney, and the result of giving the notice is not necessarilv to compel the production of the paper, but to lay the foundation for secondary evidence of its contents if it is not produced. The physical production of a document, whether in possession of a party or of a third person, can be compelled only by sub- poena or order. To the necessity for notice to produce in order to permit secondary evidence of the contents of a writing, there is an exception in the case of a writing directly involved in the cause of action or defence so that the nature of the action or the contents of the pleading in effect gives notice that it will be required (17 Johns. 293; 2 Abb. Dec. 423). A notice to produce should be sufficient to apprise the party on whom it is served of the papers required, but where a num- § 39 6 -] EXAMINATION OF PARTY BEFORE TRIAL. 353 ber of letters or documents are required, and the precise date or description of each cannot be given, it will be enough to call for all letters or papers of the kind required in the party's possession (11 Wend. 65 ; 2 Daly 92). DEPOSITION TAKEN AND TO BE USED IN THE STATE. § 396. Examination of a party or a witness before trial. (Co. Civ. P. §§ 870, 871, 872.) — This Article provides for the ex- amination, (1) of a party to an action, and (2) of a person not a party. It is quite manifest that ordinarily a person to be examined as a witness, whether a party or not, should be produced and examined on the trial. The cases, therefore, where a party or a witness may be examined before trial are exceptional, and the right to such examination must be brought within the re- quirement of the statute. Sections 870, 871, and 872 supply the place of the former remedies in equity, (1) by bill of discovery, (2) bill to perpetuate testimony, and (3) the proceeding known to the common law as the examination of a witness de bene esse. The mode of taking the examination of a party or witness in all of these former proceedings is now provided for by § 872. This commingling of different remedies in one section is perhaps somewhat confusing. The section will be best under- stood by briefly considering the character of the former reme- dies. A bill of discovery was a bill in equity filed for the sole purpose of obtaining evidence to be used in another judicial proceeding ordinarily in aid of an action at law. This was effected by compelling the defendant to answer the allegations and interrogatories of the bill, and to produce documents in his possession material to the case. The answer could be used on the trial at law as an admission by defendant. Some of the limitations which equity imposed upon the right of discovery are important. One of these was that the plaintiff was con- fined in his investigation to matters material to his own cause of action, and was not at liberty to pry into the defendant's case or to find out the evidence which he had to support it. It was, moreover, essential that it should appear that the dis- covery was material and necessary to the plaintiff, — that is, 23 354 EVIDENCE. [CH. XIV.. that the plaintiff had no other means of making the desired proof or no other available or efficient means. Discovery could be had only in aid of civil actions. It could not be had in aid of a criminal prosecution nor used as a means of compelling a party to criminate himself or to violate the privilege thrown around privileged witnesses, but a defendant might be com- pelled to disclose frauds and fraudulent practices where such evidence was essential to the plaintiff's case, though the evi- dence might subject the defendant to criminal prosecution. Such were the general features of a bill of discovery, which remedy is now abolished by statute, while the same practical and beneficial results are effected now through the proceeding under this section for the examination of a party before trial. A bill to perpetuate testimony was available for the purpose of taking and preserving the evidence of persons, who were not parties, under certain peculiar circumstances, as where from age or sickness or anticipated absence from the county, the testimony of such witnesses in an anticipated suit could not probably be had at the trial. A party might maintain such a suit in equity to perpetuate testimony upon showing that he had an interest in property real or persona), as to which an action was pending or threatened, and that the evidence of a material witness was likely to be lost b)r his death or departure unless taken at once for use upon the trial. The requisites of the bill are stated in Daniel's Ch., p. 1575. An examination de bene esse was the method of securing in a pending action at law the evidence of a witness who was within the jurisdiction, but was about to depart, or who was sick or otherwise disabled, so that he could not be present at the trial. The practice grew up without statutory provision, but was regulated by the Revised Statutes (2 R. S. 391, § 123, now re- pealed). To obtain an order for the examination of such a wit- ness, it was necessary to show that the witness was about to depart from the State, or that he was so sick or infirm as to afford reasonable ground for apprehension that he would not be able to attend the trial. § 397. Examination of party before trial. (Co. Civ. P. §872.) — We now proceed to an examination of the sections of the Code. And first, we will examine the different purposes for which the examination of a party before trial may be allowed. § 397- J EXAMINATION BEFORE TRIAL. 355 To frame a complaint. — The case of Glenney v. Stedwell (64 N. Y. 120) settled the rule that in a proper case the plaintiff might compel the examination of defendant for the purpose of fram- ing a complaint. That case was decided under Code of Pro- cedure, but the same rule exists under the present Code. Hutchinson v. Lawrence, 29 Hun 450. As to the particular cases in which an examination for that purpose is proper, we note that such an examination will not be permitted simply to enable the plaintiff to ascertain whether or not he has a cause of action against the defendant. The plaintiff must establish on his application that he has a cause of action. Muller v. Levy, 52 Hun 123. But if he is able to state a complete cause of action, then the moving papers them- selves show that no examination is necessary, since the same statement of the cause of action would be sufficient as a com- plaint. Martin v. Clews, 18 State R. 463 ; Dahell v. Fahys Watch Case Co., 58 N. Y. Super. 136. So that it appears that the examination will be permitted in such case only when the plaintiff states a cause of action, but is unable to state mate- rial and necessary facts with sufficient definiteness and certainty to constitute a good complaint. Frothingham v. Broadway R.R. Co., 9 Civ. Pro. 304; Hutchinson v. Lawrence, 29 Hun 450. To frame an answer. — An examination of the plaintiff may be had to enable the defendant to answer when it is made to appear that such an examination is necessary. An examination for that purpose was sustained in Sprague v. Butterworth (22 Hun 502), where the defendants refused to accept certain bales of goods, asserting that they were fraudulently made up, contain- ing foreign substances other than the goods purchased, and the bales had been returned to plaintiffs, who refused to accept them and attached them as the goods of defendants. It was held that the defendants had made out a case for the examina- tion of plaintiffs as to the contents of the bales (other cases are Campbell v. Am. Zylonite Co., 53 Super. 131 ; Cornell v. Fryer, 1 Civ. Pro. 88, «.), but the examination will not be ordered if the defendant has other means of obtaining the information. Strakosch Press Publ. Co., 53 Hun 503. See Thebaud v. Hume, 39 State R. 446. To amend. — An order of examination of a party has been upheld for the purpose of enabling a party to prepare an amended pleading (Note on Exn. before Trial, 1 Civ. Pro., p. 356 EVIDENCE. [CH. XIV. 85), but the cases are rare. In Robertson v. Russell (20 Hun 243) it was denied for an insufficient statement of facts. After issue to prepare for trial. — It was formerly held in this department and in others that the right of examination of an adverse party before trial was limited to a case in which it was made to appear that such examination was necessary and mate- rial to enable the party seeking the examination to make out an affirmative cause of action or defence {Adams v. Cavanaugh, 37 Hun 232; Stickier v. Tillinghast, 43 Id. 95), but the Court of Appeals in Herbage v. The City of Utica (109 N. Y. 81) held that the right was not so limited, but that a party might in the dis- cretion of the judge have a general examination of his adver- sary as a witness before as well as at the trial. And when the relation of principal and agent or broker and customer is shown to exist, the right of examination is not restricted, the principal having a right to a knowledge of what the agent or broker may profess to have done in the course of his employment. Judakv. Lane, 14 Daly 308 ; Talbot v.Doran cV Wright Co., 16 Daly 174; s. c. 30 State R. 558; Miller v. Kent, 59 How. Pr. 321. While the court has the power to compel an examination of an adverse party beyond the mere limit of establishing an affirmative claim (109 N. Y. 81), yet it rests solely with the court to determine whether the case made by the affidavit is sufficient, and its discretion in determining that inquiry is not open to review on appeal. Jenkins v. Putnam, 106 N. Y. 272. It remains, therefore, to determine what must be shown to establish that the examination of the adverse party is necessary and material. The rule requires and the cases hold that the statement of the conclusion that the examination is material and necessary in the language of the statute is not enough. Corbert v. JDe Comeau, 44 Super. 306; Crooke v. Corbin, 23 Hun 176. Some spe- cial circumstances must be shown making it important to take the testimony before trial instead of at the trial. Williams v. Folsom, 52 Hun 68; First Nat. Bank v. Lindenmeyer, 29 State R. 300. It must further be shown that the examination is actually to be used upon the trial. Fogg v. Fisk, 30 Hun 61 ; U'i/liamsv. Foster, 16 Civ. Pro. 429; 52 Hun 68. Rule 83 provides that where an examination is required under these sections (870, 871, and 872) the affidavit shall state §§ 39 8 > 399-J TAKING A PARTY'S EXAMINATION. 357 the facts and circumstances which show, in conformity with subd. 4 of § 872, that the examination of the person is mate- rial and necessary. In an action for personal injuries the court has no power to compel the defendant to submit to a surgical examination of his person. McQuigan v. Del., L. &> IV. R.R., 129 N. Y. 50; s. c. 41 State R. 382; Union P. R.R. v. Botsford, 141 U. S. 250. Under the 7th subdivision, the officers and directors of a cor- poration may be examined and compelled to produce such books and papers of the corporation as would aid them in the giving of their testimony. Frothi?igham v. Broadway R.R. Co., 9 Civ. Pro. 304 ; Levey v. N. Y. Cent. 6-* IT. R. R.R. Co., 53 Super. Ct. 263 ; Talbot v. Doran 6° Wright Co., 16 Daly 174 ; s. c. 30 State R. 558. This provision does not in any way impair the right of inspection given by the previous sections. Mr. Rumsey (vol. 2, p. 16) says that there is a conflict in the cases as to whether a party other than a corporation maybe required to produce books and papers upon the examination. The Code contains no direction in regard to it. It has since been de- cided by the General Term of the Superior Court that upon an examination before trial a party may be required to produce their books as upon the trial, and can be compelled to refer to them for the purpose of answering proper inquiries as upon the trial. Dyettv. Seymour, 19 State R. 714. § 398. The taking of a party's examination in his own behalf. — It is now held by the General Term of the Court of Common Pleas (McViteyv. Stanton, 20 Civ. Pro. 410), although a different rule seems to prevail in the Supreme and Superior Courts, that in a proper case a party may obtain his own exam- ination to be taken upon the trial when it appears probable that for controlling reasons he may not be able to be present at the trial. § 399. To perpetuate testimony. — Subdivision 6 is a sub- stitute for the remedy formerly obtained by a bill in equity to perpetuate testimony, and it has been held that this sub- division requires the applicant to show substantially the same state of facts that a bill to perpetuate testimony disclosed. Matter of Ketchum, 60 How. Pr. 154. The requisites of such a bill are referred to above. It must state the matter touching 358 EVIDENCE. [CH. XIV. which the plaintiff is desirous of taking evidence, and must show his interest in the subject and that the defendant claims to have an interest to contest the title of the plaintiff and that the matter cannot be made the subject of present judicial inves- tigation, and that the evidence of a material witness is likely to be lost by reason of his death or departure. Martin v. Hicks, i Abb. N. C. 341. If the applicant can bring a suit, he should show why it is not brought, the ordinary reason for his not bringing it being that the right of action belongs to the adverse party, or that the adverse party has raised some impediments as an injunction to the immediate trial of the action. Matter of Ketchum, supra. § 400. Examination of witnesses de bene esse. — It is a matter of great convenience and of frequent occurrence to take before trial the examination of witnesses who are not likely to be within the jurisdiction at the time of the trial, so that they can then be compelled to attend; § 871 and subd. 5 of § 872 provide for such a case. The practice is substantially the same as has always existed and as existed at common law. The affidavit to obtain an order for the examination of a witness in such a case must show: (1), that an action is pending, and its nature and the substance of the judgment demanded; (2), the name of the parties and attorneys as provided by subd. 1 ; (3), if the application is by defendant, the nature of the defence ; (4), the name and residence of the witness ; (5), that the testi- mony of such witness is material and necessary for the party making the application and the facts and circumstances show- ing such materiality; (6), that the witness is about to depart from the State, or that he is so sick or infirm as to afford rea- sonable ground for apprehension that he will not be able to attend upon the trial, or other special circumstances which render it proper that he should be examined. § 401. The order. (Co. Civ. P. § 873.)— Although this sec- tion makes use of the word "must," yet the judge is not required to grant the order for examination in either instance specified, even when all the matters set out in the preceding section are fully stated (101 N. Y. 176 ; 106 N. Y. 272). The judge can exercise a judicial discretion. He must be able to see from facts disclosed in the papers that the testi- §§ 402, 403-J VACATING THE ORDER. 359 mony is material and necessary. If from the nature of the action and the other facts disclosed he can see that the exam- ination is not necessary for the party seeking, he is not obliged to make the order. This section sufficiently defines the requi- sites of the order. § 402. Vacating the order.— When the purpose is to move to vacate the order for insufficiency of the papers upon which it was granted, the application may be made to the judge who granted it, or upon notice to the judge before whom the exam- ination is directed. If the purpose is to move to vacate upon new affidavits a notice of motion must be given. § 403. Examination, how taken. (Co. Civ. P. § 880.) — The examination is subject to the same rules as if taken upon the trial. The judge, therefore, must pass upon the objections which are taken to questions as to their relevancy and as to their form (21 Hun 268, 272; 6 Civ. Pro. 152), although by § 883 objection to the relevancy or substantial competency of a ques J tion or an answer may also be taken upon the trial. Objections to the form of a question, as that it is leading, etc., must be taken at the time of the examination. If the examination is taken before a referee he acts ministerially, and objections as to the relevancy or form of questions must be referred to the court or judge. A witness cannot on such examination be compelled to answer any question which may tend to criminate or degrade him. Funk v. Tribune Ass., 4 Civ. Pro. 408. And while, gen- erally speaking, the fact that the examination is sought in a proceeding charging him with fraud or crime, is no reason why the order of examination should be vacated; the judge before whom the examination is held will protect the witness from questions which may tend to criminate him. Dames v. Fish, 35 Hun 430. See Kinney v. Roberts, 26 Hun 166 ; Yamato Trading Co. v. Brown, 27 Hun 248. This section (880) requires that the deposition when com- pleted must be carefully read to and subscribed by the person examined and certified by the judge or referee taking it. The ordinary jurat, therefore, is not enough. The officer must cer- tify that the examination has been read to the witness, though the word " carefully " need not necessarily be used. Foster v. 360 EVIDENCE. [CH. XIV. Bullock, 12 Hun 200. A party may waive both the filing and the certificate (33 Hun 1). § 404. Deposition to be used on motion. (Co. Civ. P. § 885.) — This section provides a means of procuring the affi- davit of a person other than a party to be used upon a motion. The mode of procedure is to prepare an affidavit to be signed by the person whose affidavit is desired. This affidavit should set out as clearly as possible the facts which are supposed to be within the knowledge of the person whose deposition is required, — the purpose being to prepare such an affidavit as the person can make. This affidavit is then presented to him. If he is willing to make an affidavit, but not such an affi- davit as is submitted to him, an affidavit such as he is willing to swear to must be prepared ; but if he refuses to make any affidavit bearing upon the facts which the applicant believes are within his knowledge, then the applicant may make an affi- davit setting out that he intends to make a motion in the case, or oppose a motion noticed against him; he must specify the nature of the motion and that the person whose affidavit he desires has knowledge, or presumably has knowledge, of facts which the applicant desires to present on the motion, and that he has presented to him an affidavit embodying such facts as he believes are within his knowledge and that he has refused to make it. Thereupon the court may make an order appointing a referee to take the deposition of such person. Notice to the adverse party is not necessary. The proposed witness may move to vacate the order, but the adverse party cannot, nor can he cross-examine the witness. It seems also that the witness is not entitled to the assistance of counsel upon the examination (2 Dem. 399). DEPOSITIONS TAKEN WITHOUT THE STATE FOR USE WITHIN THE STATE. This Article provides the various remedies for procuring the evidence of a witness who is beyond the jurisdiction of the court so that he cannot be subpoenaed to attend at the trial or hearing; and you will observe that this is done by means of a letter of authority, or commission issued by the court to some person in the country where the witness is, directing him to take § 4°4~] DEPOSITIONS WITHOUT THE STATE. 36 1 the examination of the witness. There are four forms in which such a commission may be issued: (1), to examine a specified witness or witnesses on written interrogatories, (2) or upon oral, or partly oral and partly written interrogatories, (3) or to exam- ine any witnesses who may be produced upon oral questions, or (4) letters rogatory. The instances in which a commission to take testimony may be issued are specified in § 888, and it is to be noted that the issuing of a commission is not limited to instances in which the testimony is required upon the trial, but that it may be obtained whenever it is necessary to enable a party to enter a final judg- ment, and in some instances even after judgment. The appli- cation for a commission is founded on an affidavit showing that the case is one of those mentioned in § 888, and that the tes- timony of one or more witnesses not within the State is mate- rial to the applicant. The application should be made promptly after issue, and unreasonable delay may be cause for denying the motion (3 Bosw. 661). The granting of a commission where no stay of proceedings is asked for is almost a matter of course if applied for within a reasonable time (34 Super. Ct. 211), but where a stay of proceed- ings until the return of the commission is asked for, it will not be granted where there is reason to believe that it is sought for the purpose of delay or that it will work an injustice to the opposing party (1 How. Pr. 58). The granting or withholding of a stay is a matter within the sound discretion of the judge to whom the application is made. The order for the commis- sion will direct to whom it shall be issued and will name the witness to be examined, and will provide whether the examina- tion be by written or oral interrogatories. If the application is for an examination upon oral questions, special reason must be shown therefor. If the examination is to be by written inter- rogatories, they must be prepared and a copy served upon the adverse party with a notice that they will be presented to the judge with any cross-interrogatories the adverse party may desire to present at a time specified in the notice. There is no express provision in the Code or in the rules as to the mode of presenting the interrogatories and cross-interrogatories for set- tlement. Upon their settlement the judge passes upon the materiality and competency of the questions, or, as is more common, the settlement is by consent of counsel reserving by 3^2 EVIDENCE. [CH. XIV. stipulation, all objections to the competency of the evidence to be taken upon the trial. § 405. Open commission. (Co. Civ. P. §§ 894-897.)— An open commission permits the commissioner named to take the examination of such witnesses as may be brought before him. Such commissions are not ordinarily granted. They entail the expense of employing counsel at the place where the ex- amination is to be had to cross-examine the witnesses and may in effect change the place of trial (85 N. Y. 546). Neither this form of commission nor an examination upon oral ques- tions can be allowed when the adverse party is an infant or an incompetent person, or where the testimony is to be taken else- where than in the United States or in Canada (§ 895). § 406. Letters rogatory. (Co. Civ. P. § 913.)— Letters rogatory are directed to a judicial tribunal or officer of a for- eign country with a request to summon the witness and take the testimony instead of appointing a commissioner to take it (1 Greenleaf Ev. §320). This form of taking testimony may be resorted to where the examination of a witness under a com- mission is not permitted or provided for by the laws of the country where the witness is resident. In such case the mat- ter must be referred to the judicial tribunals of that country to proceed if they will as a matter of courtesy (59 N. Y. 313; 3 Abb. Pr. 470; 5 Sandf. 674). § 407. Suppression of deposition. (Co. Civ. P. § 910.) — When it appears by affidavit that a deposition has been improperly or irregularly taken or returned, or that the per- sonal attendance of the witness upon the trial could have been procured with due diligence by a subpoena, or that the attorney for either party has practiced any fraud or unfair conduct to the prejudice of the adverse party in the course of the proceed- ing, the deposition may be suppressed. Where a party knows of an objection to the execution of a commission after it has been executed and returned, and makes no motion to suppress it, the objection will come too late upon the trial (89 N. Y. 570), but he may do so if he has had no opportunity to move to sup- press before the trial (2 Bosw. 267), and unless the deposition is suppressed, it may be read upon the trial, even though the witness is present (33 Hun 546). § 407-J SUPPRESSION OF DEPOSITION. 363 The courts watch the execution of a commission with care, since this mode of procuring evidence is exceptional, — allowed because of the necessity of the situation. Misconduct, which will furnish a ground for the suppression of the commission, need not be shown to have been actually prejudicial if it afforded an unfair advantage. Thus, where the interrogatories and cross-interrogatories were furnished to a witness before the examination, this was held a sufficient ground for suppress- ing the commission (44 Super. Ct. 531; 31 State R. 127). CHAPTER XV. TRIALS. CHAPTER X., CODE OF CIVIL PROCEDURE. PLACE OF TRIAL. (Co. Civ. P. §§982-991.) The sections of this Article have reference to actions triable in the Supreme Court. Actions brought in the various Superior Courts must of course be tried within the territorial jurisdic- tion of the respective courts. The place of trial of an action is termed the venue. § 408. Actions to be tried where the subject is situated. (Co. Civ. P. § 982.) — The general rule is that actions relating to real property are to be tried in the county in which the property, or some part of it, is situated. The principal real actions are enumerated in this section, and there is added a gen- eral clause, " and every other action to recover or to procure a judgment establishing, determining, defining, forfeiting, annul- ling, or otherwise affecting an estate, right, title, lien, or other interest in real property or a chattel real." A chattel real is an estate for years or an estate for life after the death of the grantee or devisee (1 R. S. 722; §§5 and 6). The language of the section is so broad that it is enough for us to inquire what actions having reference to real property are not included in it. We note that the question as to whether title to real property is involved is to be determined upon the pleadings, and extraneous evidence will not be received upon hat question (22 Hun 506). Actions to recover damages for the breach of a contract to convey lands are not within this section, even though an in- (364) §§ 409, 4!0-] LOCAL AND TRANSITORY ACTIONS. 365 quiry into the title of the land may be involved. Hogg v. Mack, 53 Hun 465; Oakes v. De Lancey, 35 State R. 775. As to actions for damages for trespass guare clausum, the decisions conflict, — in the first department such actions being held not to be within the section {Dexter v. Alfred, 35 State R. 489), while in the second department the ruling is the other way (Freeman v. Thom- son, 50 Hun 340). An action by a second mortgagee to compel the first mortgagee to assign his mortgage on tender of the amount due, is not an action relating to real estate within this section. Yates Co. Bk. v. Blake, 43 Hun 162. So an action to pro- tect water running on plaintiff's land and to restrain defendant from diverting it, is not an action included within this section. Thompson v. Attica Water Co., 1 Civ. Pro. 368. All actions to abate a nuisance, whether legal or equitable, are within this section. Home v. City of Buffalo, 15 Civ. Pro. 81. Foreclosure suits are triable only in the county where the property is sit- uated, and hence the trial cannot be adjourned to another county. Gould v. Bennett, 59 N. Y. 124. An action to set aside a general assignment of property including real estate must be tried in the county where the land lies. Acker v. Leland, 96 N. Y. 383. So an action by a receiver to set aside a conveyance of real estate (66 How. Pr. 391). § 409. Actions tried where cause of action arose. (Co. Civ. P. § 983.) — Actions were formerly distinguished as local or transitory. Local actions are such as are confined to par- ticular places in which they may be brought; transitory actions are those which follow the person of the defendant, and may be brought wherever he may be found. The actions here specified are local, and the locality is determined, not by the subject-matter of the action, but by the place where the cause of action arose. They are of three classes: (1), to recover penalty ; (2), actions against public officers ; (3), to recover chattels distrained, or damages for a distress. § 410. Actions to be tried at the place of residence. (Co. Civ. P. § 984.) — In all actions except those specified above, the place of trial is determined by the residence of the parties, — meaning the place of actual residence, but not necessarily the domicil of the party. Thus the domicil of the wife is legally that of her husband ; 3^6 TRIALS. [CH. XV. but if she in fact reside apart from him, in a suit brought by her against him he cannot insist that the cause shall be tried where he resides, on the theory that that is her place of resi- dence because it is her domicil. Lyon v. Lyon, 30 Hun 455. See Veneer. Vence, 15 How. Pr. 497. The residence of a corporation within this section is the place where it has its principal place of business; and if a domestic corporation, that is determined by the place designated in its certificate (2 Civ. Pro. 268); but a railroad corporation is said to be a resident of every county through which its railroad passes. People v. Barker, 48 N. Y. 70, 84. If the plaintiff is a non-resident the action must be brought in the county where a sole defendant resides ; if there are several defendants residing in different counties, then in any of such counties. If the defendant is a non-resident the action must be brought in the county where the sole plaintiff resides ; or if there are several plaintiffs residing in different counties, in any one of such counties. If all the plaintiffs and all the defendants are non-residents it may be brought in any county. When we speak of the place where the action may be brought, we refer to the place designated as required in the summons as the place of trial and not at all to the place where the summons may be served ; that, of course, in the Supreme Court may be served in any county where the defendant can be found. § 411. Change of place of trial. (Co. Civ. P. §§ 985, 986, 987.) — If the place of trial designated is not the proper one, still the court may proceed to trial unless the place of trial is changed, as provided by these sections. If the defendant be- lieves himself entitled to and desires a different place of trial from that designated in the summons, the practice requires that before or at the time the answer is served he should serve upon the plaintiff a demand that the place of trial be changed to the county he proposes as the proper county. The plaintiff may then within five days serve upon defendant a notice that he consents to such change. If he does not so consent, the de- fendant may, after the expiration of the five days, and within ten days, — in all fifteen days after demand, — make a motion for a change of place of trial. The motion is made at a term of §4 JI -J CHANGE OF PLACE OF TRIAL. 367 the court in the district named in the summons as the place of trial. A change of place of trial is an absolute right when the action is not brought in the county required by the previous sections, but where it has been brought in the proper county, the court has a discretionary power to change the place of trial in two instances: (1), when there is reason to believe that an impartial trial cannot be had in the proper county; and (2), when the convenience of witnesses and the ends of justice will be promoted by the change (§ 987). It will be observed, therefore, that the character of the motion to change the place of trial will depend upon whether it is sought as a matter of strict right because the proper county has not been named or as a matter of discretion and convenience. In the former case a demand is essential and the lapse of the required time is essential. Then, if no consent to change has been given, the defendant may move upon an affi- davit setting out the character of the action if it is local, or the residence of the parties if transitory; and if he brings himself within the provisions of §§982, 983, 985, the motion must be granted. But if he applies upon the ground of the convenience of witnesses, the motion will require more preparation. The affidavit should in such case be made by defendant (4 Hill 62, note a); he must state the names of the witnesses he expects to call whose convenience will be affected by the change ; and he must give their residence, and he must state that each and every of them is material to his defence as he is advised by his counsel, and that without the benefit of their testimony he can- not safely proceed to trial. These matters should not only be stated in general terms, but enough of the character of the action and of the facts which the witnesses are expected to prove should be stated to enable the court to see that the wit- nesses are in fact material and necessary. The affidavit should state the character of the defence and the fact that the affiant has disclosed to his counsel what he expects to prove by the witnesses named, and that he has a good defence on the merits as he is advised by his counsel after such statement. Rules 47 and 48 make special provision for this class of motions. Rule 47 provides that no order to stay proceedings for the purpose of moving to change the place of trial shall be granted unless it shall appear from the papers that the defend- 368 TRIALS. [CH. XV. ant has used due diligence in preparing the motion for the earliest practicable day after issue joined. Such order shall not stay the plaintiff from taking any step except subpoenaing witnesses for the trial without a special clause to that effect. Rule 48 provides that in addition to what has usually been stated in affidavits on motions to change the place of trial, either party may state the nature of the controversy and show how his witnesses are material, and may also show where the cause of action or the defence, or both of them, arose, and those facts will be taken into consideration by the court in fix- ing the place of trial. The general ground of opposing a motion to change the venue for convenience of witnesses is to show that there are an equal number of more witnesses who will be inconvenienced by the change. The plaintiff making such defence must set out the names and residence of the witnesses he proposes to call, and that they are material and necessary for the prosecution of his action, in substantially the same manner as the defendant. The question to be determined is upon all the evidence where the trial can be had with the least annoyance and inconvenience to the witnesses, but the court will also take into consideration the delay which results from the change and any manifest advantages which there may be in having the trial at one place or the other (29 Hun 137 : 56 Hun 453 ; s. c. 31 State R. 355). ISSUES AND THE MODE OF TRIAL THEREOF. § 412. Constitutional provision as to trial by jury. — The trial of actions before a judge alone or before a judge with a jury, preserves the substantial features of trials as they existed before the Code in courts of equity and in courts of law. The constitution of the State provides that " The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever, but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law'' (Cons., Art. 1, §2). "Heretofore" means prior to 1777, in which year the first constitution containing a similar pro- vision was adopted. § 413. Issues denned. (Co. Civ. P. § 963.) — Issues arise where a fact or a conclusion of law is maintained by one party § 4 T 4-] WHEN ISSUE LEGAL AND EQUITABLE. 369 and controverted by the other (§963). They are presented by the pleadings, and are of two kinds: issues of law and issues of fact (Ibid.). Issues of law which are raised by demurrer may arise either in an action at law or in equity, but in either event they are triable by a judge without a jury (§ 969). In the Supreme Court, the particular branch of the court which sits to hear issues triable by a judge only, is the Special Term. Issues of fact may likewise arise in actions which were for- merly known as suits in equity, as well as in actions at law. If the issues thus raised are such as were formerly triable by a jury, the parties still have a right to such trial under the con- stitutional provision above cited. Issues of fact arise either (1) upon a denial contained in the answer of a material allegation of the complaint, or upon an allegation contained in an answer that the defendant has not sufficient knowledge or information to form a belief with respect to a material allegation of the complaint, or (2) upon a similar denial or allegation contained in the reply with respect to a material allegation of the answer, or (3) upon a material allegation of new matter contained in the answer not requiring a reply unless an issue of law is joined thereupon, or (4) upon a material allegation of new matter contained in the reply, unless an issue of law is joined thereupon (Co. Civ. P. §964). § 414. When the issue is legal and when equitable. — It may not always be easy to determine under the Code system of pleading whether the issue tendered is one triable by a jury or not. When there is no counterclaim interposed, the charac- ter of the action and the mode of trial are determined abso- lutely by the complaint. Mackellar v. Rogers, 109 N. Y. 468; Clark v. Blumenthal, 9 Civ. Pro. 40. If the complaint contains two causes of action, one of which is equitable and the other legal, the plaintiff will be deemed to have waived his right of trial by jury and to have elected to try both issues before a judge (Cogswells. N. Y., N. H. ir H. R. Co., 105 N. Y. 319), and the defendant may in such a case insist upon a trial by the court without a jury, but he may also demand that the legal issue be tried before a jury, and the court may then order the legal issue to be tried before a jury, reserving the trial of the equitable 24 37° TRIALS. [CH. XV. issue. Sturm v. Atlantic Mut. Ins. Co., 38 Super. 281, affi'd 63 N. Y. 77. If the cause of action is of such a character that the plaintiff is entitled to either legal or equitable relief, the mode of trial, it seems, will be determined by the relief which he asks in the complaint. Watson v. Manhattan R. Co., 53 Super. 137. If the case is one in which a right of trial by jury exists, and the plaintiff notices it for trial at Special Term, the de- fendant may object to the trial without a jur)' and may move to strike the cause from the calendar, and if the pleadings disclose a case triable by a jury under § 968, the motion must be granted. Glenn v. Lancaster, 109 N. Y. 641. But if the de- fendant also notices the case for trial at Special Term, he will thereby waive his right to trial by jury. Mackellar v. Rogers, 109 N. Y. 468. Where an equitable counterclaim is set up to a cause of action at law the plaintiff will not thus be deprived of his right to trial by jury, but the issue arising on the counterclaim may be first tried at Special Term, and then plaintiff's right to trial by jury be reserved. Thus, in Colvill v. Chubb (14 N. Y. Sup. 717), — which was an action at law to recover upon a policy of insurance, — defendant set up an equitable counterclaim asking for a reformation of the policy upon which the action was brought. An order was made staying the trial of the issue at circuit on the complaint until after the trial of the equitable issue on the counterclaim at Special Term (Co. Civ. P § 974). § 415. Cases in which trial by jury is a right. (Co. Civ. P. §§ 968, 970.) — The Code provides that an issue of fact must be tried by a jury unless a jury is waived in each of the follow- ing actions: (r). An action in which the complaint demands judgment for a sum of money only. (2). An action of eject- ment; for dower; for waste; for nuisance; or to recover a chat- tel(§ 9 68). An issue of fact triable by a jury must be tried in the Circuit Court, and an issue of fact triable by the court or an issue of law may be tried in the Circuit Court or at a Special Term of the Supreme Court as prescribed by the rules of practice (§976). In actions for divorce either party is entitled to a trial by jury (§ I 7S7^- The right to a jury trial in these actions may be obtained by a demand made when the cause is moved for trial §§ 4l6,4I7-J TRIAL BY JURY. 371 at Special Term, although no notice to settle the issues has been made. Galusha v. Galusha, 43 Hun 181. § 416. Cases in which trial by jury of certain issues must be directed. (Co. Civ. P. § 970.) — This section applies to all cases where trial by jury is a matter of right and is not pro- vided for by Co. Civ. P. § 968, but it has no application to the framing of special issues for trial by a jury in equity cases. Shepard v. Man. R. Co., 131 N. Y. 215. That case is provided for by § 971. An illustration of a case covered by this section is a divorce suit. If the answer puts in issue an allegation of adultery, the court must direct the trial of that issue by a jury (Co. Civ. P. § 1757). That is a case where a party is entitled " by express provi- sion of law to a trial by jury," hence that is a case where by § 970 the finding of the jury is conclusive. Carpenter v. Carpen- ter, 30 State R. 955. But in an equity suit where the right to a jury trial does not exist, the finding of a jury upon any ques- tion submitted to them is not conclusive; the case still comes to a hearing at Special Term, and the judge may either disre- gard the finding of the jury and find the facts according to its own judgment or may take fuller evidence. Learned 'v. Tillotson, 97 N. Y. 1 ; Acker v. Leland, 109 N. Y. 5. The finding of the jury being only in the nature of an aid to the court of equity in determining the facts. Rule 31 provides for the framing of issues for trial by a jury. Section 970 was amended in 1891 by inserting the words, "or where one or more questions arise on the pleadings as to the value of property or as to the damages which a party may be entitled to recover"; and the question arose in Shepard v. Man. R. Co. (supra) whether the effect of this amendment was to render issues arising in equity suits as to value and dam- ages triable by a jury. The court held that the amendment did not have that effect, and that this section had no reference to equity suits. The words quoted were stricken out by amend- ment in 1892 (Laws of 1892, cb. 188). § 417. Trial of specific questions by jury in equity suits. (Co. Civ. P. § 971.) — We have already noticed the method of trying particular questions of fact in equity suits by means of figured issues (Co. Civ. P. § 823). 372 TRIALS. [CH. XV. Rule 31 provides for the framing and settling of such issues. The party who desires the trial of such issue of fact by a jury must within ten days after issue joined give notice of a special motion to be made upon the pleadings that the whole issue, or any specific questions of fact involved therein, be tried by a jury, and with the notice of motion he must serve a copy of the questions of fact proposed to be submitted to the jury for trial. The court may settle the issues or refer it to a referee to settle them. The effect of the finding of the jury has been stated above. § 418. Waiver of right of trial by jury. (Co. Civ. P. § 1009.) — This section specifies the various modes in which a party may waive his right to a trial by jury. The statement, however, is not exclusive. He may waive his right by noticing the case for trial at Special Term (109 N. Y. 468), or by pro- ceeding with a reference which has been ordered (Baird v. The Mayor, 74 N. Y. 382). Hence, when a reference is ordered against the contention of a party who insists upon his right of trial by jury, he must not proceed with the reference, but should appeal from the order of reference and procure a stay of proceedings upon the reference. A party may waive his right to a jury, (1), by failing to appear at the trial; (2), by written waiver; (3), by oral consent in open court; and (4), by moving the case for trial without a jury or by not objecting if the opposite party so moves it. If a party duly objects to proceeding in the mode of trial for which his adversary has noticed the case, he will not waive his right by taking part in the trial after his objection has been overruled, but he must put his objection upon the correct ground and must obtain a ruling and an exception. Hand v. Kennedy, 83 N. Y. 149. If a person having set out a statement of facts upon which he may be entitled to both legal and equitable 'relief, brings his case to trial before a jury, but makes out by evidence a case entitling him only to equitable relief, the complaint must be dismissed. The Circuit Court has no jurisdiction to grant equitable relief. Simis v. McElroy, 20 Civ. Pro. 288. § 419. Notice of trial and note of issue. (Co. Civ. P. § 977.) — At any time after the joinder of issue, and at least § 420.] INQUESTS. 373 fourteen days before the commencement of the term, either party may serve a notice of trial. All the parties defendant who have appeared are entitled to notice of trial whether they have answered or not (i E. D. Smith 349). The court cannot shorten the time for serving the notice of trial except as a con- dition for granting a favor (3 Daly 309). Without a notice of trial properly served a party cannot bring his case to trial unless his adversary consents. In New York and Kings Counties it is necessary to serve only one notice of trial, but in all other counties the case must be noticed for each term at wnich the party proposes to bring it to trial. Cases which have been marked " Reserved Generally " may be brought to a hearing on two days' notice (Sup. Ct. Rule N. Y. Co.). A note of issue is a memorandum stating the title of the case, the names of the attorneys, and the date of issue, — that is, the date of the service of the last pleading (but see Rule 24), and the term for which the case has been noticed. The note of issue must be filed with the clerk of the court twelve days before the term (§ 977). § 420. Inquests. (Co. Civ. P. § 980.) — When the action is reached, if either party fails to appear, the opposite party, if he has noticed the case for trial, may proceed. If the defend- ant has defaulted, the plaintiff may take a verdict, decision, or judgment, as the case requires; and if the plaintiff has de- faulted, the complaint may be dismissed, or the defendant may take a verdict or decision if he is entitled to an affirmative judgment on a counterclaim. Taking an inquest is presenting the evidence which is necessary to make out the primd facie right of recovery. If the answer contains no denials, no proof is needed on the part of the plaintiff; if only special denials, the particular facts denied must be proved. If the answer is a general denial the plaintiff must prove his entire case. The party taking the default must file his notice of trial with the clerk. In addition to such inquests taken when cases are regu- larly reached on the calendar, Rule 38 provides that inquests may be taken in actions out of their order on the calendar in cases in which they are allowed at the opening of the court, or on any day after the first day of the court, provided a sufficient affidavit of merits shall not have been filed and served, and pro- vided the answer shall not have been verified. An inquest for 374 TRIALS. [CH. XV. want of an affidavit of merits cannot be taken where the an- swer is verified (§ 980). An inquest may be set aside on motion for irregularity or on proper cause shown as where the notice of trial is irregular or insufficient (8 Abb. Pr. 43; 13 How. Pr. 535), or where a party has been misled (Brady v. Martin, 19 Civ. Pro. 134). The application must be based upon affidavits showing a meri- torious case, but the court cannot discriminate against such defences as were formerly regarded as unconscionable, as usury and the statute of limitations (40 Barb. 659; 10 Hun 109). § 421. Regulations as to procedure on trial. (Co. Civ. P. § 981.) — When the issue is brought to trial by the plaintiff he must furnish the court with copies of the summons and plead- ings, and of the offer, if any has been made. When the defend- ant brings the issue to trial he must furnish these papers if plaintiff does not. Rule 29 provides that on the trial of issues of fact one coun- sel only on each side shall examine or cross-examine a witness. He shall not repeat the answer or answers of the witness at the time he shall be under examination; and one counsel only on each side shall sum up the cause. During the examination of a witness the examining counsel shall stand, and the testi- mony, if taken down in writing, shall be written by some per- son other than their examining counsel; but the judge who holds the court may otherwise order or dispense with this re- quirement. No counsel shall occupy more than one hour in summing up unless by permission of the court. PROCEEDINGS ON JURY TRIAL. §422. Application for postponement. — When the cause is called for trial, if either party is not ready to proceed, he may move for an adjournment of the trial. If the motion is opposed it must be supported by affidavits (7 Abb. N. S. 382). When the application is on the ground of the absence of a material witness, the affidavit should show the facts respecting the efforts made to subpoena the witness or to secure his attend- ance, and the inability to procure his attendance (7 Cow. 369, 384). The absence of a non-resident witness when no efforts have been made to procure his testimony, by commission or de- position, would not generally be ground for postponement, but § 423-] DRAWING THE JURY. 375 circumstances may be shown which would render an adjourn- ment proper on the ground of the absence of such a witness. Cahillv. Hilton, 31 Hun 114. If the witness has been subpoenaed, but is not in attendance, the court will postpone the trial until proceedings can be taken to bring the witness before the court by attachment. When the motion to adjourn is denied and judgment is given for the opposing party, the affidavits used on the motion for postpone- ment, if properly filed, may be used on a motion for a new trial under the practice hereafter detailed, and if the motion is denied an appeal will lie to the General Term, so that the pro- priety of the direction of the trial court in that regard may be reviewed (13 Civ. Pro. 229; 6 Abb. N. C. 224). § 423. Drawing the jury— Challenges. — The first step on the trial is to call a jury. The qualifications and exemptions of trial jurors and the mode of selecting, drawing, and procur- ing their attendance in ordinary cases and the special pro- visions applicable to trial jurors in the city and county of New York and Kings County are detailed in the statute (§§ 1027- 1162). For our present purpose we may confine ourselves to the proceedings on the trial. When the trial is directed to proceed, the clerk calls twelve names from a box containing thirty-six or more names of jurors (§ 1042), summoned to at- tend as prescribed by the statute. If twelve do not respond or cannot be obtained in this manner, the court may direct the sheriff to require the attendance of such a number of talesmen from the bystanders or from the jury list as may be necessary (§ 1171). When a jury of twelve men (called a panel, from the parchment upon which the names were written and attached to the venire formerly issued to the sheriff) appear in the jury- box, the respective parties may exercise the right of challenge. There are two classes of challenges : first, to the array ; and second, to the polls. A challenge to the array is not common in civil actions. It is an objection to all the jurors returned by the sheriff collectively, and is the proper method of raising an objection based upon some wrongful act of the sheriff in draw- ing the jury. The objection must be taken in writing, though it need not be verified. Cox v. The People, 80 N. Y. 500. It is not a good challenge to the array in an action in a court of record that the officer who drew the jury is a party to or interested in 376 TRIALS. [CH. XV. the action, or counsel or attorney for or related to a party (§ rl 77)j nor is it a good cause of challenge to the array in an action in a court of record that the jurors were notified to attend by a person interested in the action or related to a party, unless it is alleged and established that one or more of the jurors drawn were not notified and the omission was intentional (§ 1 1 78). A challenge to the polls is an exception to one or more of the jurors who have appeared individually. At com- mon law challenges to the polls were distinguished either as peremptory or as principal challenge or challenge to the favor. Challenge for principal cause was based upon an objection which absolutely disqualified the jurors. A challenge to the favor presented an objection which raised a question as to whether the juror was indifferent and impartial between the parties. The distinction was important by reason of the different mode of trial of the challenge. A challenge to the favor was tried by two triers appointed by the court, and after two jurors had been accepted they became the triers in all subsequent challenges to the favor. These distinc- tions are now unimportant and were not preserved by the Code, under the provisions of which all challenges were alike triable by the court (§ 1180). All challenges to individual jurors are now either peremptory or for ciuse. If for cause it may be one which absolutely disqualifies the juror, as, for instance, that he is related by consanguinity or affinity to a party to the issue within a degree which disqualifies a judge (§ 1166 ; see ante, § 43 ), or that the juror is interested in the event (2 Johns. 194), or that he is in the employ or a tenant of either party (25 Barb. 29), or that he has formed or expressed a decided opinion (14 Wend. 131 ; 86 N. Y. 460, 467). Orthe cause alleged on chal- lenge may be one that does not absolutely disqualify, but which tends to show that the juror is not impartial or disin- erested, disqualifications formerly raised by challenge to the favor. Thus intimate friendship would be a ground for a challenge to the favor, but not for principal cause (1 Den. 281, 306). A challenge either to the array or for principal cause or for favor must be tried and determined by the court only (Co. Civ. P. § 1 1 80). Either party may except to the ruling of the court, and the correctness of the ruling may be reviewed on appeal (Co. Civ. P. §1180). A peremptory challenge is one for which the party is re- §§ 424-4 2 6.] MOTIONS ON THE PLEADINGS. _ 377 quired to give no reason. In a civil action ^foutt such chal- lenges are allowed in a court of record, and*w» in a court not of record (§ 11 76). § 424. Motions on the pleadings. — After the challenges are exhausted the jury is sworn. A motion may then be made by either party for judgment upon the pleadings : on the one hand, that the complaint does not state facts sufficient to con- stitute a cause of action, or that the court is without jurisdic- tion of the subject-matter; on the other, that the answer does not state a defence (82 N. Y. 576). If the ground is well taken the motion must be granted (76 N. Y. 397). If it is denied, an exception can be taken, upon which the ruling can be reviewed on appeal. The objections specified may be taken by demurrer, but they are not waived if not so taken (§ 499), and may be raised, and may be entertained upon motion at any stage of the case before evidence supplying the defect is heard. 49 N. Y. 259 ; 72 N. Y. 170; Abb. Trial Brief (Civil Issues), p. 27. The motion is ordinarily and properly made before the case is stated to the jury by the counsel who opens. § 425. The right to open and close. — The case is opened by the party having the affirmative — ordinarily the plaintiff. The question as to the right to open and close is decided by the court upon the pleadings (14 Hun 55), and it is error to deprive a party of this right (103 N. Y. 604). The question is raised by a request that the court should direct that the plain- tiff or defendant, as the case may be, has the right to open and close. If the plaintiff must prove any material fact under the pleading, — that is, if there is a denial in the answer which puts the plaintiff to any proof, — he is entitled to open and close (56 N. Y. 402). After the opening the examination of the witness for the party holding the affirmative proceeds. § 426. Objections and exceptions. — The theory upon which a trial proceeds is that the parties are fully informed of their legal rights, and that if any step is taken which is in con- flict with those rights they will at the time protest, other- wise they will be deemed to have acquiesced in what tran- spires. The form of protest is by an objection taken by the 3;8 TRIALS. [CH. XV. dissatisfied party, and the purpose of the objection is to lay a foundation for future redress if the erroneous course is persisted in. Hence it is necessary that the ground of the objection should be stated with reasonable clearness to call the attention of the judge and of the opposing counsel to the legal right which the protesting party thinks has been invaded. Sterrett v. Third Nat. Bank, 34 State R. 241, 245. If upon presentation of the objection the court or the opposing counsel regard it as well taken, the matter objected to, whether it be a direction of the court or a question of counsel, may be withdrawn; or if the counsel still urges his right to persist, the court may sustain the objection and refuse to allow the question or the procedure. In»that event the party against whom the objection is sustained must at the time cause his exception to the judge's ruling to be noted. If the objection does not appear to be well taken and the judge determines to disregard it, he "overrules it," and the objecting party must then take an exception to the judge's rul- ing. This he does simply by stating that he excepts, and proper entry is made upon the record by the stenographer. In a jury trial, where every step in the trial proceeds continu- ously from the calling of the case to the entry of the verdict, it is quite apparent that objections and exceptions must be taken by the counsel viva voce and entered in the stenographer's min- utes as the trial proceeds, and to this the only exception is that noted in § 995, to wit, that exceptions to the judge's charge may be taken before the jury have rendered their verdict. Every exception so taken raises a question of law of which a party may avail himself by subsequent modes of procedure looking to obtaining a new trial upon a correct ruling if his exception was well taken. § 427. Voluntary nonsuit. — The plaintiff has the right, at any time before the case has been committed to the jury to consider the verdict, to voluntarily submit to a nonsuit (§ 1182; 2 Wend. 295 ; 48 How. Pr. 542). By this is meant that the plaintiff may consent that his complaint be dismissed if for any reason on the trial it appears to him that he will not be able fully or properly to present his case, and if he believes he may come better prepared in another action. It is said that he may not thus voluntarily submit to a nonsuit when the case already made would entitle the defendant to relief or when the defend- §§ 428, 429-] WITHDRAWING A JUROR. 379 ant has set up a counterclaim (Abb. Trial Brief, p. 107), but that may not be the rule now since the amendment to §412 relieving the defendant from the operation of the statute of limitations in such a case (see ante, § m, p. 94). The plaintiff before taking the step must consider whether the statute of limitations would be a bar to another action. § 428. Withdrawing a juror. — Instead of submitting to a nonsuit the plaintiff, if he finds himself taken by surprise on the trial, — as by the absence of a witness who has been in attendance, or by the unexpected presentation of evidence by his adversary which he is not prepared to meet, or by any acci- dent which might render the further progress of the trial dis- astrous and unfair to him, — may ask the court to withdraw a juror. The result of this application if granted will be to pro- duce a mistrial, and the court may thus continue the pending action, and set the trial over to a future day, when the plain- tiff may come properly prepared to try the case afresh. The practice in this State has been long settled, that in cases of sur- prise the court may upon the plaintiff's application direct a juror to be withdrawn and order the case to stand over for trial to some future day. Messenger v. Fourth Nat. Bank, 48 How. Pr. 545, Daly, C. J.; 8 Cow. 127. Either party may ask for this relief on the trial (90 N. Y. 649). § 429. Compulsory nonsuit. — At the end of the testimony presented by the plaintiff, that is, after he has rested (7 N. Y. 266, 273), or after all the testimony on both sides has been sub- mitted (25 N. Y. 361), the defendant may ask the court to dis- miss the complaint on the ground that a verdict for the plain- tiff could not be sustained on the evidence — that is, that he has not proved his case. If this motion is denied, the defendant's exception to the ruling will, if the matter is properly raised on appeal, present the same question to the appellate court. The rules governing the decision of this motion are: (1). That the evidence presented by the plaintiff must be looked at in its most favorable light, — that is, it must be assumed to be true (53 N. Y. 14, 17; 130 N. Y. 206, 212). (2). If in any view of the evidence a verdict might be rendered for the plaintiff, or if there are questions of fact which might be determined for the plaintiff, and which if determined in his favor would 380 TRIALS. [CH. XV. entitle him to recover, the case should not be taken from the jury (66 N. Y. 334, 338 ; 36 N. Y. 39 ; 130 N. Y. 206, 212). But this does not mean that the judge must submit the case to the jury unless there be literally no evidence to support the plaintiff's case, or that he must so submit it if there is a mere scintilla of evidence The determining test is whether if the jury find a verdict for the plaintiff the judge should set it aside as contrary to the evidence (103 N. Y. 341; 41 Hun 575). (3). If there is a conflict of evidence arising from contra- dictory testimony, or if the inferences to be drawn from the testimony are conflicting, or if the witnesses are neither indif- ferent to the results nor consistent in their statements so that there is a question as to the credit to be given them, the case must go to the jury (2 Rumsey's Pr. 289, citing 48 Super. 215; 55 N. Y. 678; 1 Eastern Rep. 189. See also 1 Abb. N. C. 356; 70 N. Y. 177 ; 92 N. Y. 490). (4). When the plaintiff fails to prove the cause of action set up in the complaint, not in some particular or particulars only, but in its entire scope and mean- ing, he must be nonsuited on a proper motion, although he has proved a cause of action not alleged in the complaint (84 N. Y. 420; 57 N. Y. 108; 81 N. Y. 296). That is, when there is not mere variance in the proof, but a failure of proof (see ante, § 222 )- v" § 430. Directing a verdict. — Either party at the close of the testimony on both sides may ask the court to direct a ver- dict in his favor, upon the ground that the evidence does not make out the cause of action presented by the complaint or the defence set up in the answer. The power of the court to direct a verdict rests upon the same principles as apply in the case of compulsory nonsuit — that is, that the court is the judge of the law when there is no dispute about the facts (8 N. Y. 67). There is, however, a very different effect attached to a verdict rendered on a direction of the court from a judgment dismiss- ing the complaint on a nonsuit. In the former case the judg- ment on the verdict is res ajudicata, and bars a subsequent action for the same cause, while a nonsuit results only in a dismissal of the particular action, leaving the plaintiff at liberty to begin again. The decision of the motion upon the application for a direction is governed by the rules applicable to the granting of a nonsuit. The question always is whether upon the whole § 43 1 -] SUMMING UP. 381 evidence a verdict one way or the other would be set aside as being wholly unsupported by evidence or contrary to the evi- dence. A situation presenting some difficulties arises from the operation of a rule respecting motions for nonsuit and for a direction of a verdict, which we shall now attempt to explain. A party by asking for a nonsuit or for a direction for a verdict in his favor assumes that there are no questions of fact to go to the jury ; that is his contention. Suppose, then, the plain- tiff's counsel asks for a direction of a verdict in his favor, so long as that application is the basis of his contention, he can- not claim that there is a disputed question of fact to go to the jury. If, then, the judge, instead of granting his motion, denies it or directs a verdict for the defendant, the plaintiff cannot afterward complain that the case should have gone to the jury. Counsel, therefore, are in danger of failing to pre- serve all their rights. They may desire to raise the question that the evidence is insufficient to sustain a verdict against them, and they may also desire, if this point is ruled against them, to have the benefit of an appeal to the jury on the facts. In order to secure the right to go to the jury after such a motion has been made and ruled adversely, the counsel must either withdraw the motion or ask leave to go to the jury upon special facts or upon the whole case. Dillon v. Cockcroft, 90 N. Y. 649; Ormesv. Dauchy, 82 N. Y. 443; Koehler v. Adler, 78 Id. 289. § 431. Summing up. — It is said in People v. Cook (8 N. Y. 67, 77) that "whether counsel shall be permitted to address the jury is a matter resting in the sound discretion of the court." But this remark has been criticised as obiter, and its cor- rectness doubted (2 Rumsey's Pr. 304). It is probably the absolute right of a party that the jury shall be addressed in his behalf if there is any question for them to decide (Ibid.). The right is invariably conceded, though it is sometimes waived and the case is submitted to the jury on the judge's charge. The party holding the affirmative of the issue has the right to the final argument — this is a legal right not resting in discre- tion (85 N. Y. 236), and when that right is denied by the judge upon the trial, such denial furnishes ground for exception, which is the subject of review upon the trial (56 N. Y. 402; 92 N. Y. 122). 382 TRIALS- [CH. XV. Only one counsel on each side is permitted to sum up a cause, and he cannot occupy more than an hour in summing up, unless by permission of the court (Rule 29) ; but when several defendants have several interests and are represented by separate counsel, the court may permit more than one coun- sel to address the jury for the defendants. A discussion of the rights and duties of the advocate in addressing the jury must be left to the more extended treatment to be found in the works of writers upon that subject. § 432. Requests to charge. — It is the legal right of counsel on the trial of an action to submit to the court propositions of law bearing upon the evidence, and it is the duty of the court to instruct the jury on each proposition so submitted. A denial of such right is the subject of exception and of review upon appeal (86 N. Y. 479). The usual course upon a trial is to hand up the requests to the judge before the charge is made. There is no requirement that the requests should be in writing, or that they should be presented at any special time. Even when written requests have been submitted before the charge, the form of the charge may necessitate further requests after the charge, and it is proper that counsel should then present such requests orally and they should be passed upon (34 Hun 497; 35 Hun 386). The several propositions of law which the party desires to have charged should be stated separately and distinctly (51 N. Y. 416; 81 N. Y. 116). If part of a request is good and part bad, the court is not called upon to separate the good from the bad and charge the good (81 N. Y. 116, 127). It is not error for the court to refuse to charge an abstract proposition of law which is not applicable to the case, however correct it may be as a general proposition (56 N. Y. 538). If the court has charged substantially as requested, it is not error to refuse to repeat the charge (88 N. Y. 671). § 433. Exceptions to the charge. — It is provided by § 995 that an exception to a charge given to the jury must be taken before the jury have rendered their verdict. Hence such an exception may be taken after the jury have retired to consider their verdict. An exception may be taken not only to matters charged, but to the refusal of the judge to charge as requested. § 434-J GENERAL AND SPECIAL VERDICT. 383 In order to obtain the benefit of an exception to the charge, it is a general rule that the party excepting must call attention definitely and intelligibly to the portion of the charge to which he objects. An exception to the entire charge is too general and will not be regarded on appeal. Jones v. Osgood, 6 N. Y. 233; 80 N. Y. 614. It is enough, however, to except to the sup- posed erroneous statement in the charge; it is noi necessary to point out specifically the ground of exception, or to call atten- tion to what the exceptant supposes to be the correct proposi- tion (10 Abb. N. C. 311; 58 N. Y. 291). When a series of propositions are submitted to the court with a request that they be charged, and the judge charges some of them and modifies others, and charges them as so modified, and does not charge the others, an exception must be taken to the action upon each particular request which is un- satisfactory. It will not be enough to except generally to the departure of the judge from the entire series of propositions. It is the duty of counsel to take exceptions specifically to any omission or refusal to charge as requested (47 N. Y. 570 ; 88 N. Y. 13). § 434. General verdict— Special verdict. (Co. Civ. P. §§1186, 1187.) — A general verdict is one by which the jury pronounces generally upon all or any of the issues in favor either of the plaintiff or of the defendant. A special verdict is one by which the jury finds the facts only, leaving the court to determine which party is entitled to judgment thereon (§ 1186). In an action to recover a sum of money only, or real property or a chattel, the jury may render a general or a special verdict, in its discretion. In any other action, except where one or more specific questions of fact stated under the direction of the court are tried by a jury, the court may direct the jury to find a special verdict upon all or any of the issues. Where the jury finds a general verdict, the court may instruct it to find also specially upon one or more questions of fact stated in writing. The special verdict or special finding must be in writing; it must be filed with the clerk and entered on the minutes (§1187). When a special finding is inconsistent with a gen- eral verdict, the former controls the latter and the court must render judgment accordingly (§ 1188). These sections refer to (1) a general verdict, (2) a special 384 TRIALS. [CH. XV. verdict, and (3) a special finding. A general verdict is one in which the jury find either for the plaintiff, assessing the dam- ages in a proper case, or for the defendant. Such a verdict implies that the jury finds all the facts which are necessary to a recovery by the party in whose favor the verdict is given. A special verdict finds all these facts specifically and in detail, and leaves the judgment to be awarded by the court. A special verdict must contain all the facts necessary to sustain the judg- ment (15 Hun 153; 52 N. Y. 251, 256). The facts are thus all put on the record, and the law is submitted to the judge. The court may also direct the jury to find upon some one or more particular facts, but in that case all the other facts essential to a recovery by the party in whose favor judgment is given must be found by a general verdict, and if the special finding is incon- sistent with the general verdict, the special finding will prevail. When specific questions have been submitted to the jury and they are unable to agree thereon, they may still render a gen- eral verdict (30 Hun 428, affi'd 96 N. Y. 614; 32 State R. 460), unless the right of the party to the special verdict depends upon some one or all of the questions upon which the jury have failed to agree (23 Hun 114). § 435. Disagreement of the jury. (Co. Civ. P. § 1181.)— This section provides that when the jury are unable to agree after being kept together for such a time as is deemed reason- able by the court or officer before whom they were impanelled, they may be discharged and a new jury may be obtained. The cause must be tried anew before the second jury. § 436. Receiving the verdict— Polling the jury. — It is not necessary in an action in a court of record to call the plaintiff when the jurors are about to deliver their verdict (§ 1182), but the verdict should be received in the presence of the parties who have a right to have the jury polled, — that is, to have the question put to each of the jury separately whether the verdict announced by the foreman and recorded by the clerk is their verdict (4 N. Y. 547). The jury have power over their verdict until they are dismissed, and may correct it before that time, even though the clerk may have entered the verdict in his book of minutes (52 N. Y. 437). The jury may be directed to bring in a sealed verdict; by that is meant, that when the jury have §§ 437- 438-] REFERENCE OF THE ISSUES. 385 agreed upon their verdict, a written memorandum of it may be deposited in a sealed envelope with the clerk to be delivered to the court at an adjourned hour, and the jury may be permitted to disperse. But the jurors must all be in attendance in open court when the sealed verdict is received and opened (Abb. Trial Brief, p. 180, citing decisions of other States). §437. Entering the verdict. (Co. Civ. P. § 1 189.)— This section provides that when the jury renders a verdict or finds upon one or more specific questions of fact stated under the direction of the court, the clerk must make an entry in his min- utes specifying the time and place of the trial; the names of the jurors and witnesses; the verdict or questions, and the find- ings thereupon, as the case requires ; and the direction, if any, which the court gives with respect to the subsequent proceed- ings (§ 1 189). A special verdict or special finding must be filed with the clerk and entered in his minutes (§ 1187). TRIALS WITHOUT A JURY. § 438. Reference of the issues. (Co. Civ. P. §§ 1008- 1026.) — An issue of law must be tried by the court or by a ref- eree (§ 969). An issue of fact in an action in which a jury trial is not a matter of right under § 968, or wherein provision for a trial by a jury is not expressly made by law, must be tried by the court, unless a reference or a jury trial is directed (§ 969). The instances in which a trial by jury may be directed when a jury trial is not a matter of right have been already alluded to (P- 370- In an action triable by a jury, if the parties waive a trial, by a jury, of the issue of fact, the action must be tried by the court without a jury ; unless a reference is directed, in a case prescribed by law. But such an action other than to recover damages for a breach of a contract cannot be tried by the court without a jury, unless the judge presiding at the term where it is brought on for trial assents to such a trial. His refusal so to assent annuls a waiver in every case, except where the waiver arises from a party's failing to appear at the trial (§§ 1008, 1009). Hence a judge cannot be compelled to try actions of tort without a jury, or any action triable by a jury other than to recover damages for a breach of a contract. 25 386 TRIALS. [CH. XV. §439. Reference by consent. (Co. Civ. P. §§iou, 1012.) — Except in the cases mentioned in § 1012, the whole issue, or any of the issues in an action, must be referred, upon the consent of the parties, manifested by a written stipulation signed by their attorneys and filed with the clerk. The excepted cases designated in § 1012, are : an action to annul a marriage or for a divorce or separation; an action against a corporation to obtain a dissolution thereof, the appointment of a receiver of its prop- erty or the distribution of its property unless it is brought by the attorney-general ; an action where a defendant to be affected by the result of the trial is an infant. In these cases, although the parties consent, the court may or may not, in its discretion, order a reference, and when the reference is granted, the court must designate the referee. The statute does not prohibit the court from naming a referee suggested by the parties. §440. Compulsory reference. (Co. Civ. P. § 1013.) — The authority of the court to compel litigants to try their cases by a referee named by the court without their consent exists in certain instances. This is a matter of considerable practical importance. The judicial machinery of the State for the trial of causes is provided by the people at large and at public expense, but when the court may direct the trial to be had before a referee, not only are the parties compelled to submit their rights to a judicial tribunal which they have no voice in making, but one or both the parties are required to bear indi- vidually the financial burden of the reference. The instances in which such a trial may be ordered are restricted. The Code provides (§ 1013) that the court may, of its own motion or upon the application of either party without the consent of the other, direct a trial of the issues of fact by a referee when the trial will involve the examination of a long account on either side, and will not require the decision of difficult questions of law. In an action triable by the court without a jury a reference may be made as prescribed in this section to decide the whole issue or to report the referee's findings upon one or more spe- cific questions of fact involved in the issue. The last sentence does not give to the court an unlimited power to order a reference in any case triable by the court without a jury, but in such cases as in those triable by jury the §§ 44 1, 442.] WHAT CONSTITUTES A LONG ACCOUNT. 387 power of the court is limited by the general condition contained in the first clause of the section. Thayer v. McNaughton, 117 N. Y. in. Before the order can be made under this section in any action, it must be shown that the trial will require the examination of a long account on either side, and will not require the decision of difficult questions of law {Ibid.). A compulsory reference cannot be ordered in an action sound- ing in tort. Morrison v. Horrocks, 40 Hun 428 ; 40 How. Pr. 143; S 2 How. Pr. 115. § 441. What constitutes a long account. — The word "account" is used in its ordinary signification. The account must be made up of the dealings of one party with the other, although the account may be that of one party alone. The necessity of examining numerous items of damage does not constitute an account. Thus, in an action against a builder for damages for breach of a building contract, the various items of damage sustained were held not to constitute an account (U?ttermyer v. Beinhauer, 105 N. Y. 521), and so in an action to compel specific performance of an award as to certain shares of stock of a company, the fact that to ascertain the value of the shares an account of the assets and indebtedness of the company would be necessary, did not authorize a reference. Camp v. Ingersoll, 86 N. Y. 433. But the account here meant is not necessarily and exclusively a mutual account of a reciprocal character. The account may be all on one side (38 Super. 391). So an action to recover back moneys improp- erly taken or withheld by a public officer under false or erro- neous accounts rendered may be referred. People v. Wood, 121 N. Y. 522. There is no legal reason why a bill for services by an attorney should not be referred (9 State R. 685; 56 Super. 247), though in Martin v. Windsor Hotel Co. (10 Hun 304) it was said that ordinarily an order of reference in this class of actions should be denied; but there is no impropriety in a reference in such a case, and the matter is one of discretion (28 Hun 420). The number of distinct items involved should be such that a jury cannot carry them in mind so as to reach a just conclusion (4 Civ. Pro. 300). § 442. When the trial will require the examination of a long account. — It is not enough that the case may possibly 3 8 8 TRIALS. [CH. XV. involve the examination of a long account (117 N. Y. 111). The account must be the immediate object of the action (38 Hun 144). If the examination of the account is merely collateral, that will not justify a reference. Thus, in an action for goods sold and delivered, it appeared that the plaintiff had accepted notes and thus extended a credit, to meet which the plaintiff pro- posed to show that the credit was fraudulently obtained and that defendant was insolvent; it was held that the court erred in ordering a reference, on the ground that the trial required the examination of a long account. Kellor v. Payne, 51 Hun 316. So when an action is brought for a partnership accounting, and the right to an accounting is denied, that issue does not involve the examination of an account, although such examina- tion may become necessary after an interlocutory judgment (49 Super. 55; 14 Daly 16; s. c. 1 State R. 99; 12 Daly 95), or when- ever there are issues in the action undetermined which when determined may render the examination of an account un- necessary (18 How. Pr. 310; 3 Abb. N. S. 250). How numerous the items must be to bring the account within the section as being a long account must depend upon the dis- cretion of the court; but when the items are few, the reference cannot be ordered merely because the details which make up the transaction are numerous. Merritt v. Vigelius, 28 Hun 420. § 443. Who may be appointed referee. (Co. Civ. P. §1011.) — Rule 80 provides that unless by consent no person except an attorney can be appointed referee, " nor shall any person be appointed referee who is the partner or clerk of the attorney or counsel of the party in whose behalf such applica- tion for such appointment is made, or who is in any way con- nected in business with such attorney or counsel, or who occu- pies the same office with such attorney or counsel. When the stipulation names the referee, the clerk must enter an order of course, referring the issue or issues for trial to that person only. If the referee named in the stipulation refuses to serve, or if a new trial of an action by a referee so named is granted, the court must appoint another referee unless the stipulation expressly provides otherwise " (§ 1011). A referee appointed by the court must be free from all just objections, and no person shall be so appointed to whom all §§ 444. 445-] REFERENCES TO TAKE AN ACCOUNT. 389 the parties object, except in an action to annul a marriage or for a divorce or for a separation. A judge cannot be appointed referee in an action brought in the court of which he is a judge, except by the written consent of the parties, and in that case he cannot receive any compensation as referee (§ 1024). When the court is authorized to appoint a referee, it may in its discretion appoint either one or three. And when a refer- ence is made by consent of the parties, they may select any number of referees not exceeding five (§ 1025). Section 1026 relates to the manner of conducting the reference w.hen it is to more than one referee. § 444. References to take an account or report facts. (Co. Civ. P. § 1015.) — In addition to the powers conferred upon the court to direct a reference of an issue arising on the plead- ings, the Code provides that the court may likewise of its own motion or upon the application of either party without the con- sent of the other, direct a reference to take an account and report to the court thereon either with or without the testimony after in- terlocutory or final judgment, or where it is necessary to do so for the information of the court ; and also to determine and report upon a question of fact arising in any stage of the action upon a motion or otherwise, except upon the pleadings. The authority conferred by this section is restricted to the taking of an account, but this language includes more than the adjustment of items, charges, credits, and figures. It permits inquiries to be made in this manner when details are to be obtained and settled, as was the practice in courts of equity (86 N. Y. 433; 18 Abb. N. C. 381, 410). By § 827, which we have already considered, a more general power is conferred upon the court to direct a reference of certain interlocutory matters for the information of the court. § 445. Proceedings on trial before the court or a ref- eree. (Co. Civ. P. §§1017, 1018.) — The proceedings on the trial, whether before the court or a referee, in the taking of tes- timony, are substantially the same as on a trial by jury. A witness may be subpoenaed to attend before a referee and to produce books and papers as upon a trial by the court (§ 1017). The trial of an issue before a referee is brought on upon like notice and conducted in like manner, and the papers to be fur- 39° TRIALS. [CH. XV. nished thereupon are the same and are furnished in like man- ner as when the trial is by the court without a jury. The ref- eree exercises upon such a trial the same powers as the court, to grant adjournments, to preserve order, and to punish the vio- lation thereof, and also to allow amendments to the summons or to the pleadings; to compel the attendance of a witness by attachment; and to punish a witness for a contempt of court, for non-attendance, or refusal to be sworn or testify. Upon the trial of an issue of law, the referee exercises the same power as the court, to permit a party in fault to plead anew or amend; to direct the action to be divided into two or more actions; to award costs and otherwise to dispose of any question arising upon the issue referred to him. These powers are exercised in like manner and upon like terms as similar powers are exer- cised by the court upon a trial. The referee may direct judgment upon the pleadings and may make his report accordingly (51 N. Y. 309). He may permit a party to amend his pleadings as at a trial (30 Hun 512), but he cannot allow an amendment which will substitute a different cause of action from that set up in the original complaint (74 N. Y. 437). By Rule 30 it is provided, that on a hearing before referees the plaintiff may submit to a nonsuit or dismissal of his com- plaint, or may be nonsuited or his complaint be dismissed in like manner as upon a trial at any time before the cause has been finally submitted to the referees for their decision, in which case the referees shall report according to the fact, and judgment may thereupon be perfected by the defendant. In references other than for the trial of the issues in an action, or for computing the amount due in foreclosure cases, the tes- timony of the witnesses shall be signed by them, and the report of the referee shall be filed with the testimony, and a note of the day of the filing shall be entered by the clerk in the proper book, under the title of the cause or proceeding, and the said report shall become absolute, and stand as in all things con- firmed, unless exceptions thereto are filed and served within eight days after service of notice of the filing of the same. If exceptions are filed and served within such time, the same may be brought to a hearing at any Special Term thereafter on the notice of any party interested therein. §§ 44-6, 447-] OATH OF REFEREE. 39 1 § 446. Oath of referee. (Co. Civ. P. § 1016.) — This section provides that the referee before proceeding to hear the testi- mony must be sworn faithfully and fairly to try the issues, or to determine the questions referred to him, as the case requires, and to make a just and true report according to the best of his knowledge. If the parties are present and of full age the oath may be waived, and a waiver will be implied from proceeding upon the reference without a demand that the referee be sworn (56 How. Pr. 172), and in such a case -the failure of the referee to take the prescribed oath is not a jurisdictional defect (4 Abb. N. C. 80). But when there are infant parties, or where there are parties not personally present nor represented by counsel, the oath of the referee when testimony is to be taken cannot be dispensed with. There can be no waiver by one who is incapable of giving consent, or by one who is not represented and who knows nothing of the irregularity (56 How. Pr. 172); in such a case the failure of the referee to be sworn is ground for setting aside his report (5 Abb. N. C. 285; 4 Id. 78). § 447. Requests to find. (Co. Civ. P. § 1023.) — Before the case is finally submitted to the court or the referee, or within such time afterward and before the decision or report is ren- dered as the court or referee allows, the attorney for either party may submit in writing a statement of the facts which he deems established by the evidence and of the rulings upon questions of law which he desires the court or referee to make. Rule 32 requires that all requests to find facts or conclusions of law must be made at or before the time of the submission of the action for decision. The statements must be in the form of distinct propositions of law or of fact, or both, separately stated ; each of which must be numbered and so prepared with respect to its length and the subject and phraseology thereof that the court or referee may conveniently pass upon it. At or before the time when the decision or report is rendered the court or the referee must note in the margin of the statement the manner in which each proposition has been disposed of, and must either file, or return to the attorney, the statement thus noted, but an omission so to do does not affect the validity of the decision or report (§ 1023). Rule 32 prohibits the court or referee from making any addi- 39 2 TRIALS. [CH. XV. tional findings of fact or conclusions of law after he has made and settled the findings and conclusions submitted to him. Hence, if counsel wait until after the submission and decision of the cause to submit the findings they will come too late (no N. Y. 429). If the judge or referee does not pass upon the requests to find, the former remedy was to compel a finding one way or the other by motion (62 N. Y. 87), and though this remedy is not abolished by the present Code, it is supplanted by the simpler rule that a refusal to make any finding whatever upon a question of fact when a request was seasonably made is a ruling upon a question of law (§ 993; 82 N. Y. 449), which can be reviewed upon an appeal, as we shall shortly see. In drawing request to find such conclusions of fact as are necessary and material to support the conclusions of law to which the party believes himself entitled should be stated (43 Hun 387; 46 N. Y. 259). The facts are to be found, and not the evidence of the facts (4 Hun 415), and the facts should be presented in such order and in such detail as will enable the court on appeal to see how the decision follows logically from the facts, but they should not be unnecessarily numerous (5 Daly 44; 53 N. Y. S°4)- When the complaint is dismissed before the introduction of testimony, it is a determination that the complaint does not state facts sufficient to constitute a cause of action, and in such case a situation is presented which does not come within the provision of this section; neither does a case where judgment is rendered on the pleadings. Eaton v. Wells, 82 N. Y. 576. But in any and every case triable before a court without a jury, or heard by a referee, if any evidence is presented, a decision stating separately the facts found and the conclusions of law based thereon must be made. If it be not done, judgment can- not be reviewed. 30 N. Y. 328; Wood v. Lary, 124 N. Y. 83. § 448. Decision of the court— Report of referee. (Co. Civ. P. §§ 1021, 1022.) — The decision of the court or the report of the referee upon the trial of the whole issue of fact must state separately the facts found and the conclusions of law. It will consist, therefore, of such of the requests to find sub- mitted by the parties as the court or referee approves, and of such additional or different findings as he may make. The §§ 449» 45°-J REPORT OF REFEREE — EXCEPTIONS. 393 decision must direct the judgment to be entered thereupon (§ 1022). In an action where the costs are in the discretion of the court, the decision must award or deny costs, and if it awards costs it must designate the party to whom costs to be taxed are awarded (§ 1022). When the decision is upon the trial of a demurrer it must direct the final or interlocutory judgment to be entered thereupon ; where it directs an interlocutory judg- ment with leave to the party in fault to plead anew or amend, or permitting the action to be divided into two or more actions, and no other issue remains to be disposed of, it may also direct the final judgment to be entered if the party in fault fails to comply with any of the directions given or terms imposed (§ 1021). § 449. Decision of the court — Report of referee, when to be made and filed. (Co. Civ. P. §§ 1010, 1019.) — After the trial by the court of an issue of fact or of law its decision in writing must be filed within twenty days after the final adjournment of the term when the issue was tried. If not so filed, either party may move for a new trial on that ground, and the court may order a new trial either absolutely or unless the decision is filed within a time specified in the order (§ 1010). The referee's report upon the trial of an issue must be filed or delivered to the attorney for one of the parties within sixty days from the time when the cause or matter is finally submitted, otherwise either party may before it is filed or delivered serve a notice upon the attorney for the adverse party that he elects to end the reference. In that event the action must thenceforth proceed as if the reference had not been directed, and the referee is not entitled to any fees (§ 1019). CASE AND EXCEPTIONS. §450. Exceptions. — As we have before had occasion to remark, the rulings of the judge upon a jury trial on the admissibility of evidence and upon other questions, can be reviewed on appeal only when exceptions to the rulings have been properly taken by the party appealing. The same rule applies to trials before the court or a referee, except in one particular, which we now proceed to examine. Since the judge or referee is required to pass upon the requests to find and also to render a written decision stating the propositions of fact 394 TRIALS. [CH. XV. and law found by him, and these rulings are made after the case is submitted, there is manifestly no opportunity afforded to the party dissatisfied with the ruling to take exception orally. It is therefore provided by the Code (§ 994) that where an issue of fact is tried by a referee or by the court without a jury, an exception to a ruling upon a question of law made after the case is finally submitted, must be taken by filing a notice of the exception in the clerk's office and serving a copy thereof upon the attorney for the adverse party. The excep- tion may be so taken at any time before the expiration of ten days after service upon the attorney for the exceptant of a copy of the decision of the court or report of the referee, and a writ- ten notice of the entry of judgment thereupon. This notice of exception forms a part of the papers upon which an appeal from the judgment is heard. If then a party desires to preserve his right to review the rul- ings of the court on the findings, he must file his exceptions to the findings made or to the refusals to find, as the case may be, within the ten days specified. Unless the exceptions to the find- ings are properly filed, the findings will be conclusive and will not be open to review on appeal (122 N. Y. 449). But it is in the power of the court to permit a party who has allowed the time within which exceptions should have been filed to elapse through neglect, to file them nunc pro tunc (§ 783; 14 Abb. 86). § 451. To what findings exception may be taken. (Co. Civ. P. §§ 992, 993.) — It will be observed that by § 992 it is pro- vided that an exception may be taken to the ruling of the court or referee upon a question of law arising upon the trial of an issue of fact, but an exception cannot be taken to a ruling upon a question of fact. Every ruling of the judge upon a jury trial is a ruling upon a question of law. The judge has no power on such a trial to determine a question of fact except in one instance only, and that is upon a challenge to a juror (8 1 180), in which one instance an exception may be taken to his ruling upon that question of fact (§992). Similarly, every ruling of a referee or of a judge on a trial without a jury dur- ing the progress of the trial is a ruling on a question of law to which at exception may be taken. The only rulings of a court or referee on questions of fact are the findings of fact made after the case is submitted. As to these findings the Code pro- § 45 2. J A case. 395 vides that a refusal to make any finding whatever upon a ques- tion of fact, where a request to find thereupon is seasonably made by either party, or a finding without any evidence tending to sustain it, is a ruling upon a question of law to which an exception can be taken (§993). The inquiry then arises as to what steps are necessary in order to bring a question of fact up for review before the appel- late court. The answer is, that where a question of fact is sub- mitted upon conflicting evidence to a jury, the party against whom the jury find by their verdict can review that finding only by a motion for a new trial in the manner hereafter pointed out. If a question of fact is submitted on conflicting evidence to a referee, or a court without a jury, the finding of the court or referee on such fact can be reviewed only when the unsuccessful party has made a request to find the fact differ- ently from the finding made; then to a refusal to find as so requested an exception lies which brings the question of fact before the appellate court. Hugg v. Shank, 23 State R. 312. We may summarize this statement as follows: An exception to a ruling or finding on a trial is essential to a review of that ruling. Exceptions can be taken only to rulings on questions of law. Every ruling on a trial by jury, or by a court without a jury, or by a referee is a ruling on a question of law, except only findings of fact made by a court on a trial without a jury or a referee; to such findings of fact no exception can be taken unless made without any evidence tending to sustain it, but a party may request a different or contrary finding of the facts, and to a refusal to find as requested, an exception lies which will bring the disputed question of fact before the appellate court. § 452. A case — A case containing exceptions. (Co. Civ. P. § 997.) — It is quite apparent that in order that the proceed- ings had upon a trial of a question of fact should be reviewed, a record of the proceedings must be had, and that it must be in some manner authenticated. The record designed for that use is what is termed, in the sections of the Code we are now considering, "a case." In the rules the same record is spoken of under the term, "a case and exceptions," or ' a case contain- ing exceptions " (Rule 32). Where a party intends to appeal from a judgment rendered after the trial of an issue of fact, or to move for a new trial of such an issue, he must, except in cer- 39 6 TRIALS. [CH. XV. tain specified instances, make a case and procure the same to be settled and signed by the judge or referee by or before whom the same was tried, as prescribed in the general rules of prac- tice (§997). Rule 32 provides that a copy of the proposed case shall be made and served on the opposite party within ten days after service of a copy of the decision or report, and written notice of the entry of judgment thereon when the trial was had before a judge or referee; or if the trial was before a jury, within ten days after the trial, or within ten days after notice of the decision of a motion for a new trial, if such motion be made and not decided at the time of trial. The party upon whom the case is served has ten days thereafter within which to serve amendments to the case. The party proposing the case may then within four days serve the opposite party with a notice that the proposed case and amendment will be submitted to the trial judge or referee for settlement; that is, for his de- termination as to the amendments which are to be allowed. Each page and line of the proposed case and of the copy served are numbered to correspond. The party proposing amendments refers to the page and line of the case which he wishes to have corrected or added to. The party bringing the case and amend- ments on for settlement, marks on the margin of the proposed amendments those which he is willing should be allowed, and must mark against the others, for the convenience of the court, a reference to the page of the stenographer's minutes which is applicable. The time for settling the case must be not less than four nor more than twenty days after service of the notice (Rule 32). If a party omits to make a case within the time lim- ited, he waives his right thereto, and when a case is made and the parties omit within the time limited, the one to propose amendments and the other to notify an appearance for settlement, they shall respectively be deemed the former to have agreed to;the case as proposed and the latter to have agreed to the amend- ments as proposed (Rule ^^). But the court has power to enlarge the time to serve exceptions or a case or amendments (§ 783; 25 How. Pr. 438; 14 Id. 18; 27 Id. 133). The case must contain so much of the evidence or other pro- ceedings as is material to the questions to be raised thereby, and also the exceptions taken by the party making the case (§ 997). It is not necessary, therefore, to incorporate all the evidence in the case if the intention is only to review rulings § 453-J MOTIONS AT TRIAL TERM. 397 on questions of law. Thus, if the question to be reviewed arose upon the admissibility of evidence, enough of the testimony must be presented to show that the exception was pertinent and well taken. So the rule provides that a bill of exceptions shall only contain so much of the evidence as may be necessary to present the questions of law upon which the same were taken at the trial (Rule 34) ; but where the intention is to review a question of fact, all the evidence must be included in the case, since otherwise it would not be apparent that suffi- cient and proper evidence was not before the court to sustain the finding or verdict, and the case must contain a certificate to that effect (107 N. Y. 531). A case or exceptions should not con- tain the evidence in haec verba, or by question and answer, unless so ordered on the settlement; but the facts of the case, together with the rulings on the trial, should be stated in a narrative form, except where it is claimed by either party that any par- ticular testimony should be given in haec verba, and the judge or referee who settles the case determines that such testimony should be so given to properly present the case for review (Rule 34). When the case is settled it must be certified by the judge or referee, and it must be ordered to be filed (Rule 35), and it must be filed within ten days after it, is settled (Rule 35). It cannot be filed without an order; and if it is not filed within ten days after it is settled, the opposing party may apply for an order that it be deemed abandoned (Rule 35). MOTIONS FOR A NEW TRIAL. § 453. Motions at Trial Term. (Co. Civ. P. § 999.)— The judge presiding at a trial by a jury may, in his discretion, entertain a motion made upon his minutes at the same term to set aside the verdict or a direction dismissing the complaint and grant a new trial upon exceptions; or because the verdict is for excessive or insufficient damages, or otherwise contrary to the evidence or contrary to law. If an appeal is taken from the order made upon the motion, it must be heard upon a case prepared and settled in the usual manner. This section permits the unsuccessful party on a jury trial, forthwith, at the same term of court, to apply to the presiding judge for a new trial upon the grounds stated. The motion is ordinarily made immediately after the verdict is rendered. It 39^ TRIALS. [CH. XV. is heard upon the present recollection or minutes of the judge as to the testimony and proceedings, or upon the stenogra- pher's minutes, which may be written out for use as the judge's minutes (§ 1007). It is entirely discretionary with the judge whether he will entertain a motion for a new trial made in this way at trial term. He may leave the party to make the motion at Special Term, in the manner hereafter pointed out. A motion for a new trial must always be made by the party who desires to raise the question that the verdict is against the weight of evidence, or that the damages found are insufficient or excessive. If the motion is denied, the moving party may then appeal from the order denying the motion for a new trial, and that will bring up to the General Term upon appeal those particular questions which would otherwise not come up, since there would be no exception upon which they could be argued (100 N. Y. 98). The judge on such a motion has the power to order a new trial upon the ground that there has been a substantial mis- carriage of justice on the whole case; and upon appeal from the order made on such a motion the whole case is likewise brought before the court at General Term upon all the facts and the law, but beyond the General Term no review of the facts in a jury trial can be had (44 State R. 75). The questions which can come before the Court of Appeals from a judgment at circuit are only questions of law. A motion for a new trial is an important step when one in- tends to appeal, because it enables the appellant to argue for a reversal at General Term on the facts as well as on the law, and presents the whole case upon its merits. The unsuccessful party ordinarily makes the motion at the trial term, and it will be denied at once unless the judge feels that the case is one which is close or doubtful, and then he hears argument. The grounds upon which a motion for a new trial can be made at trial term are also available on a motion made at Special Term, and it will be convenient to examine them in that connection. We note, however, as to motions for a new trial at trial term, that such motions can be made only when there has been a verdict, not when the complaint has been dismissed by the court or a nonsuit ordered (25 Hun 280). The motion must be made at the term at which the cause was tried (42 Super. 207), § 454-J MOTION FOR A NEW TRIAL. 399 and it can only be made upon the grounds slated in this sec- tion. The right to make the motion being entirely statutory, the grounds of the motion must be stated when the motion is made and recited in the order, and it is further to be noted that this form of motion at trial term can be made only in the case of a jury trial. § 454. Motion for a new trial at Special Term. (Co. Civ. P. § 1002.) — A motion for a new trial at Special Term may be made either (1) for errors appearing in the proceedings upon the trial, as upon exceptions taken or because the verdict is for excessive or insufficient damages, or contrary to the evidence or contrary to the law, or (2) for matters not appearing in the record, as for irregularities, surprise, and newly discovered evidence. If a party intends to move at Special Term for errors ap- pearing on the record, he must prepare and procure the settle- ment of a case in the manner heretofore pointed out (§ 997 ; see ante, § 452), but when the motion is based upon irregu- larities or surprise it is not necessary to prepare a case (§ 998). The motion may then be made on affidavits. Confining ourselves now to motions made for a new trial at Special Term upon a case, we observe, first, that if the motion is made upon an allegation of error in a finding of fact or rul- ing upon the law made by the judge upon the trial, the motion must be noticed before the expiration of the time within which an appeal can be taken from the judgment (§ 1002), and it can- not be heard at a Special Term held by another judge than the one who presided at the trial, unless that judge is dead or his term has expired, or he is disqualified, or unless he specially directs it to be heard before another judge (§ 1002). The motion may be made after the entry of judgment (46 N. Y. 598), and it may also be made before judgment is entered (123 N. Y. 120). The motion for a new trial upon a case may be made either for errors of law or errors in fact. Errors of law are presented by the exceptions. Such errors may also be urged on a direct appeal from the judgment. The questions which may be pre- sented upon exceptionsare manifold. They cover every direction made by the j udge u pon the trial to which an exception was prop- erly taken, including rulings upon the admissibility of evidence, upon requests to charge, upon directions as to the verdict, or for a 4°0 TRIALS. [CH. XV. nonsuit, and the legal correctness of the portions of the charge excepted to. It is of course impracticable to consider these at length. The motion may also be made for errors in fact, as that the verdict is against evidence, or for excessive or insufficient dam- ages. The rule governing the decision of such a motion, based on the ground that the verdict is against evidence, may be stated in general terms as follows: The verdict will not be dis- turbed if it appears that there was evidence upon which it could be found, provided the preponderance of evidence or its weight was not so strongly against the verdict as to show prejudice, passion, ignorance, or corruption (16 Hun 415; 63 Barb. 21). The rule once was, that a verdict would not be set aside as against evidence if there was some evidence or a scintilla of evi- dence upon which it might be based. That is no longer the rule (103 N. Y. 341). In a recent case the court said: "When the verdict is so decidedly against the weight of evidence that it is clear that the verdict is the result of sympathy, passion, or prejudice, the verdict will be set aside for that reason; and when the verdict is supported only by the testimony of an interested party who is contradicted by the adverse party and two disinterested witnesses upon the material facts in dispute, and the trial judge upon that proof in the exercise of the dis- cretion vested in him sets aside the verdict as against the weight of evidence in such a case, we think this court on appeal ought not to reverse the order." Langlois v. Hayward, 36 State R. 59. See 35 State R. 427. The principles by which, courts are governed upon such applications are stated by Woodruff, J., in McDonald v. Walter (40 N. Y. 553) as follows: "The deliberate conclusion of the jury upon the facts is very rarely interfered with. Neverthe- less, it would be strange, if true, that no instance should occur in which through a misapplication of the law to the facts which they find proved, or through prejudice or passion or mistake, in- justice is done which it became the duty of the court to correct. While the general rule should be preserved, it would not be safe to assert the uncontrollable supremacy of the jury. Both in England and in this country, therefore, the court has always exercised the power of reviewing the evidence on a case made for the purpose, and of granting a new trial where, upon a cool and deliberate examination, the ends of justice seemed to re- §455-] NEW TRIAL ON GROUND OF SURPRISE. 401 quire it. And this is always the plain duty of the court where the verdict is palpably against the law, applied to the facts found.*' When the application for a new trial is based on the claim that the verdict is excessive or inadequate, it is addressed to the discretion of the court (70 N. Y. 587), and this discretion must be exercised in view of the particular circumstances of each case; the verdict will not be set aside as excessive merely because the trial or the appellate court would not have awarded so large a sum as damages (92 N. Y. 219). It is impossible to lay down any general rule which will control in every case, more definite than that stated above, that the ver- dict will not be disturbed unless there is reason to believe that the jury has been misled by passion or prejudice or by some improper influence. A collection of accident cases in which this question was presented will be found in the opinion in Murray v. Hudson Riv. R. Co. (47 Barb. 196) and Copfiins v. JV. Y. C. 6- H. R. R. Co. (48 Hun 300). § 455. New trial on the ground of surprise. — We come now to consider the instances in which a new trial may be granted for matters not appearing upon the record of the trial. These are such, therefore, as must be brought to the attention of the court by evidence outside of the record as by affidavits. They are classified as follows : Motions based on the ground of surprise, newly discovered evidence, misconduct of the jury, and other irregularities occurring at the trial. The Code con- tains no express provisions regulating these motions, except that by §998 it is provided that it is not necessary to make a case for the purpose of moving for a new trial upon an allega- tion of irregularity or surprise ; but when the motion is on the ground of newly discovered evidence, it must be based on a case presenting the evidence on the trial, so that the court may judge whether the newly propounded evidence is such as to justify a new trial (30 State R. 553. See 123 N. Y. 436). When upon the trial counsel find themselves surprised and taken off their guard by evidence as to which they had been misled without their own neglect or that of their client, the proper course to pursue is to at once disclose the situation to the court and ask to have a nonsuit entered. The plaintiff is entitled to the entry of a nonsuit, — that is, a dismissal of his cause, — at any time before the verdict has been rendered, and 26 402 TRIALS. [CH. XV. such a course prevents the operation of the judgment or find- ing as a res adjudicata, and leaves the plaintiff in a position to begin again; but the presiding judge may, to relieve either party from the effect of a surprise, withdraw a juror and so cause a mistrial, the result of which will be that the trial, so far as it has proceeded, will go for naught, and the cause may be brought on for trial at a future time without either party hav- ing suffered any prejudice to their legal rights. Whitney v. Saxe, 18 State R. 1020. But if the counsel does not ask for such relief during the trial, he may still, in a proper case, after the verdict and judgment, move for a new trial on the ground of surprise, but he will then be put to the necessity of explain- ing why he did not disclose his situation at the trial, and if no satisfactory explanation can be offered, and if there is ground for a suspicion that the party took the risk of a favorable verdict, he cannot afterward claim that he was surprised. Seaman v. Koehler, 12 State R. 582; Hurlbert v. Parker, 5 State R. 454; Foster v. Easlon, 19 State R. 447. § 456. New trial for newly discovered evidence. — When since the trial the unsuccessful party has discovered evidence which would in all probability change the result, he may move for a new trial upon this ground. To entitle him to a new trial on this ground, the papers on which the motion is made must show, 1st, that the new evidence has come to his knowledge since the trial; 2d, that it was not owing to a lack of due dili- gence that it did not come sooner; 3d, that it is not cumulative; 4th, that it is of such a nature and so material that it would probably change the result. Roberts v. Johnstown Bank, 38 State R. 563; 29 State R. 818. But the fact that the new evidence is cumulative is not now considered as necessarily fatal if it seems so forcible in its character as likely to change the result. Wilcox Silver Plate Co. v. Barclay, 48 Hun 54; Clegg v. JV. Y. Newspaper Union, 51 Hun 232. § 457. New trial for misconduct of jury and irregulari- ties. — The general principle applicable in this connection has been stated as follows: "It is the policy of the law to watch over the deliberations of the jury and to guard them from all impressions and influences in respect to the issues involved not derived from a trial in open court in the presence of the parties § 458.] MOTION FOR JUDGMENT. 403 and their counsel where ample opportunity is given to object to the admission of any evidence or comments not sanctioned by the law." Mitchell v. Carter, 14 Hun 448. Hence, when the jury obtained a copy of the judge's minutes of the evidence which were incomplete, and they were read by some of the jury, the verdict was set aside [Ibid.). So when a paper not in evidence was taken into the jury room (48 How. Pr. 448); but not if the paper was not read or used by the jury, or had no bearing upon any disputed questions of fact (22 Hun 396); but the judge may in his discretion permit the jury to take into the jury room a paper which is in evidence. A communication addressed to the jury in reference to the evidence by the judge without the knowledge or assent of the parties will be ground for a new trial on the application of the unsuccessful party, even though he does not show that it tended to his injury ( Watertown B . & L. Co. v.Mix, 51 N. Y. 558), but if it appears that the communi- cation was not prejudicial to him and could not have influenced the result, it has been held the motion may be denied (18 Hun 365)- When a juror is guilty of misconduct in conversing with a party or a third person as to the witnesses or their evidence (8 Abb. Pr. 141; 11 State R. 706), or when there is reason to believe that a juror has come under the influence of a party who afterward has the verdict (1 Hill 207), or when in a crimi- nal case a juror drinks intoxicating liquor after the jury retire to deliberate on their verdict (58 Hun 571; but in civil cases see 7 Cow. 562; 1 Hill 207), the verdict will be set aside. It is a general rule, however, that jurors cannot be heard by -affidavit or otherwise to impeach their verdict (60 N. Y. 648; 5 Hill 560), but the affidavits of jurors are competent to maintain the verdict, although inadmissible to impeach it (24 Abb. N. C. 77). § 458. Motion at General Term for judgment— For a new trial. (Co. Civ. P. §§ 1000, 1001.) — The Code provides for a special practice when the case turns upon questions of law as to which the trial judge entertains so serious a doubt as to con- sider it proper that these questions should be determined by the General Term before judgment is given against a party. He may in such a case take the verdict of the jury upon the facts, and suspend the entry of judgment, and direct that the excep- 404 TRIALS. [CH. XV tions taken by the unsuccessful party be heard in the first in- stance at General Term. Such a motion may be made where all the issues have been tried by a jury, or where specified ques- tions of fact have been submitted to the jury and one or more exceptions have been taken on such trial (§ 1000). There is a futher provision which has the same general purpose, but which is applicable under different circumstances. Thus, " where, upon the trial of an issue by a jury, the case presents only ques- tions of law, the judge may direct the jury to render a verdict subject to the opinion of the court " (§ 1185). A direction under this section is proper where the facts are undisputed and the case presents questions of law only (68 N. Y. 314). It is not proper where exceptions have been taken on the trial or where the facts are controverted (69 N. Y. 148 ; 118 N. Y. 231). In such a case there may be a direction under § 1000, that the ex- ceptions be heard in the first instance at General Term. The Code further provides that where the decision or report, rendered upon the trial of an issue of fact by the court, without a jury, or by a referee, directs an interlocutory judgment to be entered; and further proceedings must be taken, before the court, or a judge thereof, or a referee, before a final judgment can be entered; a motion for a new trial, upon one or more exceptions, may be made at the General Term, after the entry of the interlocutory judgment, and before the commencement of the hearing directed therein. The time within which the party must except, for that purpose, to a ruling of law made upon such a trial, by the judge or by the referee, after the close of the testimony, is ten days after service of a copy of the deci- sion or report, and notice of the entry of the interlocutory judg- ment thereupon (§ 1001). CHAPTER XVI. JUDGMENTS. CHAPTER XI., CODE OF CIVIL PROCEDURE. § 459. Final and interlocutory judgments. (Co. Civ. P. §1200.) — Judgments under the Code include what were for- merly known as decrees in equity. \:i interlocutory judgment is an intermediate or incomplete judgment, — where the rights of the parties are settled, but something remains to be done; as when there is an accounting to be had, a question of dam- age to be ascertained, or a reference required to ascertain the amount due. *~ Cambridge Nat. Bank v. Lynch, 76 N. Y. 514; Mc- Keown v. Officer, 127 N. Y. 687. Importance may be attached to the distinction between an interlocutory and final judgment upon the question of appeal; for while an interlocutory judg- ment may be appealed to the General Term, it cannot be reviewed in the Court of Appeals except on an appeal from the final judgment. Victory v. Blood, 93 N. Y. 650; King v. Barnes, 107 N. Y. 645. The question has arisen whether an order annulling or sus- taining a demurrer was an interlocutory or final judgment, and it is held that the order or decision is neither, and that an appeal can be taken only from the judgment entered upon the order (76 N. Y. 514). The distinction between a judgment and an order is, that the former is a decision upon a trial and the latter upon a motion (5 How. Pr. 30). §460. Entry of judgment. (Co. Civ. P. §§ 1202, 1203.) — It is provided that judgment may be entered in term or in vacation (§ 1202). As a matter of practice no attention is paid to the terms of court on the entry of judgment. In an action tried before a judge and jury, the clerk enters (405) 406 JUDGMENTS. [CH. XVI. the judgment on a transcript of the minutes, or clerk's record of the verdict. When the case is tried before a judge or referee, the clerk enters the judgment on the decision signed by the judge or referee; in both cases a. postea, or formal recital of the judgment, is annexed to the judgment roll. Rule 8 provides that judgments can only be entered and docketed in the offices of the clerks of the court within the hours during which by law they are required to be kept open, and at no other time. § 461. Judgment roll : how prepared ; what to contain ; and how endorsed. (Co. Civ. P §§ 1237, 1238, 1239.) — The clerk upon entering final judgment must immediately file the judgment roll ; which must consist, except where special pro- vision is otherwise made by law, of the following papers : the summons ; the pleadings or copies thereof ;" the final judgment and the interlocutory judgment, if any, or copies thereof ; and each paper on file, or a copy thereof, and a copy of each order which in any way involves the merits or necessarily affects the judgment. If judgment is taken by default, the judgment roll must also contain the papers required to be filed upon so taking judgment, or upon making application therefor ; together with any report, decision, or writ of inquiry and return thereto. If judgment is taken after a trial the judgment roll must contain the verdict, report, or decision; each offer, if any, made as pre- scribed in this act; and the exceptions or case then on file (§ 1237). The judgment roll must be prepared and furnished to the clerk by the attorney for the party at whose instance the final judgment is entered ; except that the clerk must attach thereto the necessary original papers on file. But the clerk may at his option make up the entire judgment roll (§ 1238). The clerk must make a minute upon the back of each judg- ment roll filed in his office of the time of filing it, specifying the year, month, day, hour, and minute. A proceeding to enforce or collect a final judgment cannot be taken until the judgment roll is filed (§ 1239). Under the Code system many of the papers in an action are retained by the attorneys for the respective parties. Thus the summons and the pleadings are usually thus retained unless they are required to be filed under § 824. Offers of judgment, judge's orders, and other papers in an action are not neces- § 462.J JUDGMENT BOOK. 407. sarily filed during the course of- .the action; hence the pro- priety of the provision of the Code that the judgment roll shall be prepared by the attorney who enters the judgment. The simplest form of a judgment roll on a jury trial would consist of the summons, pleadings, transcript of the clerk's minutes of the verdict, and the posted. If the judgment is entered by default J:he judgment roll must contain proof of the service of the summons (14 How. Pr. 426), but if the de- fendant has appeared in the action it is not necessary to attach proof of service of the summons to the judgment roll (19 N. Y. 271). The judgment should be signed by the clerk; but if he fails to do so, the omission may be remedied nunc pro tunc (25 N. Y. 489). It would be an irregularity and would not render the judgment void (119 N. Y. 153, 155). And, generally, the provisions of the statute are directory, and a substantial compliance with them is all that is required, and errors and omissions may be corrected by amendment (17 N. Y. 445). It will be observed that the interlocutory proceedings in an action are not proper parts of the judgment roll, unless for some special reason they have to do with the recovery of the judgment. Thus an attachment or an order of arrest or plead- ing which has been superseded by an amended pleading form no proper part of the judgment roll. But when judgment is entered upon a frivolous pleading, the pleading is not stricken out and the judgment roll should contain a copy of the plead- ing overruled. Strong v. Sprout, 53 N. Y. 497. §462. Judgment book. (Co. Civ. P § 1236.) — The clerk must keep among the records of the court a book for the entry of judgment, styled the "judgment book"; each interlocutory or final judgment must be entered in the judgment book and attested by the signature of the clerk; who must note in the margin of the entry the day and year of entering it. It must specify clearly the relief granted or other determination of the action or of the issue (§ 1236). The "judgment book " is a separate and distinct book from the "docket book"; only judgments for a sum of money are docketed (81 N. Y. 182. See below, § 463) ; but all judgments are to be recorded in the judgment book. The delay of the clerk in entering a judgment in the judgment book will not affect its validity (42 Barb. 591). 408 JUDGMENTS. [CH. XVI. § 463. Docketing the judgment. (Co. Civ. P. § 1246.)— The clerk is required to docket the judgment when entered, by entering in the proper docket book, which is arranged alpha- betically according to the names of the judgment debtors, (1), the name of the judgment debtor; (2), the name of the judg- ment creditor ; (3), the sum recovered, in figures ; (4), the time of the judgment; (5), the time when the judgment was docketed in his office; (6), the court in which the judgment was rendered, and if in the Supreme Court, the county where the judgment roll is filed ; (7), the name of the attorney recovering the judg- ment. If there are two or more judgment debtors the entries must be repeated under the initial letter of the surname of each. It will be noted that a judgment cannot be docketed unless it is for the recovery of a sum of money. Sheridan v. Linden, 81 N. Y. 182. The docketing of the judgment is not necessary to its validity. Sheridan v. Andrews, 49 N. Y. 478. The docket- ing of a judgment enables a party who has secured a judgment in a particular court or county to make the judgment also a matter of record in other counties by filing with the clerks of such counties a transcript or minute of the docket. The Code provides (§ 1247) that a clerk with whom a judgment roll is filed, upon a judgment docketed as prescribed, must furnish, to any person applying therefor, one or more transcripts of the docket of the judgment, attested by his signature. A county clerk to whom such transcript is presented, must file it, and docket the judgment in the appropriate docket book, kept in his office. The clerk is made liable to an action for damages for neglect to docket the judgment or to furnish a transcript (§ 1248). By means of the filing of the transcript and docket- ing of judgment in different counties the lien of the judgment upon real estate is created and extended. Whitney v. Townsend, 67 N. Y. 40. § 464. Form of judgment. — The Code is silent as to the form of the judgment. It is not necessary that a judgment should have any caption unless it is actually entered at a term of the court. If a caption is used it should state the term of the court and the name of the presiding judge. The judgment should show accurately all the names of the parties. It should contain recitals of the service of the summons upon all the §4 6 S-J AGAINST WHOM JUDGMENT ENTERED. 409 parties against whom judgment is entered, or their appearance by attorney. If entered by default, it should recite the failure of the party which warrants the entry of judgment. If after trial, it should recite the fact of trial, the term of the court, the verdict or decision as the case may be. The recitals are im- portant, because they are primd facie proof of the facts recited. Maples v. Mackey, 89 N. Y. 146. The recitals in a case where the complaint is dismissed are particularly important if the judgment is to be conclusive. Section 1209 provides that a final judgment dismissing the complaint either before or after a trial rendered in an action hereafter commenced, does not prevent a new action for the same cause of action unless it ex- pressly declares, or it appears by the* judgment roll that it is rendered upon the merits. After the recitals follow the mandatory words, " It is adjudged," etc., according to the particular relief awarded. The distinction between common-law judgments and decrees in equity still exists in substance though not in form. § 465. Against whom judgment may be entered. (Co. Civ. P. §§ 1204, 1205, 1206.) — Under the first of these sections the court has power to award relief to one defendant as against another (Derham v. Lee, 87 N. Y. 599), but it seems that this power is limited to an action in equity {Chapman v. Forbes, 123 N. Y. 532). By the second section cited, the Code has modified the com- mon-law rule that, in an action on an alleged joint contract, the plaintiff must recover against all the defendants, or be de- feated in the action. When a joint liability is set up in the complaint, the court may award judgment against one defend- ant only, if, as a matter of fact, it is made to appear that such one was the only person liable to plaintiff. Stedeker v. Bernard, 102 N. Y. 327. So when the liability is joint and several, as against the maker and endorser of a promissory note (Lomerv. Meeker, 25 N. Y. 361), or against the maker and guarantor (Hier v. Staples, 51 N. Y. 136). In an action for tort the plaintiff may have a verdict against one or more of the defendants, but not for different amounts. Those who are liable are liable jointly, and hence for a common amount, and if the jury should find against defendants for different amounts, the plaintiff may enter judgment against all for the largest amount. Bealv. Finch, 11 N. Y. 128. 4IO JUDGMENTS. [CH. XVI. § 4.66. Extent of relief granted. (Co. Civ. P. § 1207.)— Where there is no answer, the judgment cannot be more favor- able to the plaintiff than that demanded in the complaint. This section protects a defendant who suffers default against the recovery of a judgment different from that of which he was apprised by the claim set up in the complaint. But when issue is joined by an answer, the court may permit the plaintiff to take any judgment consistent with the case made by the complaint and embraced within the issue. This does not mean that if the complaint is framed solely for equitable relief and the case is tried as an equity cause, and the plaintiff's evidence establishes only a legal claim for damages which he has not alleged or claimed, that fhe court can order judgment for such damages {Bradley v. Aldrich, 40 N. Y. 504); that would not be "consistent with the case made by the complaint." But it does mean, that where an equitable cause of action is set out, and a court of equity has acquired jurisdiction, it may grant such relief as is just, and in a proper case award a personal judgment for a sum of money. Valentine v. Richardt, 126 N. Y. 272. The plaintiff must prove the cause of action set out in his complaint, and can recover on no other if objection is taken on the trial. Truesdell v. Sarles, 104 N. Y. 164 ; Soatlvwick v. First Natl. £k., 84 N. Y. 420. But the mere statement of relief asked in the complaint is wholly unimportant after issue. § 467. Authority for the entry of judgment. (Co. Civ. P. §§1203, T228.) — There are certain instances in which the clerk of the court may enter judgment by express authority of the statute, and other instances in which the direction for the judgment must be made by the court or referee. The Code provides generally that judgment may be entered in the first instance pursuant to the direction of the court at a term held by one judge, except where special provision is otherwise made by law (§ 1203). When the trial of all the issues is by the court or a referee, the decision of the court or the report of the referee must direct the judgment to be entered thereupon (§ 1022). When the whole issue is an issue of fact which was tried by a referee, the report stands as a decision of the court, and judgment upon such a report, or upon the decision of the court upon the trial of the whole issue of fact without a jury, may be entered by the clerk as directed therein upon §468.] WHEN WHOLE ISSUE NOT DETERMINED. 411 filing the decision or report (§ 1228). The decision or report is the only authority necessary for entering the judgment. The entry of judgment is the act of the clerk, and he must prepare and enter it, or he may, as he usually does, adopt the form presented by the attorney (97 N. Y. 610). The signature of the judge to the judgment is unnecessary {Ibid.). The proper course is for the court or referee to settle in the decision the form of the judgment to be entered (50 Hun 178). An ex- ception, however, is made in matrimonial actions. In such case the referee to whom the issue is referred must, report the testi- mony and proceedings, and the judgment must be rendered by the court (§ 1229). The decision of the court or the report of a referee upon trial of a demurrer may direct the final or inter- locutory judgment to be entered thereon, and where it directs an interlocutory judgment, it may also in a proper case direct the final judgment to be entered if the part}' in fault fails to com- ply with any of the directions given or terms imposed (§ 1021). Final judgment upon an issue of law, where no issue of fact remains to be tried and final judgment has not been directed as prescribed in § 102 1, above cited, may be entered upon ap- plication tfe the'court, or by the clerk in an action sp'ecified in § 420 (§ 1222). It will thus be seen that in all instances (except in matri- monial actions) where the entire issue of law or fact, or both, is tried by the court without a jury or by a referee, the de- cision of the court or the report of the referee furnishes the authority and direction to the clerk for the entry of judgment. But where the issue in an action has been tried by a jury and a general verdict rendered, the clerk must enter judgment in conformity to the verdict upon the application of the party in whose favor it was rendered, unless a different direction is given by the court or it is otherwise specially prescribed by law (§ 1189). If the jury have rendered a special verdict, judg- ment cannot be taken thereon without application to the court (§§ Il86 > 1233). Judgments upon an offer of judgment under §§738 and 739 may be entered without any order or direction of the court. § 468. When the whole issue is not determined upon one trial. (Co. Civ. P. § 1221.) — Where one or more issues of law and one or more issues of fact arise in the same action, 41- JUDGMENTS. [CH. XVI. and all the issues have been tried, final judgment must be taken upon the whole issue. If an application must be made to the court for judgment upon the issue last tried, the application must be for judgment upon the whole issue, and judgment must be rendered accordingly. If the action is triable by a jury and the issue last tried is tried at a term of the court, the application for judgment upon the whole issue may be enter- tained, in the discretion of the court, at that term, and with or without notice ; if not so entertained it must be heard as a motion. If the issue last tried is tried before a referee, his report will award the proper judgment upon the whole issue, unless the order of reference otherwise prescribes (§ 1221). § 469. Judgment after trial of specific questions of fact. — In an action triable by the court, where one or more specific questions of fact arising upon the issues have been tried by a jury, judgment may be taken upon the application of either party as follows : If all the issues of fact in the action are determined by the findings of the jury, or the remaining issues of fact have been determined by the decision of the court or the report of a referee, an application for judgment upon the whole issue may be made as upon a motion. If one or more issues of fact remain to be tried, judgment may be rendered upon the whole issue at the term of the court where, or by direction of the referee by whom, they are tried (§ 1225). This is the case provided for by § 971 where specific questions of fact arising in an equity suit have been submitted to a jury. If the questions thus submitted to and answered by the jury, together with the facts admitted by the pleadings, cover the whole case so that no further facts need be found for the infor- mation of the court, motion may at once be made for judg- ment. Upon such motion both parties have a right to be heard, and the court may order judgment upon the case as then made, or it may set aside the findings of the jury or use some of them, and it may allow either party to give further evidence. But if the findings of the jury, together with the facts admitted in the pleadings, do not cover the whole case and other issues remain to be tried or other facts requisite for equitable relief remain to be proved, then the case must be regularly brought to a hearing before the court, when it may or may not adopt the findings of the jury, and other facts may be proved ; and §§470-473-1 0N MOTION FOR NEW TRIAL. — ON VERDICT. 413 in such case the court must make findings of fact and law, to which exceptions may be taken by either party desiring to appeal. Earl, J., in Hammond v. Morgan, 101 N. Y. 179 ; 97 N. Y. 1. § 470. Judgment after trial of specific questions of fact by referee. (Co. Civ. P. § 1226.) — Where a reference has been made to report upon one or more specific questions of fact arising upon the issue, and the remaining issues have been tried, judgment must be taken upon the application of either party as prescribed in § 1221 (see ante, §468). § 471. Judgment upon motion for new trial at General Term. (Co. Civ. P. § 1227.) — When a motion for a new trial, made in the first instance at a General Term, is denied, judg- ment may be taken as if the motion for a new trial had not been made, after the expiration of four days from the entry of the order and the service upon the attorney for the adverse party of a copy thereof and notice of the entry, but not before (see ante, § 458). § 472. Judgment on verdict subject to the opinion of court. (Co. Civ. P. § 1234.) — A motion for judgment upon a ver- dict subject to the opinion of the court may be made by either party, and must be heard and decided at the General Term. This is the case referred to in Co. Civ. P. § 1185, when the court has directed a verdict subject to the opinion of the court. In order to obtain a judgment in such a case a motion must be made for judgment at General Term, a note of issue must be filed, and the party moving must prepare a printed case, and the General Term will order judgment for one party or the other (69 N. Y. 148). § 473- Judgment on affirmance of interlocutory judg- ment. (Co. Civ. P. § 1224.) — When an order or judgment is wholly or partly affirmed upon an appeal to the General Term, and no issue of fact remains to be tried, the General Term may in its discretion render final judgment unless it permits the appellant to amend or plead over. It is said (2 Rumsey's Prac, p. 617) that this section was intended to apply to a case where an interlocutory judgment 414 JUDGMENTS. [CH. XVI. rendered upon a demurrer had been affirmed upon appeal and no issue of fact remains to be disposed of. § 474 Final judgment after interlocutory judgment. (Co. Civ. P. § 1231.) — In an action triable by the court an interlocutory judgment rendered upon a default in appearing or pleading, or pursuant to the direction contained in a decision or report, may state the substance of the final judgment to which the party will be entitled. It may also direct that the final judgment be settled by a judge or a referee. In that case final judgment shall not be entered until a settlement thereof, subscribed by the judge or referee, is filed. Where an interloc- utory judgment awards costs they may be awarded generally without specifying the amount thereof. Where the final judg- ment is directed to be settled and the costs have not been taxed when the settlement thereof is filed, a blank for the amount of the costs must be left in the settlement ; and the costs must be taxed and the blank filled up accordingly by the clerk when the final judgment is entered. The clerk has no power to enter an interlocutory judgment except after application has been made to the court and direction in that behalf given (50 Hun 178). ' JUDGMENT BY DEFAULT. § 475. How judgment by default may be entered. (Co. Civ. P. § 12 12.) — The method of entry of judgment by default is not in all cases the same. In some instances the clerk may enter the judgment and in some it can be entered only upon ap- plication to the court. The cases in which judgment may be entered by the clerk are limited to common-law actions for a sum certain, or which may be computed. These are the actions mentioned in § 420. In such an action if the complaint is verified, or if a notice stating the sum for which judgment will be taken was served with the summons, the plaintiff upon filing the summons and complaint, and notice and proof by affidavit that the defendant has not appeared, or if he has appeared, that he has made default in pleading, the clerk must enter up judgment for the amount claimed in the complaint or notice. If the complaint is unverified the clerk must assess the amount due; he must compute the amount due on an instrument for the payment of § 47 6 -] WHEN JUDGMENT ENTERED BY DEFAULT. 415 money, and upon the other causes of action mentioned in § 420, he must ascertain the amount due by examining the plaintiff, or from other competent proof. In all other cases except those mentioned in § 420, judgment can be entered only upon application to the court. This ap- plies to all equity suits, all actions for tort, and to many actions for breach of contract, and to cases where the summons only has been served. In such cases if the summons has been served without complaint, and the defendant has failed to appear within the time required, or if the complaint has been served and the defendant has made default in pleading, an affidavit should be prepared making proof of the default, and if the defendant has appeared, or if he has served the demand men- tioned in sub. 2 of § 1219, he is entitled to eight days' notice of the time and place of application to the court (§ 1219). In the Supreme Court, the application may be made at any Special Term in the judicial district, or except in the first dis- trict in the adjoining county; but where a reference or a writ of inquiry is awarded, it must be executed in the county in which the action is triable unless the court shall otherwise order (Rule 26). When the application is made to the court, and the proper papers showing the default and service of notice necessary are submitted, the court may, in all cases other than actions to recover damages for a personal injury or an injury to prop- erty, take the proof with or without a jury if one is present in court, or it may order a reference or a writ_of_inquiry; but in the two instances mentioned, a writ of inquiry must be ordered. Such a writ is a direction to the sheriff of the county to assess the damages with a. jury. This is done in this county at the regular holdings of the sheriff's jury on Monday of each week in court time, at 4 p.m., but the writ may be directed to be exe- cuted at circuit, and then the presiding judge directs the pro- ceedings. § 476. Proceedings when judgment entered by default without application to the court. (Co. Civ. P. § 1212.) — When the complaint sets forth one or more causes of action, each consisting of the breach of an express contract to pay absolutely or upon a contingency a sum or sums of money fixed by the terms of the contract or capable of being ascer- 416 JUDGMENTS. [CH. XVI. tained therefrom by computation only, or an express or im- plied contract to pay money received or disbursed, or the value of property delivered, or of services rendered by, to, or for the use of the defendant or a third person, which are the causes of action mentioned in § 420, if the defendant has made default in appearing the plaintiff must file proof of the service of the summons and of a copy of the complaint or the notice, and also proof by affidavit that the defendant has not appeared, and thereupon the clerk may enter final judgment in his favor. If the defendant has seasonably appeared, but has made default in pleading, the plaintiff must file proof of the summons and of the appearance, or of the appearance only, and also proof by affidavit of the default, and the clerk may then enter judg- ment in his favor. The meaning of this section is, that in common-law actions where the sum due is certain, or is capable of being rendered certain by mere computation, the clerk may enter the judg- ment upon being presented with the summons and verified complaint, or proof of service and proof of default. In such a case the defendant, even if he has appeared, is not entitled to notice of the entry of judgment. It may be entered ex parte (6 How. Pr. 271). The clerk must enter the judgment for the sum for which the verified complaint demands judgment, or at the plaintiff's option for a smaller sum, and if a computation of interest is necessary it may be made by the clerk (g 12 13; 85 N. Y. 253). If the complaint was not verified then the clerk must assess the damages, and in such a case if the defendant has appeared he is entitled to five days' notice of the time and place of the assessment by the clerk (§ 1219). The clerk assesses the damages by computing the amount due upon an instrument for the payment of money only, the non-payment of which constitutes the cause of action stated in the complaint; and by ascertaining by the examination of the plaintiff upon oath or by other competent proof the amount due to him on any other cause of action stated in the complaint. If the instru- ment just referred to is lost, so that it cannot be produced to the clerk, he must take proof of its loss and of its contents. Either party may require the clerk to reduce to writing and file the assessment and the oral proof, if any, taken thereupon (§ i«3)- §§ 477. 47 8 -] APPLICATION FOR JUDGMENT BY DEFAULT. 417 § 477. Application to the court for judgment by default, when necessary. (Co. Civ. P. § 1214.)— Where the summons was personally served upon the defendant within the State, and he has made default in appearing, or where the defendant has appeared and has made default in pleading, and the case is not one where the clerk can enter final judgment as prescribed in §§ 1212, 1213, the plaintiff must apply to the court for judg- ment. Upon the application he must file, if the default was in appearance, proof of the service of the summons ; or if the default was in the pleading, proof of appearance ; and also if a copy of the complaint was demanded, proof of service thereof upon the defendant's attorney, and in either case proof by affi- da\it of the default which entitles him to judgment. The default having occurred in a case where an application must be made to the court, the party applying for the judg- ment prepares an affidavit showing that the default has occur- red; he then prepares a notice that he will apply for judgment at a Special Term of the court. The notice must be served on all the defendants who have appeared or who have served a written demand as provided in subdivision 2 of § 1219. The application may be made at any Special Term of the Supreme Court in the district embracing the county in which the action is triable, or except in the first district in any adjoining county (Rule 26), It may also be made at a Circuit Court in the county in which the action is triable. If no notice is necessary the applicant will prepare an order for the assessment of damages or for the taking proof of the facts stated in the complaint in the manner he deems proper, and upon presenta- tion of the papers above recited he may apply for such order ex parte. § 478. Proceedings on application to the court for judg- ment by default. (Co. Civ. P. § 1215.) — The court must, upon application made as above provided, render the judgment to which the plaintiff is entitled. It may without a jury, or with a jury, if one is present in court, make a computation or assess- ment, or take an account or proof of a fact for the purpose of enabling it to render the judgment or to carry it into effect ; or it may in its discretion direct a reference or a writ of inquiry for either purpose ; except that where an action is brought to recover damages for a personal injury or an injury to property, 27 418 JUDGMENTS. [CH. XVI. the damages must be ascertained by means of a writ of inquiry, Where a reference or writ of inquiry is directed the court may direct that the report or inquisition be returned to the court for its further action ; or it may in its discretion, except where special provision is otherwise made by law, omit that direction, in which case final judgment may be entered by the clerk in accordance with the report of the referee, or for the damages^ ascertained by the inquisition, without any further application. It will be observed that the proofs may be taken either by the court alone, or with a jury, or by a referee, or by a writ of inquiry, but that where the action is brought to recover dam- ages for a personal injury, or an injury to property, the dam- ages must be assessed by means of a writ of inquiry.' The practice on taking judgment by default is simple and manifestly just. When the defendant is advised, by the service of a sworn complaint, that the demand against him is for a specific sum of money, and he fails to defend, he is deemed to have admitted the liability for the sum demanded : but when he is served with a summons only, or with a complaint demand- ing unliquidated damages or equitable relief, his failure to defend is not an admission that the plaintiff is entitled to all he has chosen to ask. It is simply an admission that the plain- tiff is entitled to such relief as the facts properly alleged entitle him to (78 N. Y. 239, 243). Hence the plaintiff must apply to the court and show the relief to which he is entitled. "The very requirement of an application to the court implies a judi- cial determination of the proper judgment to be rendered, which is not at all controlled by the legal conclusions of the pleader" (Finch, J., 85 N. Y. 253, 256). A writ of inquiry is a direction to the sheriff of the county to assess the damages with a jury (Graham's Prac. 794). The writ, however, is sometimes executed by a judge at circuit where difficult questions of law are involved or the facts are important (Ibid., p. 795). The practice on the execution of a writ of inquiry will be found laid down fully in Graham's Practice, p. 794 ct seq. § 479. Judgment in case of service not personal and in cases of attachment. (Co. Civ. P. §§1216, 1217.) — In all cases where the summons was not personally served, — that is, where it is served by publication (§438), or by substituted § 480.] JUDGMENT AGAINST INFANT. 419 service (§ 435), — an application for judgment upon default must be made to the court, and proof of the facts set forth in the complaint must be made. If the defendant is a non- resident or a foreign corporation the court must require the plaintiff, or his agent or attorney, to be examined on oath respecting any payments to the plaintiff, or to any one for his use on account of his demand, and must render the judgment to which he is entitled, and the court in its discretion may require the plaintiff to give an undertaking to make restitution as ordered by the court in case the defend- ant is permitted to come in and defend the action and is suc- cessful. Where the defendant is a non-resident or a foreign corporation, judgment cannot be rendered for a sum of money only, except in an action specified in § 635, — that is, in an action in which an attachment might issue, (1) upon proof that a warrant of attachment granted in the action has been levied upon property of the defendant, and (2) a description of the property so attached, verified by affidavit with a state- ment of the value thereof according to the inventory, and (3) an undertaking to make restitution as above provided. It will be observed that these sections distinguish between judgments on service of summons other than personal as between residents and non-residents. The principles under- lying this distinction are considered ante, § 131. In the case of a resident of the State a judgment may be rendered by default, after service other than personal, upon any cause of action set up in the complaint, and there is no direction as to the character of the proof to be presented on the application for judgment (14 Civ. P. 45) ; but when the defendant is a non-resident or a foreign corporation, judgment for a sum of money only can be rendered, after such service, only when an attachment has actually been levied on defend- ant's property in this State, and then only upon the special proofs required as to the cause of action, and as to the prop- erty attached, and its value, and the filing of an undertaking. § 480. When judgment cannot be taken against infant. (Co. Civ. P. § 1218.)— A judgment by default shall not be taken against an infant defendant until twenty days have expired since the appointment of a guardian ad litem for him. 420 JUDGMENTS. [CH. XVI. LIEN OF THE JUDGMENT. § 481. How the lien is acquired and when it attaches. (Co. Civ. P. §§ 1250, 1251.) — The lien is acquired by the docket- ing of the judgment, and it lasts for a period of ten years after the filing of the judgment roll. There is no lien until the judg- ment roll is filed (4 Duer 342), and it continues for ten years from that event, provided the judgment be docketed. The lien attaches to real property and chattels real of the debtor situ- ated within the county where the judgment is docketed. The judgment may be docketed in several counties by filing a tran- script of the judgment with the clerk of each county. In that event the judgment becomes a lien in each of the counties in which the judgment debtor has lands. The judgment creditor has a mere general lien, and not a specific one, upon real estate, and hence differs from a mortgagee, who can sue for waste which injures his security. Lanning v. Carpenter, 48 N. Y. 409. The lien attaches not only to the real property which the debtor has when the docket is made, but to any lands he may acquire within the county during the ten years following. Judgments attach to the property owned by a debtor accord- ing to the priority of the docket; but if, while a person has several judgments docketed against him, he acquires lands, all the judgments then standing against, him attach to the prop- erty at the same moment, and neither will have priority of the other. Goetz v. Mott, 15 Civ. Pro. 11. Where a debtor has con- veyed away his real estate in fraud of creditors, who afterward docket judgment against him and proceed to attack the con- veyance in equity, the creditors will be entitled to priorities in the order in which the judgments are docketed, irrespective of the priority in which the creditors proceeded in equity. N. Y. Life Ins. Co. v. Mayer, 12 State R. 119. The judgment is not a lien upon lands of which the debtor has a mere naked title held in trust for others (Loimsbury v. Purdy, 18 N. Y. 515), or where lands are conveyed through a third party as a mere conduit — the purpose not being to vest the title in such third party, but in the ultimate grantee, as in the case of conveyance by a hus- band to a wife through a third party. O'Donnell v. Kerr, 50 How. Pr. 334. In the case of a purchase-money mortgage (§ 1254) the lien of the mortgage is superior to the lien of a previous judgment. §§482-484-] SUSPENSION OF LIEN. 42! After the lapse of ten years the judgment, though it ceases to be a lien, does not cease to be operative. It may be enforced against the real estate of the debtor as provided in § 1252. § 482. Suspension of lien. (Co. Civ. P. §§ 1256, 1257, 1258.) — The object of these sections is to obviate the hardship which would arise, if, where the payment of the judgment had been secured, it were imperatively to remain also a lien upon the debtor's real estate, thus in effect giving the creditor double security. By suspending the lien as provided by these sections, the debtor is enabled to dispose of or mortgage his real estate freed from the encumbrance of the judgment. The order suspending the lien is obtained on notice of motion, which must be given to the judgment creditor and also to the sureties on the appeal bond (13 Abb. N. C. 481). When the judgment has been marked, " Secured on appeal by order of the court," as provided in these sections, one who takes a mortgage upon the property in good faith in payment of an antecedent debt obtains a preference over the judgment ( Union Dime Savings Inst. v. Duryca, 67 N. Y. 84), and where the order is afterward vacated restoring the lien of the judgment nuiu pro tunc, such an order will not defeat the priority of a purchaser or mortgagee in good faith. Harmon v. Hope, 87 N. Y. 10. § 483. When and how lien restored. (Co. Civ. P. § 1259.) — When a judgment, the lien of which has been suspended as provided above, is affirmed on appeal, or the appeal is dis- missed, the clerk must at the request of the judgment creditor docket the judgment anew in the order of priority of the new docket, and must write upon the new docket the words, " Lien restored by redocket," and provision is also made for suspending and restoring the lien in other counties by means of filing a tran- script of the original docket upon which the judgment is marked suspended or redocketed. The lien of the judgment is restored by the redocket for the unexpired period as if the order had not been made, but with like effect only as against judgment creditors, purchasers, and mortgagees in good faith, as if the judgment had then been first docketed. §484. Satisfaction of judgment. (Co. Civ. P. § 1260.) — The docket of a judgment is cancelled and discharged by the Y 422 JUDGMENTS. [CH. XVI. clerk in whose office the judgment roll is filed, upon filing with him a satisfaction-piece, which may be executed by the judgment creditor or his legal representatives, or within two years after the filing of the judgment roll, by the attorney of record of the party, unless his authority so to do has been revoked; or if an assignment of the judgment has been filed, by the owner of record or his personal representative; or by the attorney in fact of the person authorized to execute it, other than the attorney of record; but in that event the power of attorney must be filed, unless it is recorded in the proper office for the registry of deeds. The satisfaction-piece must be acknowledged before the clerk or his deputy, or it must be acknowledged or proved and certified in like manner as a deed to entitle it to record. An attorney of record has no implied authority to satisfy a judgment without payment, and if he does so the court will set the satisfaction aside (45 N. Y. 665). But when the attorney acknowledges satisfaction, the presumption is that he is acting within his powers, and the clerk must recognize his authority, unless he has notice of the want of power (119 N. Y. 55). It is made the duty of the person entitled to enforce the judgment to execute a satisfaction-piece in a proper case (§§ 1261, 1262), and when the judgment is satisfied in whole or in part by the sheriff upon execution, upon return of the exe- cution the clerk must make the proper entry upon the docket (§§ 1265, 1266), and the docket of the judgment must be can- celled when the judgment has been reversed, vacated, or satis- fied of record (§ 1267). JUDGMENTS BY CONFESSION. § 485. When and by whom judgment may be confessed. (Co. Civ. P. § 1273.) — The former practice, when a party de- sired to permit another to enter judgment against him forth- with, was by warrant of attorney (Graham's Prac. 767). A warrant of attorney was a written authority to an attorney to receive a declaration in an action, and thereupon to confess the same and suffer judgment to pass by default. This practice is in substance retained in some States. The Code provides that a judgment by confession may be entered, without action, either for money due or to become due, or to secure a person § 486.] STATEMENT FOR CONFESSION. 423 against contingent liability in behalf of the defendant, or both. A judgment can be confessed only for a sum of money, but it is not essential that the sum shall have become due, or that the liability has become fixed. A judgment may be confessed to secure future advances of money, or to secure the payment of commercial paper or endorsements of commercial paper agreed to be made (55 N. Y. 150 ; 6 N. Y. 147 ; 16 N. Y. 563), but, as we shall see, such judgment cannot be enforced by execution until the liability has matured. A married woman may confess a judgment as provided in this section. An infant, or person of unsound mind, or an habitual drunkard cannot confess a judgment (2 Rumsey's Prac. 629, citing 14 Barb. 488; 2 Paige 422), but these decisions do not go further than to declare the confession voidable, not absolutely void. A corporation may confess a judgment, but not if acting in contemplation of insolvency. Kingsley v. First Nat. Bank, 31 Hun 329. A joint debtor may confess a judg- ment for a joint debt due or to become due, but when all the joint debtors do not unite in the confession, the judg- ment must be entered and enforced against those only who confessed it; and it is not a bar to an action against all the joint debtors on the same demand (§ 1278). § 486. Statement for confession. (Co. Civ. P. §1274.) — A written statement must be made and signed by the defend- ant. It must state: (1). The sum for which judgment may be entered. (2). It must state concisely the facts out of which the debt arose, or which constitute the ground of liability. What will satisfy the requirement of a concise statement of facts? In Wood v. Mitchell (117 N. Y. 439), the statement was as follows: "This confession of judgment is for a debt now justly due to the said plaintiff from me, arising from the fol- lowing facts, viz.: The said sum of $5,000 is a balance due to said plaintiff of various sums of money loaned and advanced by him to me, the said defendant, during a period from about July 1, 1886, to date, and includes interest upon such loans and advances to this date." This was held to be too indefinite. The court said it must be supposed that it was the purpose of the legislature that the statement of facts should be so definite that the affiant would be exposed to punishment for perjury in case of misstatement. But it is not necessary to set out the 424 JUDGMENTS. [CH. XVI. details with the particularity of a bill of particulars. Har- risons. Gibbons, 71 N. Y. 58. Where the confession is upon a promissory note, it is not enough to state that it was given for value received. The statement must show the actual consideration. If the confession is for borrowed money, it must appear that the money was borrowed by the debtor (5 Civ. Pro. 415; 37 Hun 135J, and the amount of the loan must be definitely stated (41 Hun 76). In general, the statement must set out the facts from which the indebtedness to the plaintiff arose with sufficient particu- larity to identify the transaction and to show a definite lia- bility for the sum admitted (see cases reviewed in Harrison v. Gibbons, 71 N. Y. 58). " The object of the statute in requiring a detailed statement of the facts and circumstances out of which the indebtedness arose, is to inform other creditors of the dealings and transactions which had taken place between the parties to the judgment, that they might ascertain by proper inquiry that the indebtedness was real and not fictitious, and satisfy themselves, if such was the fact, that the judgment was based upon a good consideration and valid in law." Flour City Nat. Bank v. Doty, 41 Hun 76, 78. When the judgment was confessed for a note of the debtors not yet due, held by a bank, and upon which the creditor was an endorser, it was held that no cause of action existed and the confession was bad (21 Civ. P. 166) ; but a confession may be given for a debt not yet due, though execution can in such case be issued and enforced only as provided in § 1277 {/bid.). §487. How to be executed. (Co. Civ. P. §1274.)— The statement must be signed by the debtor, and verified, to the effect that the matters of fact therein set forth are true. The court has power to allow an amendment to a confession of judgment, and this it will do in furtherance of justice in a proper case. Mitchell v. Va?i Buren, 27 N. Y. 300. § 488. When and how judgment to be entered. (Co. Civ. P. §§ 1275, 1276.) — Judgment may be entered by filing the statement of confession, at any time within three years after it is verified, with a county clerk or the clerk of a superior city court ; or if for an amount not exceeding $2,000, exclusive of interest, with the clerk of the city court ; and thereupon the §§489,49°-] EXECUTION WHERE JUDGMENT NOT ALL DUE. 425 clerk must enter up a judgment for the amount confessed, with fifteen dollars costs and disbursements. If the confession is filed with the county clerk the judgment must be entered in the Supreme Court ; if with the clerk of another court, the judgment must be entered in the court of which he is clerk. But a judgment shall not be entered up on such a statement after the defendant's death (§1275). The clerk is required to make up a judgment roll, consisting of the confession and the judgment, and the judgment may be docketed and enforced against property as a judgment in an action (§1276). The judgment thus entered has the force and effect of a judg- ment in an action and cannot be impeached collaterally (81 N. Y. 239). § 489. Execution where the judgment is not all due. (Co. Civ. P. §1277.) — Where the debt for which the judgment is rendered is not all due, execution may be issued upon the judgment for the collection of the sum which has become due. The execution must be in the form prescribed by law for an execution upon a judgment for the full amount recovered, but the person whose name is subscribed to it must endorse there- upon a direction to the sheriff to collect only the sum due, stat- ing the amount thereof, and the costs of the judgment. Not- withstanding the issuing and collection of such an execution, the judgment shall remain as security for the sum or sums to become due after the execution is issued. When a further sum becomes due an execution may in like manner be issued for the collection thereof, and successive executions may be issued as further sums become due. If the execution issued does not conform to the requirements of the statute, and the endorsement made upon it directs the sheriff to collect more than the amount actually due, a subse- quent execution creditor may by motion attack the execution for invalidity, so far as it directs the sheriff to collect anything in excess of the sum presently due. J affray v. Soussmann, 17 Civ. Pro. 1. § 490. Vacating the judgment.— A peculiar thing about a judgment by confession, is, that in certain cases third persons who are prejudiced by it may move to vacate the judgment as improperly entered. As a rule, a person who believes himself 426 JUDGMENTS. [CH. XVI. aggrieved by what another has done, either by a legal proceed- ing to which he is not a party or by any other act, must seek his redress by bringing an action to establish his right to relief by a trial, but in this instance the judgment being obtained without judicial cognizance, and as by executive rather than by judicial action, the court, in the exercise of the power which it has over its own records, will, at the instance of a person showing his right to such relief, vacate the judgment on motion. A person who may move is one who has a lien upon or interest in property which is encumbered by the apparent judgment. Miller v. Earle, 24 N. Y. no. Such persons as a bona fide pur- chaser, a subsequent grantee or mortgagee, or a junior judg- ment creditor. Utter v. McLean, 17 Civ. Pro. 150 ; 1 17 N. Y. 439. A general creditor who has no lien cannot move to set aside the judgment. Jacobstein v. Abrams, 41 Hun 272. A subsequent judgment creditor may bring an action to set aside the confessed judgment as fraudulent or invalid (17 N. Y. 9), or he may proceed by motion (17 Civ. Pro. 150). The motion is to be made in the action in which the judg- ment has been entered (17 N. Y. 9). It must be made on notice, and may be granted for irregularity or defect in the statement, as required by the statute, or upon the ground of fraud (117 N. Y. 439 ; 17 Civ. Pro. 150, and cases). It is discretionary with the court whether it will proceed by motion or whether it will require the moving party to proceed by action. y SUBMISSION OF A CONTROVERSY UPON FACTS ADMITTED. § 491. Controversy, how submitted without process. (Co. Civ. P. § 1279.) — The Code permits parties, when they can agree upon the facts out of which their conflicting legal claims arise, to submit the matter in dispute to the adjudication of the court upon a statement of the facts. The question of difference must be one which might be the subject of an action, and must be submitted to a court having jurisdiction of the subject- matter. The submission must be made by persons of full age, and when it appears that an infant is a party the proceeding will be dismissed (9 Abb. Pr. 33 ; 4 Lans. 213). All the neces- sary parties to the determination of the controversy must join §§ 49 2 . 493-J HOW SUBMISSION MADE. 427 in the submission (7 State R. 685). The case submitted should present only questions of law. When all the facts upon which the controversy depends, and which are necessary to give ground for a conclusion of law, are not stated, the court cannot pronounce judgment and the proceeding will be dismissed (46 N. Y. 612), and the court cannot go beyond the facts stated, or alter the submission or extend its scope or operation (7 Civ. Pro. 245 ; 21 State R. 715). The court may permit an addi- tional statement to be made without prejudice to the original statement (§ 1281). The case must be accompanied with the affidavit of one of the parties to the effect that the controversy is real; and that the submission is made in good faith for the purpose of determining the rights of the parties, and it must be acknowl- edged or proved and certified in like manner as a deed to be recorded in the county where it is filed. When the question submitted is abstract and a judgment cannot be rendered thereon, the proceeding will be dismissed (92 N. Y. 622), and the relief that can be awarded upon the facts must be such as the Code permits the court to grant upon such a submission (104 N. Y. 525; 19 Civ. Pro. 262). § 492. How the submission is made, and proceedings thereon. (Co. Civ. P. §§1280, 1281.) — The case, submission, and affidavit must be filed in the office of the clerk of the court to which the submission is made. The filing is a presentation of the submission, and thenceforth the controversy becomes an action subject to the general provisions respecting actions, except that an order of arrest, an injunction, or a warrant of attachment cannot be granted therein. The costs are discre- tionary. The action must be tried by the court upon the case alone; and the case, submission, affidavit, and a certified copy of the judgment, and of any order or paper necessary affecting the judgment, constitute the judgment roll. In the Supreme Court or a Superior City Court the action is tried at the Gen- eral Term. VACATING AND SETTING ASIDE JUDGMENTS. § 493. When judgment may be set aside for irregularity. (Co. Civ. P. § 1282.) — By referring back to § 724 it will be seen that by that section the court is given power in its discretion, 428 JUDGMENTS. [CH. XVI. and upon such terms as justice requires, at anytime within one year after notice thereof, to relieve a party from a judgment order or other proceeding taken against him through his mis- take, inadvertence, surprise, or excusable neglect. That is the section under which a party may move to be relieved from judgments taken against him by his default or neglect. Motions under that section are addressed to the favor of the court. By the section we are now examining a judgment may be set aside for irregularity at any time within one year after the judgment roll is filed. The irregularity here meant is something other than an error in the rulings or decision of the judge. Such errors are to be corrected by exception and appeal. The irregularities here referred to are mistakes and omissions occurring in the course of the procedure. Such irregularities may be mere technical defects which the court will either ignore or amend, or they may be of such a character as to affect the substance, and then the judgment must be set aside unless it can be amended. Thus, if the judgment entered by the clerk after a trial by jury is for a larger sum than that found by the verdict, the remedy would be by motion to vacate the judgment. Corn Ex. Bk. v. Blye, 119 N. Y. 417. That would manifestly be a substantial irregularity. So, if a judgment was entered against a man who had died before ver- dict (§ 765), the remedy would not be by appeal, but by motion under this section. The fact of the death would not appear upon the record of the trial. It would be necessary to make it appear by affidavits on a motion to vacate the judgment. § 494. Motion to set aside judgment for error in fact. (Co. Civ. P. § 1283.) — This section provides for a motion to set aside a final judgment rendered in a court of record for error in fact not arising upon the trial. This section does not refer to irregularities in the procedure as to which provision is made by the preceding section, or to facts which were determined or presumably determined upon the trial, which are to be cor- rected by appeal or motion for new trial, but it relates to facts in respect to which an error appears not within the issue, as, for instance, infancy or coverture. Thus, if judgment be taken by default against an infant defendant where no guardian ad litem has been appointed (20 Hun 534; 98 N Y. 435), that would be ground for relief under this section. §§ 495-497-] MOTION TO VACATE JUDGMENT. 429 § 495. Motion to vacate a judgment for fraud or as void. — When a judgment is entered by a court which was without jurisdiction of the party proceeded against or of the subject- matter, or when the judgment was obtained by fraud practiced upon the court, the court in which the judgment was given has power to vacate it on motion apart from the provisions of the statute. Thus, when there has been no service of the sum- mons and no appearance, although the judgment is void, an application may be made by the party against which it was given to set it aside (59 N. Y. 629; 5 Robt. 610), and when the judgment is obtained by fraud or collusion, such a motion may likewise be made (43 Hun 586; 41 N. Y. 358J. But the court may decline to entertain a motion in such a case and leave the party to set up the defence when effort is made to enforce the judgment, or to an affirmative action to vacate it (41 N. Y. 358; 51 N. Y. 630). The principles here stated arise from the inherent power which every court of record is supposed to have over its own records to modify, amend, and vacate them independent of the special authority conferred by statute (100 N. Y. 206, where grave doubt is thrown upon this proposition), but the court has no power on motion to set aside a regular judgment which has not been paid (75 N. Y. 495). § 496. Within what time the motion must be made. — When the motion is made under §72410 be relieved from a judgment taken by mistake, surprise, or neglect, the motion must be made within one year after notice of the judgment. When it is made under § 1282 for irregularity, it must be made within one year after the filing of the judgment roll. When it is made under § 1283 for error in fact not arising on the trial, it must be made within two years after the filing of the judg- ment roll (§ 1290), except that the time is extended by disabili- ties of infancy, insanity, and imprisonment under § 1291. When the motion is made for fraud or want of jurisdiction, it is not within any of the limitations of the statute (43 Hun 586; 66 N. Y 618; 98 N. Y. 434). § 497. Motion— By whom made. (Co. Civ. P. §§ 1283, 1284, 1285, 1286.) — The motion to set aside a judgment for error in fact not arising upon the trial may be made by the 43° JUDGMENTS. [CH. XVI. party against whom it is rendered; or if an execution has not been issued thereon, and the judgment has not been wholly or partly satisfied or enforced, by the party in whose favor it is rendered (§1283); and such a motion may be made after the death of a party by those succeeding him in interest, as pre- scribed by § 1284, and in some instances by a third party when the judgment affects real estate in which he has an interest (§1285). A motion to vacate a judgment for irregularity can ordinarily be made only by a party and not by a stranger (10 Bosw. 606); but when the defect is substantial, it may be set aside on motion of any person interested in impeaching it (16 How. Pr. 203). The statute provides to whom and how notice of the motion to vacate must be given (§§ 1287, 1288, 1289). CHAPTER XVII. APPEALS. CHAPTER XII., CODE OF CIVIL PROCEDURE. § 498. General. — A writ of error in civil actions or special proceedings has been abolished (§1293), and a review of the proceedings in an action is had under the Code only by appeal. At common law the procedure was by writ of error and by appeal. A writ of error was a new suit iaken out or begun in the appellate court; hence if the defendant was the appellant, he became the plaintiff in the writ of error, since it was he who prosecuted the new proceeding. The names of the parties were reversed in the appellate court when defendant appealed, and this you will still find to be the case in the Supreme Court of the United States, where appeals are prose- cuted by writ of error. An appeal in chancery was not a new suit, but was a proceeding in the original suit. Under the Code, in all actions the remedy is by appeal and the names of the parties remain unchanged. We shall confine our attention to appeals in actions or special proceedings brought in the Supreme Court. The procedure in this State provides in general for two appeals. After trial at Circuit or Special Term the unsuccess- ful party may in every case, by taking proper steps, appeal to the General Term and obtain a review of the proceedings by that court consisting of three judges. If unsuccessful at the General Term, he may, if the amount involved exceeds $500, appeal from any judgment to the Court of Appeals consisting of seven judges. The appellant in the case supposed may not be able to review all the matters in the Court of Appeals which were open to the review of the General Term, since the Gen- eral Term has a somewhat wider range in the grounds of (43i) 43 2 APPEALS. [CH. XVII. reversal open to it than the Court of Appeals, as we shall see when we come to examine more particularly into the appeals to each of these courts. § 499. Who may appeal. (Co. Civ. P. § 1294.) — A party aggrieved may appeal where an appeal may be taken except when the judgment or order of which he complains was made upon his default. We emphasize only two points : First, the person appealing must have suffered some wrong by the judg- ment or order. It is not necessary that the judgment or order should have been given against him. It may have been in his favor and yet not for all that he was entitled to, and so he is aggrieved, but if he sustains no injury from the judgment or order complained of he may not appeal. Secondly, he cannot appeal from a judgment or order made on his default. If he desires to preserve his right he must contend for it when the contest is open to him in the first instance. His remedy after a default is to move to open the default and to be permitted to come in and prosecute or defend (54 N. Y. 25). The party appeal- ing is called the appellant and the adverse party the respondent (§ IZ 9S)- The Code contains provision for the substitution of parties on appeal in case of death (§§ 1297, 1298, 1299). The title of the action is not changed, except to substitute the name of the appellate court, and the name of the county in which the venue was laid may be omitted (§ 1295). § 500. How taken. — An appeal is taken by the service of a written notice of appeal. The notice specifies the judgment or order appealed from or the special part thereof (§ 1300). The notice is addressed to the adverse party and ro the clerk of the court in which the judgment or order appealed from is entered. It must be signed by the attorney for the appellant. The grounds of appeal need not be stated. It is enough to indicate the judgment or order appealed from by the date of its entry, and to designate the court to which the appeal is taken. The notice of appeal must be served upon the clerk of the court in.which the judgment or order appealed from is entered, and also upon the attorney for the adverse party, and it must be served within the time limited for the appeal in the particular case. Neither a court nor a judge can extend either directly or indirectly the time to appeal (§ 784). The time to § SOI.] ' APPEALS FROM FINAL JUDGMENTS. 433 serve the notice of appeal begins to run in every instance ex- cept one (an appeal to the Court of Appeals from a final judg- ment) from the service of the judgment or order and notice of entry or filing. The party undertaking to limit the time to appeal is heki to strict practice. The notice must be exact. It must state when and in what office the order or judgment was filed, and the copy order or judgment served must be correct, and must show that the original has been filed or entered as required by law. The notice of appeal is served on the clerk by leaving it at his office, and upon the opposing at- torney in the manner heretofore pointed out for the service of papers (see ante, § 321). The Code provides how the notice is to be served in case the attorney is dead (§ 1302). A notice of appeal which is defective may in some instances be amended (§ i3°3)- APPEALS TO THE GENERAL TERM. §501. Appeals from final judgments. (Co. Civ. P. § 1346.) — An appeal may be taken to the General Term of the Supreme Court or of a Superior City Court from a final judgment rendered in the same court, as follows: 1. When the judgment was rendered upon a trial by a referee or by the court without a jury, the appeal may be taken upon questions of law or upon the facts or upon both. 2. Where the judgment was rendered upon the verdict of a jury, the appeal may be taken upon questions of law. Here it will be observed that a distinction is taken between the questions brought up for review upon an appeal from a final judgment depending upon the mode of trial of the action. If the action was tried by a referee or by the court with- out a jury, both questions of law and questions of fact are brought up for review. Questions of law are raised by the exceptions, but the General Term has the power upon appeal from judgments to review errors in the court below, even though no exception was taken (120 N. Y. 1, 5 ; 30 Hun 282, 288 ; 49 Hun 400). Ordinarily, however, the General Term will not examine questions not raised by an exception (10 Hun 130). The General Term may review the facts upon an appeal from a final judgment after a trial without a jury, but the find- ings of fact will not be reviewed when they are made on con- 28 434 APPEALS. [CH. XVTI. flicting evidence, unless the finding is clearly against the weight of evidence (53 How. Pr. 342 ; 17 Hun 138), and the general rule is that findings of fact upon conflicting evidence will not be reversed or overruled (33 Hun 489, 493). Appeals to the General Term from final judgments after a trial by the court with a jury stand on a different footing. The General Term cannot review a case upon the facts on appeal from the judgment. When the cause is tried by a jury, the only mode in which the facts can be brought before the General Term is by an appeal from an order granting or refusing a new trial (64 N. Y. 236; 7 Civ. Pro. 188). § 502. Appeals from orders. (Co. Civ. P. § 1347 ) — An appeal can be taken to the General Term from an order made in an action upon notice in a variety of instances which are specified in this section. They are in general, (1), when the order grants, refuses, continues, or modifies a provisional remedy; (2), when it grants or refuses a new trial except in the one instance mentioned in the second subdivision; (3), when it involves some part of the merits; (4), when it affects a substantial right; (5), when it in effect determines a statutory provision of the State to be unconstitutional; and the determi- nation appears from the reasons given for the decision there- upon or is necessarily implied in the decision. It will be observed that only orders made on notice are ap- pealable. Hence ex parte orders cannot be reviewed by appeal. Thus an appeal cannot be taken from an injunction order granted ex parte. The remedy is by motion on notice to vacate the injunction order, and from an order denying that motion an appeal may be taken (19 Civ. Pro. 91; 37 State R. 802). It is perhaps impossible to state with precision just what orders are reviewable as involving some part of the merits or affecting a substantial right. Almost every order made in the course of an action may be reviewed by the General Term. There are few questions of practice which, under the existing decisions relating to that subject, may not be presented to the General Term for consideration (67 Barb. 280; 14 Hun 491; 29 N. Y. 418). The fact that the order appealed from rests in the discretion of the court does not take away the right of appeal (15 Hun 481; 41 Hun 581). In this respect there is a marked distinction between the right to appeal to the General Term §§ 5°3> 504-J APPEAL FROM ORDER. 435 from an order and the right to appeal to the Court of Appeals. The Court of Appeals is limited in the review of orders to such as do not involve any question of discretion (§ 190, subd. 2; 58 N. Y. 215). But although the General Term may review a discretionary order, such an order will not be reversed unless the discretion has been abused or there is a plain case of its improper exercise (20 Hun 23 ; 12 Civ. Pro. 64) ; but orders that are merely formal and discretionary, and when there has been no abuse of discretion, will not be reviewed on appeal. An appeal from an order granting or refusing a new trial is, as we have before pointed out {ante, § 453), the mode of re- viewing on appeal the facts on a trial by the court with a jury, and an appeal may be taken from an order granting or refusing a new trial upon any of the grounds heretofore con- sidered {ante, § 454 ; 46 N. Y. 598), and an appeal from an order denying a motion for a new trial may be made, though no appeal is taken from the judgment (123 N. Y. 120). § 503. Appeal from order made by a judge out of court or in a special proceeding. (Co. Civ. P. §§ 1348, 1356, 1357.)— An appeal may also be taken to the General Term from an order made in an action upon notice by a judge out of court, when an appeal might have been taken if the order had been made by the court (§ 1348). As we have seen, in the first judi- cial district a motion which elsewhere must be made in court may be made to a judge out of court, except for a new trial on the merits (§ 770). An appeal under this section will lie from an order made on such a motion with the same effect as though it had been made in court. The Code also provides for the review by the General Term of orders affecting a substantial right made in a special pro- ceeding (§§ 1356, 1357). § 504. How and when the appeal is taken. — The appeal is taken by serving upon the attorney for the adverse party, and upon the clerk, with whom the judgment or order appealed from is entered, a written notice to the effect that the appel- lant appeals from the judgment or order, or from a specified part thereof (§ 1300). An appeal to the General Term must be taken within thirty days after service, upon the attorney for 43^ APPEALS. [CH. XVII. the appellant, of a copy of the judgment or order appealed from, and a written notice of the entry thereof (§ 1351). The thirty days will not begin to run unless there has been a strict compliance with the requirements limiting the time, and it is said that so much do the courts favor the right of appeal that they have gone to great length in upholding tech- nical objections to the sufficiency of the proceedings limiting the time (60 Hun 473). In the case cited the copy of the judg- ment served lacked the attestation of the clerk, and the notice of entry did not specify the place of entry to be the office of the clerk of the city and county of New York, but merely stated that the judgment was entered with the clerk of the Supreme Court, and it was held that these papers did not meet the requirements of the statute, and were not sufficient to limit the time to appeal (see 60 N. Y. 112 ; 76 N. Y. 325 ; 119 N. Y. 153). The notice of appeal is served upon the attorney in the mode heretofore pointed out for the service of papers (ante, § 321). It is served on the clerk by filing it in his office. Every party who has an interest in sustaining the judgment should be served with the notice of appeal (2 Lans. 106). If the attorney for the adverse party is dead, or if he has been removed, or if, for any reason, service of the notice of appeal cannot with due diligence be made within the State, service may be made upon the respondent, and if the respondent cannot, with due dil- igence, be served within the State, the notice may be served as directed by a judge of the court (§ 1302). When the appellant seasonably and in good faith serves the notice of appeal upon the clerk, or upon the adverse party or his attorney, but omits, through mistake, inadvertence, or excusable neglect, to serve it upon the other, or to do any other act necessary to perfect the appeal or to stay the execu- tion of the judgment or order appealed from, the court in or to which the appeal is taken, upon proof by affidavit of the facts, may in its discretion permit the omission to be supplied, or an amendment to be made, upon such terms as justice requires (§ 1303). § 505. Staying proceedings on the judgment or order appealed from. (Co. Civ. P. § 1352.) — Security is not required to perfect the appeal ; but, except where it is otherwise spe- § 5o6.] PROCEEDINGS BY APPELLANT. 437 cially prescribed by law, the appeal does not stay the execution of the judgment or order appealed from, unless the court in or from which the appeal is taken, or a judge thereof, makes an order directing such stay ; such an order may be made, or may from time to time be modified, upon such terms as to security or otherwise as justice requires (§1351). Upon an appeal from a final judgment the appellant may give the secu- rity required to perfect an appeal to the Court of Appeals from a judgment of the same amount or to the same effect, and to stay the execution thereof. In that case the execution of the judgment appealed from is stayed, as upon an appeal to the Court of Appeals, and subject to the same conditions (§ 1352). If security is required to stay proceedings on an order appealed from, the provisions regarding security on appeal to the Court of Appeals apply (§ 135 1). If then a stay of proceedings is desired on an appeal to the General Term from a judgment, it may be obtained by giving the security to be given as directed in the case of appeals from a judgment to the Court of Appeals or by an order. If a stay is desired on an appeal from an order, an application must be made to the court for an order directing such stay ; and if the order provides for the giving of security by appellant, the security must be given as in the case of appeals to the Court of Appeals. The sections governing the giving of security on appeals to the Court of Appeals are §§1326 to 1335, which are considered under the succeeding subdivision. A stay of proceedings may be made at the trial, or after the trial, by any judge ex parte (§ 775). A stay by order is obtained upon affidavits setting out the fact that the appeal has been taken, and the situation of the case, and the facts rendering the stay necessary. The order may be made ex parte, although it will ordinarily be made only on notice or order to show cause, with a preliminary stay. The terms upon which the stay in such case will be granted are discretionary (12 Hun 81 ; 24 Hun 320). Upon an appeal to the General Term from a judgment a stay is obtainable absolutely by the giving of the security as provided on appeal to the Court of Appeals. § 506. Proceedings by appellant before argument. (Co. Civ. P. § 1353.) — As we have seen, when a party intends to appeal from a judgment rendered after the trial of an issue of 43 8 APPEALS. [CH. XVII. fact, he must make a case and procure the same to be settled and signed by the judge or referee by or before whom the action was tried (§997. See ante, § 452). The rule (Rule 32) provides that the proposed case must be served within ten days after the trial if the trial is before a jury, or within ten days after notice of the decision of a motion for a new trial if such motion be made and be not decided at the time of trial, or within ten days after notice of the entry of judgment. You will observe that while a party has thirty days after notice of entry of judgment within which to appeal, he has but ten days within which to make and serve a proposed case. But the time to make a case may be extended by order, and such an order ma}' be, and frequently is, made at the trial on applica- tion of the unsuccessful party. An appeal from a final judgment must be heard upon a certi- fied copy of the notice of appeal, of the judgment roll, and of the case or notice of exceptions, if any, filed as prescribed by law or the general rules of practice, after the entry of the judg- ment, and either before or after the appeal is taken. An appeal from an interlocutory judgment or from an order must be heard upon a certified copy of the notice of appeal and of the papers before the court or the judge upon the hearing of the demurrer, application for judgment, or motion, as the case requires (§1353). In making up the papers for the hearing of the appeal, where the appeal is from a judgment after the trial of an issue of fact, or from an order granting or refusing a new trial on the judge's minutes, the first step is the preparation of a case and pro- curing it to be settled and signed. There must then be procured certified copies of the notice of appeal, of the judgment roll, and of the case. A proper certificate as required by this section is indispensable. Without it the court will not hear the appeal (40 Hun 545). There must be prefixed to the papers above specified a statement showing the time of the commencement of the suit, and of the service of the respective pleadings; the names of the original parties in full; the change of parties, if any has taken place pending the suit; and there shall be added also the papers required by the Code, the opinion of the court below, or an affidavit that no opinion in writing was given, or, if given, that a copy could not be procured (Rule 41). When the appeal is from a judgment on the trial of an issue § 5°7-J THE HEARING. 439 of law, or from the report of a referee who has found the facts, and they are not disputed, it is not necessary to prepare a case. The appeal in such a case can be heard upon the judgment roll (85N.Y. 353). When the appeal is from an order, it is necessary to obtain certified copies of all the papers on which it was made and which are recited in the order appealed from. The appeal is brought to a hearing by the service of notice of argument eight days before the term, under the general pro- vision respecting time (§ 780). And eight days before the first day of the term the appellant must deliver to the attorney for the adverse party three printed copies of the papers (Rule 41), when the appeal is an enumerated motion (which designation includes an appeal from a judgment or order granting or refus- ing a new trial, — see Rule 38). When the appeal is a non- enumerated motion which includes other appeals from orders, three printed copies of the papers must be delivered to the respondent's counsel at least four days before the commence- ment of the term (Rule 41). The rules of court prescribe the manner in which the papers shall be printed (Rule 42). The printing of the papers can only be dispensed with by an order of court (7 Robt. 45). In the first department five printed copies of the papers and of the points must be filed by the appellant, for the use of the court, with the clerk of the General Term at least eight days before the commencement of the term (Rule 41). In other departments these papers must be filed with the clerk at the opening of the argument, and at that time each party is required to hand to his adversary three printed copies of his points (Rule 41). Upon neglect to file and serve the printed papers as required by the rules, a motion may be made by the respondent that the appeal be stricken from the calendar and the judgment be rendered in his favor (Rule 41). § 507. The hearing. — It is provided by the rules of court that at the hearing of causes at a General or Special Term not more than one counsel shall be heard on each side, and then not more than one hour each, except when the court shall other- wise order. On appeals from orders and on non-enumerated motions, but one counsel on each side shall be heard, and not more than half an hour each, unless the court shall otherwise 44° APPEALS. [CH. XVII. order (Rule 46). In the first department, on appeals from an order, not more than one counsel shall be heard on each side, and then not more than fifteen minutes each, except when the court shall otherwise order. § 508. Judgment or order on appeal. (Co. Civ. P § 1317.) — Upon an appeal from a judgment or an order the court, or the General Term to which the appeal is taken, may reverse or affirm, wholly or partly, or may modify the judgment or order appealed from, and each interlocutory judgment or intermediate order which it is authorized to review, as specified in the notice of appeal, and as to any or all the parties, and it may, if necessary or proper, grant a new trial or hearing. A judgment affirming wholly or partly a judgment from which an appeal has been taken shall not expressly and in terms award the respondent a sum of money or other relief which was awarded to him by the judgment so affirmed. In other words, the General Term judgment or order on affirmance does not repeat the judgment or order of the court below, so making two judgments or orders for substantially the same thing, but it simply directs that the judgment or order of the court be- low be affirmed in whole or in part, so far as it is affirmed. APPEALS TO THE COURT OF APPEALS. § 509. Constitution of the Court of Appeals. — This court is constituted by article vi., section 2 of the Constitution, and is composed of a chief-justice and six associate judges, who hold their office for fourteen years. Five members form a quorum, and the concurrence of four is necessary to a decision. By amendment to section 6, article vi., Nov. 8, 1888, it was provided that whenever the accumulation of causes on the calendar is such that the public interests require a more speedy disposal thereof, the Governor may designate seven justices of the Supreme Court to act as associate judges, for the time being, of the Court of Appeals, and to form a second division of the court. Under this amendment, a second division of the court was organized, and began its sessions March 5, 1889, and continued to sit until October 1, 1892. This constitutional amendment will be found at the beginning of volume 116 of the New York Reports. It is to be remembered that the Court of Appeals is an inde- § 510.] JURISDICTION OF COURT OF APPEALS. 441 pendent tribunal. After a cause has been removed into it by appeal, the court below has no jurisdiction, and can take no steps in the action. § 510. Jurisdiction of the Court of Appeals. (Co. Civ. P. §§ 190, 191.) — The Court of Appeals has no original, but only appellate jurisdiction. It can review only determinations made (1) at a General Term (2) by the Supreme Court or by a Superior City Court, and it can do this only in the cases speci- fied, which are: 1st. Where a final judgment has been rendered in an action commenced in either of these courts or brought there from another court. 2d. Where an order has been made affecting a substantial right, and not resting in discretion, which either (1) in effect determines the action and prevents a final judgment, (2) dis- continues the action, (3) grants or refuses a new trial, (4) strikes out a pleading or part of a pleading, or (5) decides an interlocutory application, or a question of practice, or (6) de- termines a statutory provision of the State to be unconstitu- tional. 3d. When a final order affecting a substantial right has been made in a special proceeding, or upon a summary application after judgment. 4th. When an interlocutory judgment has been entered on the decision of a demurrer, provided the appeal be taken within sixty days after notice, and in case the General Term certifies that, in its opinion, the question arising therein is of sufficient importance to render a decision of the Court of Appeals desirable before proceeding further. This jurisdiction is limited by § 191 in three respects: 1st. An appeal cannot be taken from an order granting a new trial on a case or exceptions unless the appellant stipulates for judgment absolute in case of defeat. 2d. An appeal cannot be taken from a judgment of a justice's court, and the inferior courts named, unless the court below allows the appeal. 3d. An appeal cannot be taken from a judgment or from an order granting or refusing a new trial, except in an action affecting real property, if the matter in controversy, excluding costs, is less than $300, unless the court below allows the appeal 442 APPEALS. [CH. XVII. on the ground that a question of law is involved which ought to be reviewed by the Court of Appeals. § 511. How the right of appeal is limited by the amount involved. (Co. Civ. P. § 191.) — This section provides that if an appeal is taken by the plaintiff from a judgment rendered in an action not founded upon a contract, the sum for which the complaint demands judgment, or, if the action is to recover one or more chattels, the value of the chattels, as stated in the complaint, is deemed to be the amount of the matter in con- troversy within the last subdivision of the section, unless the defendant has interposed a counterclaim, in which case the counterclaim must be included in determining the amount in controversy. The result of the decisions as to the limit of appeal to the Court of Appeals by amount may be thus stated: (1). Whenever there is a recovery for plaintiff, defendant's right to appeal is determined by the amount of the judgment, exclusive of costs and interest on the judgment. If that amount does not exceed $500, defendant cannot appeal (67 N. Y. 199; 104 N. Y. 674). (2). When there is judgment for defendant, the plaintiff may appeal in actions founded on contract if the complaint demands judgment exceeding $500, or in an action to recover a chattel if the value of the chattel stated in the complaint exceeds that amount, or in actions of tort when the amount demanded in the complaint exceeds $500, and in other cases when the amount in controversy exceeds $500. The amount in con- troversy is not determined by the demand in the complaint except in the cases named. In other cases it will be deter- mined by the court on looking into the evidence and proceed- ings on the trial (ro8 N. Y. 518), or the facts may be shown on motion to dismiss (62 N. Y. 238). When the plaintiff recovers a sum less than $500, and appeals because of the insufficiency of the judgment, it would seem that the amount of the recovery is not the amount in contro- versy. See Schenck v. Marx, 125 N. Y. 703; s. c. 34 State R. 607. (3). When the defendant sets up a counterclaim, and both the affirmative claim of plaintiff and the affirmative claim of defendant are litigated and determined at the General Term, then it seems that the aggregate of the amounts found ad- §§ 5 I2 > 5 1 3-J REVIEW OF ACTUAL DETERMINATION. 443 versely to the appellants will constitute the sum in controversy {Crawford v. West Side Bk., 92 N. Y. 631) ; but if one of the claims is admitted, then the amount of the adverse claim only is the sum in controversy {Blake v. Krone, 128 N. Y. 64) ; but the cases do not seem to be harmonious (see 2 Rumsey, p. 697). (4). The right to appeal as limited by amount, is the amount in controversy at General Term and not at the trial (72 N. Y. 122). (5). Leave to appeal will be granted only when the questions involved are novel and important, or affect public interests, as where a large, number of cases are dependent upon the one to be appealed (100 N. Y. 98). §512. Review of an actual determination. — The language of the Code limits the jurisdiction of the Court of Appeals to a review of an "actual determination made at a General Term." Hence the Court of Appeals cannot consider a question raised in the case for the first time in that court (44 N. Y. 415; 54 N. Y. 142), nor can an appeal be taken from an affirmance by default at the General Term (83 N. Y. 611). §513. Appeal from a final and interlocutory judgment. (Co. Civ. P. § 190.) — Upon an appeal from a final judgment the Court of Appeals has jurisdiction to review an interlocutory judgment or intermediate order involving the merits and nec- essarily affecting the final judgment, but such interlocutory judgment or immediate order must be specified in the notice of appeal (§§190, 1301, 1316). Every final judgment of the General Term, subject to the limitations already stated, may be taken by appeal to the Court of Appeals, but no direct appeal lies to the Court of Appeals from an interlocutory judgment (Tilton v. Vail, 117 N. Y. 520), except where such a judgment has been entered on the decision of a demurrer, and then only as provided by the fourth subdivision of § 190. But a party may appeal from an interlocutory judgment to the General Term (§ 1349), and by § 1001 provision is made for the making of a motion to the Gen- eral Term for a new trial on exceptions after the entry of an interlocutory judgment, and from the denial of that motion an appeal will lie to the Court of Appeals (117 N. Y. 520). Upon an appeal to the Court of Appeals from a final judg- 444 APPEALS. [CH. XVII. ment, only questions of law raised by exceptions taken during the progress of the trial can be reviewed in that court (129 N. Y. 634; 121 N. Y. 57). § 514. Appeals from orders. — That a party may appeal to the Court of Appeals from an order, the order must have been an actual determination made at a General Term of the Supreme Court, or of either of the Superior City Courts, and it must affect a substantial right, and not rest in discretion, and must either in effect determine the action and prevent a final judgment or discontinue the action, or grant or refuse a new trial, or strike out a pleading or part of a pleading, or decide an interlocutory application or question of practice, or determine a statutory provision of the State to be unconstitu- tional, when the determination appears from the reasons given for the decision or is necessarily implied in the decision (§ 190). It will be noted that it is not enough that the order affects a substantial right; it must not rest in discretion. If the order is discretionary, it is not reviewable (53 N. Y. 322). Orders which are discretionary may often involve a substantial right. Indeed it may readily be perceived that an order which is purely discretionary, and rests solely in the favor of the court, may in some instances absolutely determine the result of the controversy between the parties, yet such an order is not appealable to the Court of Appeals. An order, to be appeal- able to that court, must not only affect a substantial right, but it must also be a matter of legal right, — that is, the right which the appellant claims has been disregarded either in making or refusing to make the order, must be a right depending upon a question of law. We have heretofore noticed some instances of the application of this doctrine, as in the case of orders vacating or refusing to vacate attachments (see ante, § 269), or injunctions (see ante, § 250). So an order adjudging a party in contempt, and prescribing a punishment, affects a substantial right, and does not rest in discretion (47 N. Y. 41 ; 90 N. Y. 402) ; so where an order awarding costs is made in a case not authorized by statute (94 N. Y. 287), or an order is made referring a non-referable action to a referee (66 N. Y. 452), in these, and in a great variety of other cases in which a legal right is denied or an order is made in violation of a legal right, the order is appealable to the §§ SIS. 5 l6 -] ORDER REFUSING NEW TRIAL. 445 Court of Appeals, but the order must come within one of the six clauses named in the second subdivision of § 190. Thus, it mast either in effect determine the action and prevent a final judgment, or discontinue the action, or grant or refuse a new trial, or strike out a pleading or a part of a pleading, or decide an interlocutory application or a question of practice, or deter- mine a statutory provision of the State to be unconstitutional. Of these we shall confine our attention only to the practice in the case of granting or refusing a new trial. § 515. Appeal from an order refusing a new trial. — An appeal to the Court of Appeals from an order refusing a new trial, made upon the judge's minutes or on a case and excep- tions, does not present the questions of fact in the case for review in that court. The Court of Appeals can review only questions of law raised by exceptions, except in the special instances provided for by § 1338, and this is so even though the notice of appeal states that the order denying the motion for a new trial will be brought up for review (121 N. Y. 57). Upon an appeal to the Court of Appeals from an order refusing a new trial, only the questions which would come up on an appeal from the judgment can be considered (121 N. Y. 57, 64). § 516. Appeal from order granting a new trial. — An appeal cannot be taken from an order granting a new trial on a case and exceptions, unless the notice of appeal contains an assent on the part of the appellant that if the order is affirmed judgment shall be rendered against the appellant (§ 191, subd. 1). We shall understand the effect of this provision more clearly by bearing in mind the distinction between the powers of the court at General Term in reviewing questions of fact, and the powers of the Court of Appeals. The former tribunal may review such questions, and the latter may not, except in special instances. When, therefore, there has been an appeal to the General Term from an order denying a motion for a new trial, on the ground that the verdict is against evidence, the ques- tions of fact are before the General Term, and if that court orders a new trial, it may be that its decision was made upon the questions of fact. If, then, an appeal is taken from the 446 APPEALS. [CH. XVII. order of the General Term to the Court of Appeals, that court must necessarily affirm the order of the General Term, because they may not review the question of fact which may have deter- mined the decision of the General Term. The only method of avoiding this inevitable result in such a case is to make it appear that the decision of the General Term was made only upon questions of law, and this can be done only by obtaining from the General Term a statement to that effect, which must be inserted in the order appealed from. The rule is stated clearly in a recent case: "Where an order of the General Term granting a new trial in an action tried before a jury, and pre- senting a conflict of evidence, may have been made upon the facts, although the record does not show that it was, it cannot be reviewed upon appeal to this court, because it is impossible to say, from an inspection of the record, that the court in mak- ing the order did not direct a new trial, in the exercise of its discretion to do so, upon a review of the facts [citing cases]. In such a case, even if it conclusively appears that the decision of the General Term was based on questions of law only, the order is not appealable to this court unless it also appears that that court passed upon the facts unfavorably to the appellant, because it might result in depriving the party against whom the judgment at circuit was rendered, of the review by the General Term of the facts to which the law entitles him " [citing cases]. Williams v. D. L. &r W. R.R. Co., 127 N. Y. 643. See Pharis v. Gere, 107 N. Y. 231. Where exceptions have been taken and a motion for a new trial has been made upon the minutes or at Special Term, and it appears from the order at General Term that a new trial was denied there, upon the facts, and granted only upon the excep- tions, so that questions of law only are involved, an appeal lies to the Court of Appeals. Pharis v. Gere, 107 N. Y. 231; Harris v. Burdett, 73 N. Y. 136. As we have seen, an appeal cannot be taken from an order granting a new trial on a case or exceptions unless the notice of appeal contains an assent on the part of the appellant, that if the order is affirmed, judgment absolute shall be rendered against the appellant. If then the appellant is unsuccessful in the Court of Appeals, judgment may be entered on the stipu- lation absolutely in favor of the respondent for the judgment to which he was entitled at the trial court. §§ 5 l 7-$ l 9-\ WHEN APPEAL MUST BE TAKEN. 447 § 517. When the appeal must be taken. (Co. Civ. P. § 1325.) — An appeal to the Court of Appeals from a final judg- ment must be taken within one year after final judgment is entered upon the determination of the General Term of the court below and the judgment roll filed. An appeal to the Court of Appeals from an order must be taken within sixty days after service, upon the attorney for the appellant, of a copy of the order appealed from, and a written notice of the entry thereof. There is a distinction between a final judgment and an order as to the time from which the right to appeal to the Court of Appeals begins to run. In the former case the time is limited by the entry of the judgment and the filing of the judgment roll; no notice to the adverse party is needed (17 St. R 91). But in order to fix the limit of time to appeal from an order, notice of the entry of the order must be served. The appeal is taken by serving a notice of appeal in the manner hereto- fore stated (see ante, § 500). § 518. Appeal— How perfected. (Co. Civ. P. § 1326.)— To render a notice of appeal to the Court of Appeals effectual for any purpose except in a case where it is specially prescribed by law that security is not necessary to perfect the appeal, the appellant must give an undertaking to the effect that he will pay all costs and damages which may be awarded against him on the appeal, not exceeding five hundred dollars. The appeal is perfected when such an undertaking is given, and a copy thereof, with notice of filing thereof, is served as pre- scribed in this title. The requirements of this section apply to an appeal from an order as well as to an appeal from a judgment (67 N. Y. 581), and unless the security is given in either case, the appeal is ineffectual, and may be dismissed on motion (82 N. Y. 610). But the court may permit the omission to give the undertak- ing to be supplied (§1308; 15 State R. 199). § 519. Stay of proceedings pending appeal. — The Code provides the method by which proceedings upon judgments or orders appealed from can be stayed pending the appeal. When the appeal is from a judgment for a sum of money, or from a judgment or order directing the payment of a sum 448 APPEALS. [CH. XVII. of money, the stay is obtained by giving an undertak- ing to pay the sum recovered or directed to be paid by the judgment or order, or the part as to which it is affirmed (§ 1327)- When the appeal is from a judgment or order directing the assignment or delivery of a document or of personal property, it does not stay the execution of the judgment or order until the thing directed to be assigned or delivered is brought into the court below or placed in the custody of an officer or receiver designated by that court (§ 1328), or the appellant gives a written undertaking, in a sum fixed by the court below, to the effect that the appellant will obey the direction of the appellate court upon the appeal (§ 1329). An appeal from a judgment for the recovery of a chattel is stayed by giving the undertaking just referred to (§ 1329). An appeal from a judgment or order directing the execution of a conveyance or other instrument does not stay the execu- tion of the judgment or order until the instrument is executed and deposited with the clerk with whom the judgment or order is entered, to abide the direction of the appellate court (§ 133°)- If the appeal is taken from a judgment which entitles the respondent to the immediate possession of real property, or from a judgment or order directing the sale or the delivery of possession of real property, it does not stay the execution of the judgment or order until the appellant gives a written under- taking to the effect that he will not, while in possession of the property, commit, or suffer to be committed, any waste thereon; and that if the judgment or order is affirmed, or the appeal is dismissed, he will pay the value of the use and occupation of the property, or the part thereof as to which the j udgment or order is affirmed, from the time of taking the appeal until the delivery of the possession thereof, pursuant to the judgment or order, not exceeding a specified sum, fixed by a judge of the court below. But if the judgment directs a foreclosure and sale of real property mortgaged, an undertaking is sufficient to stay the execution of the judgment, which is to the effect that if the judgment is affirmed or the appeal is dismissed, the appel- lant will pay any deficiency which may occur upon the sale in discharging the sum to pay which the sale is directed, with interest and the costs and all expenses chargeable against the §§ 520, 521.] FORM OF THE UNDERTAKING. 449 proceeds of the sale, not exceeding a specified sum, fixed by a judge of the court below (§ 1331). § 520. Form of the undertaking. (Co. Civ. P. §§ 1332, 1334.) — An undertaking on appeal may be in any form which expresses the intent of the parties with sufficient clearness to enable the court to understand its meaning, and which is a substantial compliance with the requirements of the Code. Mc- Elroy v. Mumford, 128 N. Y. 303. If the appeal is from a judg- ment or order affirming a judgment or order, the undertaking must be to the same effect as though the appeal were also from the original judgment or order (§ 1332). Thus, if the General Term judgment affirms a judgment for money, and gives a further judgment for the costs of the appeal to the General Term upon appeal to the Court of Appeals from the General Term judgment of affirmance, the undertaking must be to the effect that the appellant will pay the original judgment, as well as the judgment at the General Term (§ 1332; 63 Hun 201; 128 N. Y. 303). If the intention to secure the original judgment appears from the undertaking, although that judgment is not expressly recited, the obligation to pay the original judgment may be enforced against the sureties on the undertaking (128 N. Y. 303). The undertaking must be executed by at least two sureties, and must specify the residence of each surety therein (§ 1334). The appellant cannot be one of the two sureties (63 How. Pr. 201). When an undertaking to perfect the appeal (see ante, § 519), and also to stay proceedings, are to be given, they may be joined in one instrument, or in different instruments, at the option of appellant (§ 1334). A copy of the undertaking, with a notice showing where it is filed, must be served on the attor- ney for the adverse party with the notice of appeal, or before the expiration of the time of appeal (§ 1334). The undertak- ing must be filed with the clerk with whom the judgment or order appealed from is entered (§ 1307). § 521. Exception to sureties — Justification. (Co. Civ. P. § 1335.) — It is not necessary that the undertaking be ap- proved, but the attorney for the respondent may, within ten days after service of a copy of the undertaking with notice of 29 459 APPEALS. [CH. XVII. the filing thereof, serve upon the attorney for the appellant a written notice that he excepts to the sufficiency of the sureties. And thereupon the sureties must justify as provided by this section. If they so justify, the undertaking is approved. If they fail to justify, the effect is the same as if the undertaking had not been given. § 522. Deposit in lieu of undertaking. (Co. Civ. P. § 1306.) — In place of giving an undertaking on appeal, the ap- pellant may deposit with the clerk with whom the judgment or order appealed from is entered, a sum of money equal to the amount for which the undertaking is required to be given. The deposit has the same effect as filing the undertaking, and notice that it has been made has the same effect as notice of the filing and service of a copy of the undertaking. The court wherein the appeal is pending may direct the mode in which the money shall be kept and disposed of during the pendency or after the determination of the appeal. §523. New undertaking. (Co. Civ. P. § 1308.) — If the sure- ties upon the undertaking become insolvent, or if it appears that their circumstances have become so precarious that there is reason to apprehend that the undertaking is not sufficient for the security of the respondent, the court may require the appellant to file a new undertaking, and if he neglects to do so, the appeal may be dismissed, or the judgment or order may be executed as though no undertaking had been given. If the cause has been taken to the Court of Appeals by perfecting an appeal to that court, the motion for a new undertaking must be made in that court (109 N. Y. 646). Cases in which the court has directed the giving of a new undertaking under this section are Mahon v. Noon (99 N. Y. 625) and Collins v. Ball (31 Hun 187). If the surety on the undertaking swears falsely as to his sufficiency, the court may dismiss the appeal, or grant the appellant leave to give a new undertaking (27 Hun 536). § 524. Effect of giving the undertaking and taking steps necessary to stay proceedings. (Co. Civ. P. §§ 1310, 131 1.) ■ — When the appeal has been perfected, and the other acts requisite to be done to stay the execution of the judgment or order have been performed, the appeal stays all proceedings to § S 2 5-J THE RETURN. 45 [ enforce the judgment or order appealed from; but the court may cause perishable property to be sold pursuant to the judg- ment or order, and the proceeds must be paid into court to abide the result of the action. If a levy has been made under the judgment upon personal property before the stay on appeal has been perfected, the court may, upon notice to the respondent, make an order dis- charging the levy; but this does not authorize the discharge of a levy made by virtue of a warrant of attachment (§ 131 1). § 525. The return. (Co. Civ. P. § 1315.) — The papers which must be transmitted to the Court of Appeals to enable it to hear the appeal are called " the return." When an appeal is taken from a final judgment, the return consists of certified copies of the notice of appeal and the judgment roll. When an appeal is from an order, the return consists of certified copies of the notice of appeal, the order appealed from, and the papers on which the court below acted in making the order (Rule 2, Ct. of Ap.). The appellant must, within twenty days after the appeal is perfected, cause the. return to be filed (§ I 3 I 5)- The section cited specifies among the papers to be transmitted to the appellate court, where the appeal is from a final judgment, the case and notice of exceptions if any. Ordinarily the return will contain the case and exceptions, prepared in the manner we have stated and made a part of the record at General Term (see ante, § 452), but there is an excep- tional case in which it is necessary to prepare a case specially for the appeal to the Court of Appeals, and that is when the appeal is from a judgment rendered at the General Term upon a verdict subject to the opinion of the court (§ 1339). If the appellant fails to transmit the papers to the appellate court, the respondent may cause them to be transmitted, and he may tax the expense thereof as a disbursement. But the respondent need not file the return ; he may, if the appellant fails to file it, by a notice in writing require the return to be filed within ten days after the service of the notice, and if the return is not filed in pursuance of such notice, the appellant shall be deemed to have waived the appeal ; and on an affi- davit proving that the appeal was perfected, and the service of such notice, and a certificate of the clerk that no return has been filed, the respondent may enter an order with the clerk 45 2 APPEALS. [CII. XVII. dismissing the appeal for want of prosecution, with costs, and the court below may thereupon proceed as though there had been no appeal (Rule 2, Ct. of Ap.). § 526. Preparation of case— Printing and serving papers. — In all calendar cases it is necessary for the appellant to pre- pare a case or appeal book ; this consists of a copy of the return, and the opinions at Special Term and also at General Term, if any have been rendered, and if not, an affidavit to that effect ; there must also be prepared an index to the plead- ings, exhibits, depositions, and other principal matters (Rule 5, Ct. of Ap). Within forty days after the appeal is perfected, the appellant must serve three printed copies of the case on the attorney for the adverse party. If he fails to do so, the respondent may, by notice in writing, require the service of such copies within ten days after service of the notice, and if the copies be not served in pursuance of such notice, the ap- pellant shall be deemed to have waived the appeal; and on an affidavit proving the default, and the service of such notice, the respondent may enter an order with the clerk dismissing the appeal for want of prosecution, with costs, and the court below may thereupon proceed as though there had been no appeal (Rule .7, Ct. of Ap.). The rule of court prescribes the style in which the papers shall be printed (Rule 6, Ct. of Ap.). At the commencement of the argument the appellant furnishes a printed copy of the case to each of the judges, and delivers nine other copies to the clerk and each party, and at the same time furnishes to each of the judges a printed copy of the points on which he intends to rely, with a reference to the authorities which he intends to cite, and he also delivers nine other copies to the clerk and three copies to the counsel of the adverse party (Rule 8, Ct. of Ap.). In the preparation of the printed points it is required that each party shall briefly state, in a separate form, the lead- ing fact which he deems established, with a reference to the folios where the evidence of such facts may be found (Rule 9, Ct. of Ap.). § 527. Bringing on the appeal and argument. — The appeal is brought on by notice of argument served in accord- ance with the general requirements as to time (Rule 37, § 780), §§ 528, 529-] WHAT QUESTIONS FOR REVIEW. 453 but there must be filed with the clerk proof of the service of such notice, otherwise he is directed by the rule not to enter the case on the calendar (Rule 22, Ct. of Ap.). Causes are entered on the calendar according to the date of the filing of the return, except as they are entitled to be preferred. Appeals from an order may be heard as preferred causes on motion days (Rule 20, Ct. of Ap.). In the argument of calendar causes and motions, only one counsel will be heard on each side, unless the court shall other- wise direct (Rule 10, Ct. of Ap.). And in the argument of a cause, not more than two hours shall be occupied by each coun- sel, except by the express permission of the court; and in the argument of appeals from an order, not more than twenty min- utes shall be occupied by the appellant's counsel, and not more than fifteen minutes by the respondent's counsel, without express permission of the court (Rule 19, Ct. of Ap.). § 528. What questions are brought up for review. (Co. Civ. P. § 1337.) — An appeal to the Court of Appeals from a final judgment, or from an order granting or refusing a new trial in an action, or from a final order affecting a substantial right made either in a special proceeding or upon a summary application after judgment in an action, brings up for review in that court every question affecting a substantial right, and not resting in discretion, which was determined by the General Term of the court below in rendering the judgment or making the order from which the appeal is taken; except that a ques- tion of fact arising upon conflicting evidence cannot be deter- mined on such an appeal unless where special provision for the determination thereof is made by law. § 529. Review of questions of fact on trial by court or referee. (Co. Civ. P. § 1338.) — Upon an appeal to the Court of Appeals from a judgment reversing a judgment entered upon a referee's report or a decision of the court upon a trial without a jury, or from an order granting a new trial upon such reversal, it must be presumed that the judgment was not reversed or the new trial granted upon a question of fact, unless the contrary clearly appears in the body of the judg- ment or order appealed from. This is the only instance authorizing a review in the Court 454 APPEALS. [CH. XVII, of Appeals of questions of fact depending upon conflicting evi- dence (87 N. Y. 514). It is essential, in order to secure such review, that the General Term order should contain a state- ment that the reversal was upon questions of fact, or upon questions of law and fact (97 N. Y. 378; 81 N. Y. 352). The Court of Appeals will not look into the opinion at General Term to see upon what ground the reversal was based (76 N. Y. 614; 74 N.Y. 620). § 530- Judgment or order on appeal. (Co. Civ. P. § 13 1 7.) — Upon an appeal from a judgment or order, the power of the Court of Appeals is such as is conferred by § 1317. It may reverse or affirm wholly or partly, or may modify the judgment or order appealed from, and each interlocutory judg- ment or intermediate order which it is authorized to review as specified in the notice of appeal, and as to any or all the parties, and it may, if necessary or proper, grant a new trial on the hearing. When the error is in assessing the damages, the court can- not assume the province of a jury and determine the damages, though it may permit the successful party to stipulate that the damages be reduced, and upon his failure to so stipulate, reverse the judgment and order a new trial. Vail v. Reynolds, 118 N. Y. 297. But where all the elements are before the court which will enable it to render the proper judgment, it may direct judgment accordingly (no N. Y. 55). When the appellant has stipulated for judgment absolute upon the affirmance of an order granting a new trial, the stipu- lation compels the court to award judgment absolute against the appellant upon affirmance, although it appears that the appellant was entitled to part of the relief granted by the judgment (§ 194). Conklin v. Snider, 104 N.Y. 641. See Hiscock v. Harris, 80 N. Y. 402; People v. Dennison, 84 N. Y. 272. § 531. Remittitur. — The judgment or order of the Court of Appeals must be remitted to the court below to be enforced according to law(§ 194). The remittitur shall contain a copy of the judgment of the Court of Appeals and the return made by the clerk below, and shall be sealed with the seal and signed by the clerk of the court (Rule 14, Ct. of Ap.). These papers are sent to the clerk of the court from which the appeal was § S3 2 -] RESTITUTION. 455 taken, or to the attorney for the successful party, to be filed with that clerk. The remittitur does not become operative until an order has been made by the court below directing that the judgment of the Court of Appeals be made the judgment of the lower court. Murray v. Jones, 18 State R. 916. No further action can be taken in the Court of Appeals after the remittitur has been sent down, until, by an order of the court below, it has been sent back to the Court of Appeals. Hence, if a party desires to move for a reargument or to correct the judg- ment after the remittitur has been sent down, it will be neces- sary, in the first instance, to obtain an order for its return to the Court of Appeals. A motion to make the judgment of the Court of Appeals the judgment of the lower court can be made ex parte. § 532. Restitution. (Co. Civ. P. § 1323.) — When proceed- ings under a judgment or order appealed from have not been stayed, but the judgment or order has been enforced in whole or in part, and the judgment or order is reversed or modified by the appellate court so that a party has received, under the judgment or order, that to which it is determined he is not enti- tled, he may be compelled to make restitution of that which he has thus unlawfully received. The successful appellant may bring an action to recover back the money paid pursuant to the judgment or order reversed (72 N. Y. 578; 29 Hun 215). He may also proceed in the manner prescribed in § 1323, which provides that when a final judgment or order is reversed or modified upon appeal, the appellate court, or the General Term of the same court, as the case may be, may make or compel restitu- tion of property, or of a right lost by means of the erroneous judgment or order; but not so as to affect the title of a pur- chaser in good faith and for value. Special provision is made for the sale of real estate in an action to compel specific per- formance of a contract of sale. It is discretionary with the court to make an order for resti- tution on motion or to leave the party to his action (102 N. Y. 464). CHAPTER XVIII. EXECUTIONS. CHAPTER XIII., CODE OF CIVIL PROCEDURE. § 533- Upon what judgment execution may issue. (Co. Civ. P. § 1240.) — Judgments in all personal actions except replevin were at common law enforced by means of the writ of fieri facias (fi./a.) or capias ad satisfaciendum {ca. sa.). The former was a direction to the sheriff to satisfy the judgment by a levy and sale of the debtor's property, real or personal, or both. The latter was a direction to the sheriff to take the debtor's person in satisfaction of the judgment. Neither of these writs are now in use. Their place is supplied by an exe- cution. Section 1240 provides that in either of the following cases a final judgment may be enforced by execution: 1. When it is for a sum of money in favor of either party, or directs the payment of a sum of money. 2. When it is in favor of the plaintiff in an action of eject- ment or for dower. 3. In an action to recover a chattel to either party. Judgments rendered in actions triable by the court without a jury, as well as those rendered after a jury trial, are enforce- able by execution when they are for a sum of money. And all such judgments are enforceable only by execution, except as mentioned in § 1241. The costs on final judgment in an action for divorce (§ 1769) and the payment of alimony may be enforced by execution (7 Hun 208). So the payment of motion costs must be enforced by execution (42 Hun 643). And it will be remembered that one of the early sections of the Code (§ 16) provides that, except in a case where it is otherwise spe- cially prescribed by law, a person shall not be arrested or imprisoned for disobedience to a judgment or order requiring the payment of money due upon a contract express- or implied, or as damages for the non-performance of a contract. (456) § 534-] JUDGMENTS ENFORCED FOR CONTEMPT. 457 § 534- When judgments enforced by punishment for contempt. (Co. Civ. P. § 1241.) — This section provides that in either of the following cases a judgment may be enforced by serving a certified copy thereof upon the party against whom it is rendered, or the officer or person who is required thereby or by law to obey it, and if he refuses or wilfully neglects to obey it, by punishing him for a contempt of the court : 1. When the judgment is final and cannot be enforced by execution, as prescribed in the last section. 2. When the judgment is final and part of it cannot be enforced by execution, as prescribed in the last section ; in which case the part or parts which cannot be so enforced may be enforced as prescribed in this section. 3. When the judgment is interlocutory and requires a party to do or to refrain from doing an act, except as specified in the next subdivision. 4. When the judgment requires the payment of money into court or to an officer of the court; except where the money is due upon a contract express or implied, or as damages for the non-performance of a contract. In a case specified in this sub- division, if the judgment is final, it may be enforced as pre- scribed in this section, — either simultaneously with, or before, or after the issuing of an execution thereupon, as the court directs. The proceedings to enforce a decree in a matrimonial action awarding alimony to the wife are specially provided by §§1772, 1773 (32 Hun 193), but costs and counsel fees are to be collected by execution (7 Civ. Pro. 327). Service of a certified copy of the judgment is the first step in the proceeding to enforce obedience under this section, which applies generally to what were formerly decrees in equity. Where the judgment directs the conveyance of real property or directs a party to make a deposit or delivery, beside punish- ing the disobedient defendant, it may require the sheriff to take and deposit or deliver the money or other personal property, or to convey the real property in conformity with the direction of the court (§ 718). It has been held that under the fourth subdivision a receiver who recovers a money judgment cannot enforce it by contempt. The judgment is still one for a sum of money, enforceable only by execution, though the plaintiff is an officer of the court (35 458 EXECUTIONS. [CH. XVIII. State R. 832). This subdivision was probably intended to include such judgments as should be recovered for moneys wrongfully withheld from the court or one of its officers (36 Hun 378). The court has a discretion in the enforcement of its decrees under this section, and the judgment creditor has no absolute right that the power should be exercised (73 N. Y. 613). Proceedings to punish for contempt are regulated by § 2266 et seg. § 535- When execution may be issued of course. (Co. Civ. P. §§ 1375, 1376, 1377.) — The party recovering a final judg- ment, or his assignee, may have execution thereupon of course, at any time within five years after the entry of judgment (§ 1375)- A new execution may be issued of course, if an execution has already been issued within five years and returned unsat- isfied (§ 1377). An execution against property cannot De issued to any county until the judgment is actually docketed in the clerk's office of that county (§ 1365). The fact that an appeal is pend- ing when the proceedings have not been stayed either by order or by filing the undertaking, is no bar to an execution upon the judgment appealed from (§ 1351). The time during which a person entitled to enforce a judg- ment is stayed from enforcing it by the provisions of a statute, or by an injunction or other order, or in consequence of an appeal, is not part of the time limited for issuing an execution thereupon or for making an application for leave to issue such an execution (§ 1382). The personal representatives of a deceased judgment creditor or an assignee of the judgment may enforce it within five years after entry, and the execution must be endorsed with the name and residence of the person issuing it (§ 1376). § 536. When leave to issue execution is required. (Co. Civ. P. § 1377.) — After the lapse of five years from the entry of final judgment, execution cannot be issued thereon unless an execution was issued thereupon within five years after the entry of judgment, and has been returned wholly or partly unsatisfied or unexecuted, or unless an order is made by the court granting leave to issue the execution. § 53 6 -J LEAVE TO ISSUE EXECUTION. 459 An application to the court for leave to issue an execution is unnecessary in any event within five years from the entry of judgment, and none is necessary after five years if an execution has once been issued within the five years (33 How. Pr. 289). This requirement for leave to issue execution has an historical origin. Under the Revised Statutes, if execution was not issued within two years after judgment, the plaintiff might sue out a writ of scire facias, by which the sheriff was required to summon the party against whom it was issued to appear at a certain day, to show cause, if he had anything to say, why the plaintiff ought not to have execution of the judgment (2 R. S. 577, § 3; Graham's Pr. 806), but if an execution had once been sued out within the two years a scire facias was unnecessary (5 Cow. 446; 1 Cow. 36, note). The issuing and return of the execu- tion unsatisfied creates a presumption that the judgment is unpaid, while a failure to issue an execution for the period named creates a presumption that the judgment has been satis- fied or released, which may be rebutted, and the opportunity to rebut this presumption which was afforded by scire facias is now furnished on the hearing of the motion for leave to issue the execution. Notice of an application for the order granting leave to issue the execution as prescribed in § 1377 must be served per- sonally upon thp adverse party if he is a resident of the State, and personal service can with reasonable diligence be made upon him therein; otherwise notice may be given in such man- ner as th^? court directs. When the judgment is for a sum of money, or directs the payment of a sum of money, leave shall not be granted except on proof by affidavit to the satisfaction of the court that the judgment remains wholly or partly un- satisfied (§ 1378). In Van Rensselaer v. Wright (121 N. Y. 626) it is said that a discretion is vested in the court in respect to issuing an execu- tion upon the application for leave, and that even when it does not appear that the judgment has been satisfied, the court may in its discretion deny the application. An execution issued, without leave of the court, more than five years after the judgment was rendered, is not void, but voidable only (2 Abb. N. C. 206 ; 18 N. Y. 150 ; 24 Hun 161) In the case last cited it was held that where a motion was made to set aside an execution, and facts appeared which 460 EXECUTIONS. [CH. XVIII. would require leave to have been given if formally asked for, it was not an abuse of discretion to refuse to set aside the exe- cution. After twenty years, leave will not be granted unless there is proof of a payment or a written acknowledgment within that time (4 Abb. Pr. 132; see Co. Civ. P. § 376). § 537- After death of judgment debtor, who has died since entry of judgment.— An execution to collect a sum of money cannot be issued against the property of a deceased judgment debtor except as prescribed in §§ 1380 and 1381. The substance of these sections is, that after the expira- tion of one year from the death of the judgment debtor, an execution on such a judgment may be issued against any prop- erty upon which it is a lien, but leave must first be obtained from the court out of which the execution is to be issued, and also from the surrogate having charge of the administration of the decedent's estate; and if the judgment is a lien on real estate by reason of the docketing of the judgment, such leave cannot be granted until three years after letters testamentary or of administration have been issued, or unless the decedent died intestate, and no letters of administration have been issued on his estate; or if decedent died out of the State, and no let- ters testamentary or of administration have been taken out, the court may grant leave to issue the execution after the expira- tion of three years. But an exception is made in a case where it has been adjudged that a conveyance of real property was made by the judgment debtor in his lifetime in fraud of credit- ors. In such a case execution may be issued in the form pro- vided by § 1380, without leave, but unless the conveyance has been adjudged to be fraudulent, leave of court is necessary in order that the judgment debtor may issue execution (59 Hun 369; 40 State R. 743). Leave to issue execution by the court from which it is to be issued, is obtained on notice as specified in § 1381, and the decree of the surrogate for like permission is obtained on notice also as specified in that section. The exe- cution cannot issue without the permission of both tribunals (49 N. Y. 160), and leave will not be granted except upon proof by affidavit to the satisfaction of the court that the judg- ment remains wholly or partly unsatisfied (59 Hun 369; 30 Hun 57o). § 538.] REQUISITES OF THE EXECUTION. 461 It is further to be noted that an execution upon a judgment against an executor or administrator in his representative capacity for a sum of money shall not be issued until an order permitting it is made by the surrogate from whose court the letters were issued (§ 1825). § 538. Requisites of the execution. (Co. Civ. P. § 1364.) — There are four kinds of execution, as follows: (1). Against property. (2). Against the person. (3). For the delivery of the possession of real property, with or without damages for withholding the same. (4). For the delivery of the possession of a chattel with or without damages for the taking or deten- tion thereof. An execution is the process of the court from which it is issued. The general requisites of an execution are specified in § 1366. It must describe the j udgme nt, give the mimes of the parties in whose favor and against whom the judgment was given, the time when and the court in which it was rendered, and if in the Supreme Court, the county in which the judgment roll is filed. It must require the sheriff to return it to the clerk of the proper county within sixty days after its receipt. It must be attested in the name of a judge of the court, and endorsed or subscribed by the name of the attorney or the person by whom it is issued (§§ 23, 24). A formal departure from the required form or mere irregularity may be amended (17 N. Y. 445). When an execution is issued out of a court other than that in which the judgment was rendered upon filing a transcript, it must specify the clerk with whom the transcript was filed, and the time of filing, and it must be made returnable to that clerk (§ 1367). An execution issued to the sheriff without first having a transcript of the judgment filed, and the judgment docketed in the county clerk's office, and when the judgment is not docketed -during the life of the exe- cution, is void, and an action against the sheriff for a false return cannot be maintained. Dunham v. Reilly, no N. Y. 366. The provision allowing the sheriff sixty days to return an execution is for his benefit, that he may have a reasonable time to execute the process, and it cannot be shortened (103 N. Y. 502), but it is not necessary that the execution should remain in the hands of the sheriff for sixty days ; he may return it sooner (1 E. D. Smith 415). If he fails to make a 462 EXECUTIONS. [CH. XVIII. return at the expiration of the sixty days, the judgment cred- itor may serve upon him a notice to return the process within ten days or show cause, at a Special Term to be designated in the notice, why an attachment should not issue against him for contempt (Rule 6; 9 How. Pr. 459), and an attachment may be issued against the sheriff to compel him to return an execution although no such notice has been served upon him (13 Civ. Pro. 142). Nor need the judgment creditor make a demand for a return of the execution before bringing suit against the sheriff for a failure to make the return (3 Hill 552). Such a suit may be brought immediately after the expiration of the sixty days. The sheriff is liable to a suit for damages for making no return or for making a false return. In either action the amount of the execution is priitid facie the measure of damage, but the defend- ant may show in mitigation that the judgment debtor had no property out of which the judgment could have been made, or not sufficient to pay it in full (11 Hun 565; 38 N. Y. 28). The return may be amended by leave of court even after the com- mencement of an action for an insufficient or false return (35 N. Y. 482.) An execution upon a judgment for a sum of money, or directing the payment of a sum of money, must specify in the body thereof the sum recovered or directed to be paid, and the sum actually due when it is issued, and it must specify the day from which interest runs (§ 1368). The execution should be made returnable to the clerk with whom the judgment roll is filed (§ 1366), unless the execution was issued to a county where the judgment was docketed upon a transcript of the judgment entered in another county, in which event the execution should be returned to the clerk with whom the transcript is filed (§ 1367). § 539. Requisites of execution against property. (Co. Civ. P. §1369.)— An execution against property must, if the judgment roll is not filed in the clerk's office of the county to which it is issued, specify the time when the judgment was docketed in that count}'. It must substantially require the sheriff to satisfy the judgment out of the personal property of the judgment deDtor; and if sufficient personal property can- not be found, out of the real property belonging to him at the § S4°-J EXECUTION WHERE ATTACHMENT LEVIED. 463 time when the judgment was docketed in the county, or at any- time thereafter. When the judgment is against j oint de btors, one or more of whom have not been summoned, the judgment creditor must endorse on the execution a direction containing the name of each defendant who was not summoned, and restricting the enforcement of the execution so that it shall be levied upon and collected out of the property owned by such defendant jointly with the other defendants who were summoned, and out of the sole property of the defendants summoned (§§ 1934, 1935). Except in the particular instance of a judgment against joint debtors, some of whom have not been served, an execu- tion upon a judgment against several defendants may be satis- fied out of their joint property or out of the individual prop- erty of any one or more of them (105 N. Y. 12; 50 Hun 545)- §540. Requisites of execution where a warrant of attachment has been levied. (Co. Civ. P. § 1370.) — Where a warrant of attachment has been issued and the defendant is a non-resident or foreign corporation, and he has not been personally served .within the State, and has not voluntarily ap- peared, the execution must require the sheriffto satisfy it out of the attached personal property, or if that is insufficient, out of the real property attached. In any other case where a war- rant of attachment has issued, the execution must direct that it be satisfied out of the personal property attached, and if that is insufficient, out of the other personal property of the judgment debtor; or if both are insufficient, out of the real property attached, and if that is insufficient, out of the real property belonging to him when the judgment was docketed or at any time thereafter. A judgment against a non-resident not personally served within the State where an attachment has been issued is., as we have seen, substantially a judgment in rem. {ante, § 132 ; 75 N. Y. 534; 89 N. Y. 338; 20 Civ. Pro. 38), limited in its operation to the attached property. It has been held that the provisions of this section are per- emptory, and attached real estate cannot be sold until the remedy against the debtor's personal property, both attached and unattached, has been exhausted. The execution must be issued to the sheriff who levied under 464 EXECUTIONS. [CH. XVIII. the warrant of attachment, although his term of office has expired (§§ 706, 707, 708). § 541. Execution for delivery of chattel. (Co. Civ. P. § I 373>) — This section must be read in connection with §§ 1731 and 1732. The execution must particularly describe the chat- tel and designate the person to whom the judgment awards the possession, and must substantially require the sheriff to deliver the possession of the property within the county to the party entitled thereto. When the judgment is rendered in favor of the plaintiff in one of the cases specified in § 1727, the execu- tion must require the sheriff to deliver possession of the chat- tel to the defendant, unless the plaintiff, before the delivery, pays the money awarded to the defendant. When the judg- ment awards a sum of money, if possession of the chattel is not delivered to the prevailing party, it may be collected by the same execution requiring the delivery of the chattel, or by a separate execution (§ 1373). It must require the sheriff, if the chattel cannot be found within his county, to satisfy the execution out of the property of the party against whom the judgment is rendered (§ 1728), and must, in respect to the money to be collected, follow the requirements respecting exe- cutions against property (§ 1373). § 542. To what counties execution may issue. (Co. Civ. P. § 1365.) — An execution against property can be issued only to a county in the clerk's office of which the judgment is docketed, and it must contain a recital to that effect (21 Civ. Pro. 71), and if docketed in a county upon transcript of a judgment entered in another county, it must specify the clerk with whom the transcript is filed, and the time of filing, and it must be made returnable to that clerk (§ 1367). An execution against the person may be issued to any county, although the judgment has not been docketed in that county (38 Hun 149). An exe- cution for the delivery of the possession of real property must be issued to the county where the property, or a part thereof, is situated. An execution for the delivery of the possession of a chattel may be issued to any county where the chattel is found; or to the sheriff of the county where the judgment roll is filed. Executions upon the same judgment may be issued at the same time to two or more different counties. §§ 543; S44-] T0 WHOM EXECUTION DIRECTED. 465 § 543- To whom execution directed. (Co. Civ. P. § 1362.) — An execution must be directed to the sheriff unless he is a party or interested, in which case it must be directed to the coroners or a coroner (§ 173), though the court has power in such a case to designate a person to act instead of the coroners. The requirements as to the steps to be taken in such a case are set out in § 1362. The issuing of an execution to the sheriff is essential to his power to execute the judgment. Without an , execution his act is not ministerial, but purely personal (6 State R. 299). Hence it follows that the execution, in order to protect the sheriff, must be such in substance and effect as the law permits. Just what defects or departures from the statu- tory requirements will render the execution ineffectual cannot perhaps be stated. Although the execution is so defective that it is subject to be vacated and set aside on motion, it may not be treated as void when questioned in collateral proceedings, when the defects are amendable, or where all the essential facts necessary for the direction and protection of the sheriff are stated in the execution, or are plainly inferable from the facts stated. Wright v. 'Nostrand, 94 N. Y. 31. In the case cited will be found a collection of instances in which execu- tions have been held amendable (p. 48). § 544. Duties of sheriff in executing the writ. — It is the duty of the sheriff, upon receipt of the execution, to endorse thereon a memorandum of the day, hour, and minute when received (§ 1363), and to return it to the proper clerk within the required time, with a return of his official action endorsed upon it. There will be found in the clerk's office a book alphabetically arranged showing the return of executions. The general rule is, that the sheriff is protected in pro- ceeding to execute a process which is valid upon its face, although by reason of some defect in the previous proceedings in the action the process is void. Troy R.R- Co. v. Kane, 72 N. Y. 614. It is the duty of the sheriff to levy upon property which he finds in the possession of the judgment debtor (Tur- ner v. Borthwick, 20 Hun 1 19), although he may demand indem- nity if the property is claimed by some other person. While the sheriff is not presumptively the agent of the party on whose behalf the process is issued, yet in following out instructions received by such party he becomes his agent, and the party 30 466 EXECUTIONS. [CH. XVIII. will be responsible for his acts under such instructions (i Denio 548; 19 Abb. N. C. 152). The execution, as we have seen, must be returned by the sheriff within sixty days after its receipt (§ 1366). He may return it sooner if there is no property, but if there are several executions in the hands of the sheriff, the rule in New York County is that the sheriff will not return a later execution, except upon notice to, and the consent of, the earlier execution creditors. § 54.5. Exempt property. (Co. Civ. P. §§ 1389, 1391.) — The statute provides that certain personal property, when owned by a householder, is exempt from levy and sale under execution. These articles are enumerated in § 1390. In addition to the articles enumerated in that section, it is fur- ther provided that the 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 when owned by a householder, or a person having a family for which he provides, are exempt from levy and sale on execution, except when 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 (§ 1391). If property consists of articles mentioned in § 1390, it is absolutely exempt, if the owner is a householder, and the officer has no right to levy upon it. If, however, the property is of the description mentioned in § 1391, the exemption is a qualified one, and the debtor must claim it and notify the officer of his claim before he can properly maintain an action either for its conversion or to recover its possession (59 Hun 268, citing the cases ; see 51 How. Pr. 45; 34 N. Y. 253). The term " householder," as used in the statute, imports the. master or head of a family who reside together and constitute a house- hold. It is not enough that he should have a house in which he lives unless he has a family dependent upon him for which he provides (46 Hun 48), though the family need not consist of his wife and children (14 How. Pr. 436; 18 Johns. 400). If the value of the debts or property within the description of § 1391 aggregates more than $250, the debtor has a right to select the §§ 546-548-] MILITARY PAY, PENSIONS, ETC. 467 articles for which he will claim exemption up to that sum (33 Super. 382; see 15 State R. 579). Where the judgment debtor is a woman, she is entitled to the same exemptions from levy and sale by virtue of an execu- tion, subject to the same exception as in the case of a house- holder (§ 1392). It seems that she need not be a householder or have a family for which she provides in order to claim the exemption (39 State R. 194). § 546. Military pay — Pensions — Testimonials. (Co. Civ. P. § 1393.) — The statute also exempts from levy and sale under execution the military pay and bounty of an officer, musician, or private in the military or naval service of the United States, and testimonials presented for service rendered in such service, and the uniform, arms, and equipment used in that service. The question has arisen, whether property purchased with pension money is embraced within the exemption, and in the case of Y. C. N. Bank v. Carpenter (119 N. Y. 550) it was held that where receipts from a pension can be directly traced to the purchase of property necessary or convenient for the support and maintenance of the pensioner and his family, such prop- erty is exempt under the provisions of the statute; but where the pension is embarked in business or trade, and it is impos- sible to identify the fund in the various articles of property in which it has been invested, the pensioner loses his right of exemption (2 Lans. 185). § 547. Other exemptions — Burying-ground. (Co. Civ. P. §§ 1394, 1395.) — A right of action for taking or injuring exempt property is also exempt, for one year after the collection thereof, from levy and sale by virtue of an execution, or from seizure in any other legal proceeding (§ 1394; 11 Paige 180; 48 N. Y. 188). A burying-ground of certain extent and under cer- tain conditions (§ 1395) may be rendered exempt upon taking the proceedings stated in § 1396. Cemeteries are exempt by special statute (Laws of 1877, ch. 31). § 548. Homestead exemption. (Co. Civ. P. §§ 1397-1404.) — Section 1397 provides that a lot and buildings not exceeding in value $1,000, occupied as a residence by a householder hav- 468 EXECUTIONS. [CH. XVJII. ing a family, may be designated as a homestead, and in that event shall be exempt from sale on execution for contract debts incurred after the designation, except the purchase- money. The designation is made either in the conveying of the property or by a notice containing a description of the prop- erty as provided by § 1398. A married woman may claim the same right of exemption of a homestead owned and occupied by her as a householder having a family (§ 1399). The exemp- tion continues after the owner's death for the benefit of the widow and growing children until the majority of the youngest surviving child, and until the death of the widow; or if the ex- empt property was owned by a woman, until the majority of her youngest surviving child (§1400); but the exemption ceases if the property ceases to be used as a residence by a person for whose benefit it may continue, except (§ 1400) a suspension of residence for a period of one year occasioned by injury to or destruction of the dwelling-house upon the premises (§ 1401). The exemption does not extend beyond the value of $1,000, and if the property exceeds that value the lien of the judgment attaches to the surplus above that amount, but the property cannot be sold under execution. The surplus must be reached by a creditor's action (§ 1402; 55 Hun 265), and upon a sale of the property in such an action, or in any other action affecting the title to an exempt homestead, the proceeds are to be mar- shalled and the debtor will receive the benefit of the exemption to the extent of $1,000 (§ 1403). Section 1404 provides the mode of cancelling the exemption, and declares any other mode void. If the debtor mortgages the property, the mort- gage attaches only to the surplus after the exemption is allowed (55 Hun 265). LEVY AND SALE OF PERSONAL PROPERTY. § 549. When lien attaches to personal property under execution. (Co. Civ. P. § 1405.) — A lien attaches upon the goods and chattels of a judgment debtor not exempt, and upon his other personal property subject to levy by virtue of an exe- cution when situated within the jurisdiction of the officer to whom an execution against property is delivered, from the time of the delivery thereof to the proper officer to be exe- cuted, but not before. This lien arises on receipt of the exc § 55°-] HOW LEVY MADE. 469 cution by the sheriff to be levied, but the execution must be followed by a levy (54 N. Y. 97). If the levy is actually made, it relates back to the time of the delivery of the execution, and will take precedence of a chattel mortgage filed after the delivery of the execution, but before actual levy (40 N. Y. 97). But the title of a bona fide purchaser without notice before levy is superior to the lien of the execu- tion (§ 1409). The term, " bona fide purchaser,'' does not include one who takes title as security for or payment of an antecedent debt (40 Hun 323; 34 Super. Ct. 524). § 550. How levy made. — The statute does not prescribe the steps necessary to be taken on the part of the sheriff to con- stitute a legal levy. The common-law rules govern the deter- mination of the question. It is said that to constitute a valid levy not only against the debtor, but as against subsequent bona fide purchasers, it is sufficient: 1. That the property is within the view and under the con- trol of the officer. 2. That he takes possession of it either by removing it or by an oral declaration that a levy is intended, and that he claims to hold the goods under such levy. 3. That an inventory, or at least a memorandum of the levy, is made at the time (2 Rumsey's Prac. 835.) The test of a valid levy is whether enough has been done to subject the officer to an action of trespass, if it were not for the protection of the execution (29 N. Y. 471; 83 N. Y. 231). It is not necessary that the property should be taken out of the hands of the debtor. It may be left in his custody or in that of a third party as a receiptor (29 N. Y. 471). If the prop- erty is in the hands of the sheriff under a previous execution, the delivery of a subsequent execution to the sheriff constitutes a levy upon it (16 Hun 163). The sheriff cannot make a forci- ble entry into a dwelling in order to execute an execution; but if he obtains entry into the dwelling peaceably, he may break open an inner door, or he may break open an outer door to regain possession. It is the duty of the sheriff to collect the judgment, first out of the personal property, if possible (2 Civ. Pro. 306). No levy on real property is necessary. Such a thing is now unknown to the law, as the judgment becomes a lien on real property as soon as docketed. 47° EXECUTIONS. [CH. XVIII. § 551. Dormant execution. — By a dormant execution is meant one which the sheriff has been instructed not to execute in full, as where he has been instructed to do nothing under it, or to simply levy, but not to proceed to sale, with the effect of producing an apparent lien to the prejudice of subsequent exe- cutions. Bad faith is not a necessary ingredient to make an execution dormant ; a delay directed by the plaintiff for any cause will have that effect. But not where the delay is reason- able and proper, and intended to bring the property to sale under the most favorable circumstances. When an execution has thus become dormant, subsequent executions obtain a prior right to enforcement. This loss'of priority is available only to subsequent execution creditors. It creates no rights in favor of the debtor. §552. What may be levied on. — All the personal prop- erty of the judgment debtor except such as is exempt, and' except choses in action, may be levied upon under an execu-. tion. This includes all personal property capable of manual, delivery, and by statute, a bill, or other evidence of debt- issued by a moneyed corporation to circulate as money, or a bond issued by a government, state, county, public officer, or municipal or other corporation payable to bearer, may be levied upon (§ 141 1); money may be levied upon, but it need not be sold unless it is gold coin (§ 1410). The interest of the judg- ment debtor in personal property subject to levy which ha^ been pledged, may be sold in the hands of the pledgor. The purchaser acquires the rights of the judgment debtor, and may redeem the property and obtain possession of it upon the same terms and conditions as the judgment debtor (§ 1412). As to chattels covered by a chattel mortgage, different situa- tions may arise. The mortgagor may be in possession under the terms of the mortgage and entitled to possession for a definite period. In that case the mortgagor has an interest in the mortgaged property capable of levy and sale under execution (17 N. Y. 202). The mortgagor may be in possession after de- fault. In that event the mortgagor has no interest in the mortgaged property, that can be sold on execution (125 N. Y. 290 ; 121 N. Y. 223). The mortgagee may be in possession either before or after default. In that event the mortgagor has only an equitable interest which cannot be sold under exe- § 5S3-J ORDER OF PREFERENCE. 471 cution (13 N. Y. 565; 53 Super. 480). Upon execution against one partner, the sheriff may levy upon his interest in the prop- erty of the firm, and take possession of the entire property (42 N. Y. 132), but he can sell only the partner's interest in the firm property, which is the balance due him on liquidation of the firm business (46 Hun 571). By §§ 1413 and 1414 it is provided that in case of such a levy the other partner may apply for an order directing the officer making the levy to release the prop- erty, and in that case the partner so applying must give an undertaking that he will account for the debtor's interest in the partnership property to the purchaser thereof, and pay over the amount found due on the accounting (§ 1414). These sections are similar to the earlier provisions in the case of a levy of attachment against the property of one partner upon partnership property (see ante, § 293). § 553- Order of preference and attachments as to exe- cutions. (Co. Civ. P §§ 1406, 1408.) — Where two or more executions against property are issued out of the seme or dif- ferent courts of record against the same judgment debtor, the one first delivered to an officer to be executed has preference notwithstanding that a levy is first made by virtue of an exe- cution subsequently delivered; but if a levy upon and sale of personal property has been made by virtue of the senior exe- cution, before an actual levy by virtue of the junior execution, the same property shall not be levied upon or sold by virtue of the latter. Under this section, notwithstanding a sale be made under a junior execution, the sheriff must first apply the proceeds in satisfaction of the execution first delivered to him, although no levy has been made thereunder (124 N. Y. 612, 620). A sheriff's levy under an execution inures also as a levy upon other executions which afterward come into his hands, and when the sheriff sells property for the purpose of satisfy- ing an execution in his hands and afterward discovers that a prior execution is entitled to the whole or a part of the moneys raised, he may, at any time before making his return, apply the moneys accordingly (2 N. Y. 451). When there are one or more executions and one or more warrants of attachment against the property of the same per- son, they take priority according to the order in which they are delivered to the sheriff to be executed (§ 1408). It is thus 472 EXECUTIONS. [CH. XVIII. made the duty of the sheriff to give preference, in the applica- tion of the proceeds of a sale under junior executions, to a prior warrant of attachment although no levy be made there- under (124 N. Y. 612, 620). As to the rule of priority in case some of the execution or attachment creditors refuse to in- demnify the sheriff when indemnity is properly demanded while others furnish the indemnity, see ante, p. 257. § 554. The effect of a valid levy. — When the sheriff levies upon sufficient property to satisfy the execution and takes the property from the judgment debtor, the execution is satisfied (2 N. Y. 451); and if the judgment creditor is deprived of the benefit of the levy by reason of a wrongful act of the sheriff, his remedy is against him by action (1 Den. 574; 2 N. Y. 451). If that remedy is not adequate, the loss must fall upon the judgment creditor, and not upon the judgment debtor whose property has been taken (no N. Y. 114). § 555- When property levied upon is claimed by a third person. (Co. Civ. P. §§ 1418-1427.) — If personal property levied upon as the property of the judgment debtor is claimed by or on behalf of another person as his property, the officer may in his discretion impanel a jury to try the validity of the claim. The purpose of and the practice on impanelling a sheriff's jury to try the title to personal property levied upon under an exe- cution or attachment has been heretofore alluded to (see pp. 52, 257), and what is there said need not be repeated. The object of the inquisition by the sheriff's jury is to determine whether the sheriff is entitled to indemnity before proceeding further in the execution of the process. If the claimant suc- ceeds in showing title, the sheriff may relinquish his levy unless he is indemnified. If he is indemnified, he must pro- ceed. The remedy of the claimant is then against the sheriff for trespass or by replevin. If he succeeds, 'the sheriff must look to the indemnities for compensation for loss and expenses. By a recent amendment to § 1419, in New York County, where a bond of indemnity is given to the sheriff, he must serve a copy upon the claimant and the judgment creditor, or the attorney whose name is subscribed to the execution, with a notice of the justification of the sureties thereon. An opportunity is afforded for the examination of the sureties as to their qualification, and if they are found sufficient by the judge before whom the exam- § 55S-] WHEN PROPERTY CLAIMED BY THIRD PERSON. 473 ination takes place, and he approves the bond, the sheriff is dis- charged from liability by reason of the levy, detention, or sale of the property, and the claimant must'look for redress to the indemnitors. It has been held that the provisions of the Code do not impair the right of a person wrongfully deprived of his property under legal process issued against the property of another to prosecute the indemnitors and all others concerned in the seizure as joint trespassers (37 State R. 251). The statute further provides for the substitution of the indemnitors in the place of the sheriff as defendants in an action brought against an officer to recover damages by rea- son of a levy or sale of personal property by virtue of an exe- cution or a warrant of attachment. The substitution may be by order, upon the application of the indemnitors or of the sheriff (§1421). If the application is made on behalf of the officer, notice must be given to the indemnitors or their attorney, and also to the attorney for plaintiff. If the application is on behalf of the indemnitors, the motion papers must contain a written consent to be made defendant, executed by each of the indem- nitors, unless proof is furnished that those who do not consent are dead. The consent must be acknowledged and the motion must be made on notice to the attorney of each party who has appeared (§ 1422). Upon granting the motion the court has power in its discretion to require the indemnitors to furnish additional security to the plaintiff and to pay the reasonable expenses of the defendant necessarily incurred before the order is granted, or it may enforce other terms. The constitutional- ity of this statute was affirmed in Hein v. Davidson (96 N. Y. 175), but in Hayes v. Davidson (98 N. Y. 19) it was held that the substitution of the indemnitors in the place of the officer upon his application was an act of doubtful propriety, and that the cases must be rare when any useful purpose can be served by depriving the plaintiff of his remedy against the officer if he prefers to pursue it. The indemnitors when substituted have the same standing as the sheriff, and may avail themselves of the same defences, as by showing that the claimant and plain- tiff is a fraudulent grantee of the judgment debtor (117 N. Y. 306). There are further provisions of the statute regulating the practice when the indemnity relates only to a part of the property (§ 1424), and for the relief of the sheriff, when he is sued in company with the indemnitors (§ 1425), as he may be, 474 EXECUTIONS. [CH. XVIII. since they may be regarded as joint trespassers. And it is fur- ther provided that the sheriff cannot enforce an indemnity bond if he fails to give notice of an action or actions against him to the attorney or attorneys whose names are subscribed to the several executions, or attachments, or the judgment or attachment creditors, before the trial and at least ten days be- fore judgment by default (§ 1427). § 556. Proceedings on sale under execution. (Co. Civ. P. §§ 1428, 1429.) — At least six days' previous notice of the time and place of sale of personal property by virtue of an execution must be giVen by posting conspicuously written or printed notices thereof in at least three public places of the town or city where the sale is made. An omission of the sheriff to give notice, or the taking down or defacing of the notice, does not affect the validity of the sale to a purchaser in good faith without notice (§ 1386). The per- son taking down or defacing a notice of sale becomes liable to a penalty (§1385). The sale must take place between 9 a.m. and sunset (§ 1384). The property must be put up in lots, and personal property cannot be sold except where it is present and within view of those attending the sale (§ 1428). The rule of caveat emptor applies to every purchaser at a sheriff's sale of either real or personal property by virtue of an execution. If the judgment upon which the execution issues is void, or has been paid, the purchaser takes nothing (70 N. Y. 553, 560), and there is no implied warranty of title. A regular sale by the sheriff transfers to the purchaser the title of the judgment debtor as it existed on the day of the delivery of the writ, subject to the claim of bona fide purchasers before levy (5 Abb. Pr. 458). The property must be present and must be pointed out to bidders, and a violation of this provision ren- ders the sale void (14 Johns. 352). Neither the sheriff nor his deputy can become a purchaser (4 Wend. 474), but the plaintiff may purchase, and when he does purchase at a sum sufficient to pay the judgment, that satisfies it (1 Barb. 238). The plain- tiff need not pay the amount up to his judgment when he becomes purchaser (19 Johns. 84; 5 Cow. 390), although as a rule the sheriff must sell for cash or he will himself be respon- sible for the purchase price (90 N. Y. 208). It is in the power of the court to set aside a sale under exe- § 556.] SALE OF REAL PROPERTY. 475 cution and order a resale upon sufficient cause shown, as for an irregularity (15 Abb. Pr. 259), for fraud and abuse of process (26 Alb. L. J. 195), or for inadequacy (18 Wend. 611). SALE AND REDEMPTION OF REAL PROPERTY. Sales of real property under execution have some special features which we shall not consider in detail. We present only a general outline of the practice. It will be noted in the first place that there is no provision for a levy of the execution upon real property, for the reason probably that the docket of the judgment makes it a lien upon the debtor's lands. In the next place, the notice of the time and place of sale is more carefully provided for (§ 1434). A notice of forty-two days must be given, which must not only be posted in three conspicuous places, but must be published once a week for six weeks immediately preceding the sale. Such notice must describe the property with common certainty (§ 1435), and the sheriff who sells, without having given the notice re- quired, forfeits f 1,000 to the party injured, in addition to the damages the party may sustain (§ 1436). The property must be sold in lots, and such lots must be first offered as the debtor requests, and no more property shall be sold than appears to be necessary to satisfy the execution (§ 1437). After the sale the sheriff must make duplicate certificates of sale duly acknowledged, stating (1), the name of the purchaser and the time when the sale was made; (2), a particular descrip- tion of the property; (3), the price bid for each parcel; (4), the whole consideration (§ 1438) ; and within ten days after the sale he must file one of the certificates in the office of the clerk of the county and deliver the other to the purchaser (§ 1439). The sale does not divest the title of the judgment debtor, but the purchaser acquires a specific lien, and a right to a title after the expiration of a certain time if the property is not redeemed. Livingstone. Arnoux, 56 N. Y. 516. The judgment debtor, after the sale and before the deed is given, has the right of possession and certain other rights as prescribed in § 1441, but he may be prevented from committing waste. Within one year after the sale, the judgment debtor whose right and title were sold, or his heir, devisee, or grantee, who has acquired, by inheritance, devise, deed, sale by virtue of a 47 6 EXECUTIONS. [CH. XVIII. mortgage or execution, or by any other means, an absolute title to the property, may redeem by paying to the purchaser, his executor, administrator, or assigns, or to the sheriff who made the sale, for the use of the person so entitled thereto, the sum of money which was paid upon the sale, with interest from and at the rate of ten per cent, a year (§§ 1446, 1447). Upon such payment being made by a person entitled to redeem, the sale of the property redeemed, and the certificates of the sale as far as they relate thereto, become null and void (§ 1448). The debtor has the entire year within which to redeem. After the expiration of the year, and at any time before fifteen months from the time of the sale, a creditor having a judg- ment rendered or a mortgage duly recorded which is a lien upon the real property sold may redeem by paying the sum of money which was paid upon the sale, with interest at seven per cent, per annum, and executing a certificate of satisfaction as prescribed in § 1463 (§ 1450). When a creditor has re- deemed, any other creditor who might have redeemed from the purchaser, may redeem from the first redeeming creditor. To do so he must pay the amount paid by the first redeeming creditor, with interest at seven per cent, from the time of re- demption (§ 1452), and execute a satisfaction of his judgment or mortgage. If the second redeeming creditor has a subse- quent lien to the first redeeming creditor, he must pay not only the amount paid by the first redeeming creditor, but also the amount of the claim such creditor has satisfied; but if the lien of the second redeeming creditor is prior to that of the first redeeming creditor, he need pay only the amount paid by the first creditor to redeem, and then the first redeeming creditor may redeem from the second (§ 1452). A third or any other creditor may also redeem in the same manner (§ 1453). A creditor who might have redeemed within fifteen months, may redeem from any other redeeming creditor although the fifteen months have elapsed, provided that he thus redeems within twenty-four hours after the last redemption. So that, if a creditor redeems on the last day of the fifteen months, any other creditor may redeem from him within twenty-four hours thereafter, and other creditors may redeem successively, each having twenty-four hours to redeem subsequent to last pre- vious redemption. Immediately after the expiration of the fifteen months from § 556-] EXECUTION AGAINST THE PERSON. 477 the time of sale, or within twenty-four hours after the last redemption, the sheriff who made the sale must execute the proper deed or deeds to the property sold which has not been redeemed by the judgment debtor (§ 147 1). If the sheriff has died or is disqualified to act, the under-sheriff may execute and deliver the deed (§ 1475). EXECUTION AGAINST THE PERSON. (Co. Civ. P. §§ 1487, 1495.) Where a judgment may be enforced by execution against property under § 1 240, an execution against the person may issue thereon in two cases: 1. When the plaintiff's right to arrest the defendant depends uponJ:he,nature of the action. 2. When an order of arrest was granted and executed and has not been vacated. This refers us back to the article on " Arrest on mesne process." It will be remembered that § 549 was amended in 1886, so that it now provides that an order of arrest may be granted in an action where the action is brought for any of the causes mentioned in that section. That section does not provide for an order of arrest in any case except when the right to arrest depends upon the character of the actiom The only other section under which an order of arrest can be issued is § 550, which is the substitute for ne exeat, and provides for an order of arrest only in a case where a judgment may be given which can be enforced only by contempt. Hence it would seem that the second subdivision of § 1487 can now have no application, since every case in which an execution against the person can issue must fall under the first subdivision, though this does not appear to have been expressly decided. See Car- rigan v. Washburn, 18 Civ. Pro. 79, rev'g 14 Id. 350 ; Roeber v. Dawson, 22 Abb. N. C. 73. It seems, therefore, now that the only test as to whether an execution against the person can be issued, is whether the com- plaint discloses a case in which an order of arrest might be granted. An execution against the person must substantially require the sheriff to arrest the judgment debtor and commit him to the jail of the county until he pays the judgment or is dis- charged according to law (§ 1372). An execution against the person cannot be issued until an execution against the prop- 478 EXECUTIONS. [CH. XVIII. erty of the debtor has been returned wholly or partly unsatis- fied, unless the judgment debtor is actually confined without having been admitted to jail liberties upon an execution in another action or an order of arrest or surrender of bail in the same action (§ 1489), and the execution against the person must, except in the case specified, recite the issuing and return of the execution against property (§ 1372; 38 Hun 149; 36 Hun 233). An execution against the person issued before the issuing and return of an execution against property is void unless the debtor is actually confined as stated (45 Hun 133), but the right to insist upon compliance with this requirement may be waived (71N. Y.377; 88 N. Y. 629). And an execution against the per- son of the judgment debtor cannot be issued without leave of lhe court, while an execution against his property issued in the same action remains unreturned ; and an execution against his property cannot be issued while an execution against his person issued in tlje same action remains unreturned (§ 1490). A new execution against the person may issue after an escape (§ 1492), and a new execution against property may be issued where the judgment debtor dies while charged in execution (§ 1493)- So the statute provides that after the judgment debtor has remained in custody for thirty days the judgment 4 creditor may serve a written notice on the sheriff requiring him to dis- charge the judgment debtor from custody by virtue of the exe- cution. The sheriff may then discharge the judgment debtor and return the execution accordingly. Thereafter another execu- tion against the person cannot be issued, but the judgment creditor may otherwise enforce the judgment as if the execu- tion from which the debtor was discharged had been returned without his having been taken (§ 1494). The taking of the defendant on execution does not absolutely satisfy the judg- ment ; but while the imprisonment continues, other remedies of the creditor upon the judgment are suspended (95 N. Y. 461; 24 Hun 255). If the action is one in which the defendant might be arrested if the plaintiff was successful, if the defendant succeeds, he may have an execution against the person of the plaintiff. Klop- penberg v. Neefus, 4 Sandf. 655. An execution cannot be issued against the person of a,woman § 556.] EXECUTION AGAINST THE PERSON. 479 unless an order of arrest has been granted and exe'cuted (§ 1488). Nor can an execution against the person be issued unless an execution against property has first been issued and returned unsatisfied, unless the defendant is in actual custody under an execution against his person or under an order of arrest (§ 1489J. Simultaneous executions against property and person cannot be issued without leave of court (§§ 1490, 1491)- The arrest of the debtor on final process operates as a satis- faction of the judgment while the arrest continues, but the judgment is not thereby absolutely extinguished. While it continues, no other or different satisfaction can be obtained (95 N. Y. 461; 58N.Y. 475)- CHAPTER XIX. COSTS. CHAPTER XXI., CODE OF CIVIL PROCEDURE. Costs are certain arbitrary sums which, with certain dis- bursements, may be awarded, in an action or special proceed- ing, to a party, to be paid by one or more of the other parties to the litigation, or out of the fund in controversy. Costs are awarded on the theory of indemnifying the successful party for the expense of the litigation in which it is determined that he was not in fault. A review of the history of the law respect- ing costs previous to the Code of Civil Procedure will be found in the opinion of Judge Marvin, in Downing v. Marshall (37 N. Y. 380). It is not within the scope of this work to ex- amine with minuteness the details of the subject. We shall limit our discussion of costs and fees to the sections of the Code relating to the awarding and enforcing payment of costs, fixing the amount of costs, and those relating to security for costs. AWARDING AND ENFORCING PAYMENT OF COSTS. (Co. Civ. P. §§3228, 3250.) § 557- When the plaintiff entitled to costs of course. (Co. Civ. P. § 3228.) — The plaintiff is entitled to costs of course upon the rendering of a final judgment in his favor in either of the following actions : 1. An action, triable by a jury, to recover real property or an interest in real property, or in which a claim of title to real property arises upon the pleadings or is certified to have come in question upon the trial. This paragraph, as well as all the remaining paragraphs of (480) § 557-] COST OK COURSE. 481 this section, relates solely to actions triable by a jury, — that is, to actions at law, and not to actions in equity (9 Hun 23). A justice's court has no jurisdiction of an action when the title to real property comes in question (§ 2863). A plaintiff can bring his action in such instances only in a court of record, hence his right to costs in such actions is not made dependent upon the amount of the recovery, as is the case in some of the remaining paragraphs. Indeed, the amount of the recovery may be a matter of no substantial consequence in some forms of action to test the title to real property. When the direct object of the action is not to recover real property or an interest in real property, the claim of title to real property must arise on the pleadings or must be certified to have come in question upon the trial. Hence, in an action of trespass, an allegation of title in the complaint not denied in the answer does not raise an issue of title, and does not entitle the plaintiff to costs unless he recovers more than fifty dollars. Lynk v. Weaver, 2,1 Civ. Pro. 284. See 81 N. Y. 233. 2. An action to recover a chattel. If the value of the chattel, or of all the chattels, recovered by the plaintiff, as fixed, together with the damages, if any, awarded to him, is less than fifty dollars, the amount of his costs cannot exceed the amount of the value and the damages. In such an action, the plaintiff is entitled to recover costs to an amount equal to the value of all the chattels, as fixed by the verdict, together with damages awarded for their detention, when those sums together are less than fifty dollars (15 Civ. Pro. 168). If these sums are for more than fifty dollars he recovers full - costs. When the plaintiff brings replevin for several articles, setting out but one cause of action, and the defendant sets up several defences, some covering the whole property and others applying only to a portion, and the plaintiff recovers only as to part of the property, and the defendant as to another part, the defendant is not entitled to costs (115 N. Y. 170), but plaintiff is (37 Hun 237). 3. An action specified in subdivisions 1, 3, 4, or 5 of § 2863 of the Code. But if in an action to recover damages for an assault, battery, false imprisonment, libel, slander, criminal conversation, seduction, or malicious prosecution, the plaintiff recovers less than fifty dollars damages, the amount of his costs cannot exceed the damages. 3 1 482 COSTS. [CH. XIX. The actions specified in subdivisions i, 3, 4, and 5 of § 2863 are certain actions of which a justice of the peace cannot take cognizance, and which therefore must be brought in a court of record. They are actions (subd. 1), where the people of the State are a party, except for one or more fines or penalties not exceeding twohundred dollars; (subd. 3),where the action is to recover dam- ages for an assault, battery, false imprisonment, libel, slander, criminal conversation, seduction, or malicious prosecution (in which the plaintiff, if successful for less than fifty dollars, recovers nomore costs than damages), orwhere it is brought under §§ 1837, 1843, 1868, 1902, and 1969 of the Code; or (subd. 4) when, in a matter of account, the sum total of the accounts of both parties proved to the satisfaction of the justice exceeds $400. To entitle a plaintiff who recovers less than fifty dollars to the costs, on the ground that accounts exceeding $400 are involved, he must prove that the sum of the account established on the trial exceeded that sum (21 Hun 257). Though the items set up by defendant, by any of the counterclaims arising out of the independent transactions unconnected, with the items con- stituting the plaintiff's cause of action, the various items of the plaintiff's claim and of defendant's counterclaim, so far as they are proved upon the trial, constitute accounts between the parties within this section (m N. Y. 514). (Subd. 5), where the action is brought against an executor or administrator as such. 4. A plaintiff is also entitled to costs of course when he recovers a final judgment in an action in which the complaint demands judgment for a sum of money only, except as specified above. But the plaintiff is not entitled to costs under this subdivision unless he recovers the sum of fifty dollars or more. Under this subdivision the plaintiff becomes entitled to costs of course in all common-law actions for money damages when he recovers fifty dollars or more. It is not the amount claimed in the complaint which determines the right to costs, but it is the amount of the recovery (7 Abb. Pr. N. S. 433; 13 State R. 302). This includes actions in tort as well as on contract (18 Civ. Pro. 248). § 558. When the defendant entitled to costs of course. (Co. Civ. P. § 3229.) — The defendant is entitled to costs of course upon the rendering of final judgment in an action spec- §§ 559> 5 6 °-] WHEN MORE DEFENDANTS THAN ONE. 483 ified in the last section, unless the plaintiff is entitled as therein prescribed. As a general rule, in all common-Jaw actions a sole defendant becomes entitled to costs on a final judgment in his favor unless the plaintiff is entitled to costs. Although the plaintiff, because his recovery is less than fifty dollars, is entitled to no more costs than damages in the actions in tort mentioned in the last section, the defendant does not thereby become entitled to recover costs in the action (13 Civ. Pro. 196). § 559- When there are more defendants than one. (Co. Civ. P. §3229.) — When in an action specified in §3228 against two or more defendants the plaintiff is entitled to costs against one or more, but not against all of them, none of the defend- ants are entitled to costs of course. In that case costs may be awarded, in the discretion of the court, to any defendant against whom the plaintiff is not entitled to costs where he did not unite in an answer and was not united in interest with a defendant against whom the plaintiff is entitled to costs. If the defendants all unite in one answer none of them is entitled to costs unless all are (14 State R. 236) ; and if they appear by one attorney, though they answer separately and all succeed, they are entitled to but one bill of costs (38 Super. 59). But if the defendants appear by separate attorneys, those who succeed are entitled to tax separate bills of costs (40 Hun 625). This right can only be defeated by showing that parties united in interest collectively appeared by separate attorneys in bad faith for the purpose of enhancing the costs against plaintiff (22 Hun 180). The discretion which this section gives to the court to award costs to any defendant against whom the plaintiff is not entitled to costs is limited to cases where the defendant to whom such costs are awarded is not united in answer or interest with the unsuccessful defendant. Such a case isHodg- kins v. Mead (17 Civ. Pro. 16). See note on this subject, 24 Abb. N. C. 374. §560. When costs are discretionary. (Co. Civ. P. §3230.) — Except as prescribed in §§ 3228 and 3229, the court may in its discretion award costs to any party upon the rendering of a final judgment. This section includes all equitable actions (31 Hun 381). The costs in such actions are discretionary, and 484 COSTS. [CH. XIX. the rule applies to costs at Special and General Term (71 N. Y. 280), and also at the Court of Appeals (63 N. Y. 221). In such actions, therefore, a party is not entitled to costs unless they are expressly awarded to him by the final judgment (55 Barb. 474). The general rules which govern courts of equity in awarding costs are stated by Follett, ]., in Couch v. Millard (41 Hun 212). The discretion of the trial court in awarding costs in an equitable action may be reviewed at General Term upon an appeal from the judgment (41 Hun 212), though not usually on appeal to the Court of Appeals (88 N. Y. 153). § 561. Costs where several actions are brought on same instrument. (Co. Civ. P. §3231.) — By §454, two or more persons severally liable on the same written instrument may all or any of them be included as defendants in the same action, at the option of the plaintiff (see ante, § 149). When two or more actions are brought in such a case, or otherwise for the same cause of action against persons who might have been joined as defendants in one action, costs other than dis- bursements cannot be recovered upon the final judgment by the plaintiff in more than one action, which shall be at his option. But this prohibition does not apply where jurisdic- tion of the person of the defendants not joined cannot be obtained with reasonable diligence in the court in which the action is brought. The manifest object of this provision is to prevent the unnecessary multiplication of actions for the purpose of making costs, and hence when the action is severed through no fault of the plaintiff, but by order of the court, the plaintiff may be entitled to bills of costs in both actions (24 Hun 135). § 562. Interlocutory costs on issues of law. (Co. Civ. P. § 3232.) — Where an issue of law and an issue of fact are joined between the same parties to the same action, and the issue of fact remains undisposed of, when an interlocutory judg- ment is rendered on the issue of law, the interlocutory judg- ment may, in the discretion of the court, deny costs to either party or award costs to the prevailing party, either absolutely or to abide the event of the trial of the issue of fact. In such a case, where other issues remain to be tried, after §§ S 6 3. 5 6 4-] COSTS ON ISSUES OF FACT. 485 an interlocutory judgment upon one, judgment cannot be entered until all the issues have been disposed of (45 Hun 246). The costs awarded by the interlocutory judgment cannot be recovered until final judgment is entered (22 Hun 570). But where the costs are awarded on interlocutory proceedings they may be enforced as if they were costs of a motion; § 779 of the act applies (§3236). § 563- Costs when there are several issues of fact. (Co. Civ. P. §3234.) — -In actions specified in §3228, when the com- plaint sets forth two or more causes of action upon which issues of fact are joined, if the plaintiff recovers upon one or more of the issues and the defendant upon the other or others, each party is entitled to costs against the adverse party, unless it is certified that the substantial cause of action was the same upon each issue ; in which case the plaintiff only is entitled to costs. In order that there may be correlative bills of costs under this section, it is necessary that there be separate causes of action set out in the complaint, and that an issue of fact be joined upon them, and that the defendant recover upon one or more of the causes of action. The authorities hold that a nonsuit against plaintiff upon one cause of action is not a " recovery " by the defendant and does not entitle him to costs (63 Hun 19 ; 61 Hun 354). The rule seems to be, that to enti- tle a defendant to costs in a case where he succeeds as to one of several causes of action, nothing short of a specific verdict in his favor as to such cause of action will suffice (18 Civ.P. 207). § 564. After discontinuance on answer of title. (Co. Civ. P. § 3235.) — When an action, brought before a justice of the peace, or in a district court of the city of New York, or a justice's court of a city, has been discontinued, as prescribed by law, upon the delivery of an answer showing that the title to real property will come in question, and a new action for the same cause has. been commenced in the proper court, the party in whose favor final judgment is rendered is entitled to costs, except that where final judgment is rendered therein in favor of the« plaintiff upon the trial of an issue of fact, the plain- tiff is entitled to costs unless it is certified that the title to real property came in question on the trial. 486 COSTS. [CH. XIX. This section refers to the proceedings in discontinuance of an action in a justice's court where the title to real property conies in question (§§ 2951, 2952). In such a case, since the inferior court is ousted of jurisdiction, costs are awarded in a court of record to the successful party, except that where the defendant is successful he must make it appear that the title did come in question on the trial. § 565. Costs on motion. (Co. Civ. P. §3236.) — Costs on a motion are discretionary, and so are costs on a reference to fix the damages on an undertaking or injunction {ante, § 265), or a special reference in interlocutory proceedings under §§ 827 and 1015. Costs under this section may be fixed by the court or judge, not exceeding ten dollars, besides necessary disburse- ments for printing and referee's fees (§ 3251), and they may be awarded either absolutely or to abide the event of the action (§ 3236); in which latter case, if the person to whom the costs are awarded is successful in the action, he may tax the motion costs. Motion costs may be collected by an execution against the personal property only of the person required to pay them (§ 779), and the effect of their non-payment has already been considered {ante, § 365). § 566. Costs on appeal from f.r.al judgment. (Co. Civ. P. §§ 3237, 3238.) — The sections we have been considering do not affect the recovery of costs on appeal (§ 3237). On appeal from a final judgment in a common-law action (§ 3228) the respondent is entitled to costs upon the affirmance, and the appellant upon the reversal, of the judgment appealed from, except that when a new trial is directed, costs may be awarded to either party absolutely or to abide the event, in the discre- tion of the court. In every other action, and also where the final judgment is affirmed in part and reversed in part, costs may be awarded to the successful party in the discretion of the court. In legal actions under the first subdivision, the costs follow the reversal or affirmance as matter of statutory right. No order of the court is necessary to give them, and no order of the court can rightfully take them away (30 Hun 246, affi'd 95 N. Y. 663). But when a new trial is ordered, costs may be awarded absolutely or to abide the event. When the General §§ 5 6 7> 568.] COSTS ON APPEAL. 487 Term grants a new trial, with costs to abide the event, the question has arisen whether the respondent, if successful on a new trial, may tax the costs of the appeal or whether the ap- pellant only is entitled to such costs. The authorities do not seem to be in harmony, some holding that the appellant only is entitled to costs if he finally succeeds (15 State R. 342), and others that either party, if finally successful, may tax them (11 Hun 309; 8 Daly 244); but when the costs are awarded to the appellant to abide the event, the respondent will not become entitled to costs of the appeal though he is successful upon a new trial (11 Hun 309). But in the Court of Appeals, where a judgment is reversed and a new trial ordered, with costs to abide the event, that means, in either a legal or an equitable action, that the party finally successful is entitled to the costs at the Trial Term, the General Term, and the Court of Appeals (126 N. Y. 658; 84 N. Y. 469). When the plaintiff is entitled to costs of course and the judg- ment is reversed at General Term, with costs to appellant to abide the event, and on appeal to the Court of Appeals the judgment is reversed and that of the Circuit affirmed, the plaintiff is entitled to costs of the appeal to the General Term as well as at the Court of Appeals (22 Hun 307 ; 92 N. Y. 359). § 567. Costs on appeal from interlocutory judgment or order. (Co. Civ. P. §3239.) — On an appeal from an interloc- utory judgment or an order in an action, costs are in the dis- cretion of the court, and may be awarded absolutely or to abide the event, except that when the appeal is taken from an order granting or refusing a new trial, and the decision upon the appeal refuses a new trial, the respondent is entitled of course to the costs of the appeal; and where an appeal is taken from the order refusing the new trial, and also from the judg- ment, neither party is entitled to the costs of the appeal from the order. When costs are awarded on an appeal from an order they may be collected by execution under § 779 (20 Civ. P. 209). § 568. Costs in special proceedings. (Co. Civ. P. §3240.) — Costs in special proceedings in a court of record, both in 488 COSTS. [CH. XIX. the court of original jurisdiction and on appeal, are discretion- ary unless especially regulated by statute, and when allowed they are at the same rates allowed for similar services in an action or on appeal from a judgment. § 569. Costs in action brought by the State on relation of a private individual, or for the benefit of a county, etc. (Co. Civ. P. §§ 3242, 3243.) — The policy of these sections is to render the person or civil authority for whose benefit an action is brought in the name of the' people of the State exclusively liable, or liable in the first instance for the payment of the costs awarded to the opposing party, and the method of col- lecting costs when awarded against the State is provided by § 3241. An execution cannot be issued against the people (§ 1985). §570. Costs against school trustees or supervisor. (Co. Civ. P. § 3244.) — Costs cannot be awarded in an action against the officers named for an act performed by virtue of, or under color of, office, or for a refusal or omission to perform a duty enjoined upon such an officer by law when the act, omission, or refusal might have been the subject of an appeal to the State superintendent of public instruction, or where it is certified that it appeared upon the trial that the defendant acted in good faith. But this section does not apply to an action for a penalty, or to an action or special proceeding to enforce a decision of the superintendent of public instruction. § 571. Costs against a municipal corporation. (Co. Civ. P- §3245.) — Costs cannot be awarded to the plaintiff in an action against a municipal corporation in which the complaint demands a judgment for a sum of money only, unless the claim upon which the action is founded was, before the com- mencement of the action, presented for payment to the chief fiscal officer of the corporation. It has been held that this provision does not apply to actions brought ex delicto (119 N. Y. 158; 106 N. Y. 667), nor for damages against a corporation because of a riot (4 Abb. Pr. N. S. 202), nor on proceedings to be relieved from assessments (78 N. Y. 601). § 572. Costs in an action by or against an executor or trustee. (Co. Civ. P. §3246.) — In an action brought by or § 57 2 -J COSTS AGAINST AN EXECUTOR, ETC. 489 against an executor or administrator in his representative capac- ity, or the trustee of an express trust, or a person expressly authorized by statute to sue or to be sued, costs must be awarded as in an action by or against a person prosecuting or defending in his own right, except as otherwise prescribed by §§1835 and 1836; but they are exclusively chargeable upon and collectible from the estate, fund, or person represented, unless the court directs them to be paid by the party personally, for mismanagement or bad faith in the prosecution or defence of the action. The sections referred to (§§ 1835, 1836) provide that where a judgment for a sum of money only is rendered against an exec- utor or administrator in an action brought against him in his representative capacity, costs shall not be awarded against him, unless it appears that the plaintiff's demand was presented within a time limited by a notice published as prescribed by law, requiring creditors to present their claims; and that the payment thereof was unreasonably neglected, or that the defendant refused to refer the claim as prescribed by law; and in that event the court may award costs against the executor or administrator, to be collected either out of his individual property or out of the property of the decedent, as the court directs, having reference to the facts which appear on the trial. When the action is brought in the Supreme Court, or in a superior city court, the facts must be certified by the judge or referee before whom the trial took place (§ 1836). The result of these sections is, that in actions against an executor or administrator in his representative capacity to recover a sum of money only, costs can be awarded against him only under the circumstances mentioned in § 1836. In all other cases, in actions by or against executors or trustees in their representative capacity, costs are awarded as against other litigants, except that they are collectible only out of the estate or fund represented, unless for special reasons the courts order them to be paid by the fiduciary personally. A trustee or executor cannot be charged personally with costs unless an order is made to that effect before judgment is entered (38 N. Y. 46); and where he is charged in his repre- sentative capacity alone, that is presumptively a determination that he is not liable individually (106 N. Y. 645). 490 COSTS. [CH. XIX. § 573- Costs where the action is prosecuted in the in- terest of another than the plaintiff of record. (Co. Civ. P. §3247.) — This section provides for two classes of cases: (1). Where the action is brought in the name of another, by a trans- feree of the cause of action, or by any other person who is bene- ficially interested therein ; that is, where some other person than the nominal plaintiff is the person who will reap the bene- fit of the suit, as where the claim sued upon has been trans- ferred by a non-resident to a resident to escape the necessity of giving security for costs, while the equitable and beneficial interest remains in the assignor (21 Civ. Pro. 272); or where the action was brought in a trade name under which the real plaintiff did business (21 Civ. Pro. 268), and where the action was brought in the name of one person at the instigation of, and for the direct benefit of, another, and the relief asked for will give the latter the fruits of the judgment (95 N. Y. 369; 69 N. Y. 96), — in these and such like cases the party so beneficially interested may be charged with the costs of an unsuccessful litigation. (2). In like manner, "where, after the commence- ment of an action, the cause of action becomes, by transfer or otherwise, the property of a person not a party to the action." As where a judgment has been assigned by the plaintiff and ic is reversed upon appeal (58 Hun 167); and whenever the cause of action is assigned absolutely, but not when it is assigned conditionally (75 N. Y. 421), the transferee is chargeable with costs. Inasmuch as the person chargeable with costs in these cases is not a party to the action, the proceedings to fasten the liability upon him, are by motion in the action, notice of which must be given to the party so chargeable, and if such an order is made, it may be enforced by proceedings for contempt (20 Civ. Pro. 397), except in a case where, if the person so charge- able had been a party, he would not have been personally liable for costs under §3246. This section, however, does not apply where the attorney becomes interested in the cause as compen- sation for services. § 574. Costs against an infant plaintiff. (Co. Civ. P. §3249.) — Where costs are awarded against an infant plaintiff, they may be collected by execution or otherwise from his guard- ian ad litem in like manner as if the latter was the plaintiff. It seems that where the infant sues without procuring the §§ 575-577-] CERTIFICATE FOR COSTS. 491 appointment of a guardian ad litem, no costs can be awarded against the infant (9 Civ. Pro. 48), and where a guardian ad litem has been appointed, but the infant comes of age and assumes the conduct of the suit before the trial, the guardian will not be responsible for costs (6 Abb. N. C. 353). Judgment is entered against the infant for the costs awarded the opposing party, but they are collectible only from the guard- ian ad litem (7 Abb. N. C. 399). § 575- Certificate for costs. (Co. Civ. P. § 3248.)— In some of the sections we have been examining, the right to costs is made to depend upon a certificate of certain facts, as in §§3 2 34, 3 2 35» 3 2 44, 3 2 5 8 > 286 3> subd. 4. In these cases, and also when extra costs are awarded under § 3258, the judge pre- siding at the trial or the referee must, upon the application of the party to be benefited thereby, either before or after the ver- dict, report, or decision is rendered, make a certificate stating the fact; such a certificate is the only competent evidence before the taxing officer. Such a certificate is required to charge an executor or ad- ministrator with costs in their representative capacity under § 1836, where the creditor has duly presented his claim and pa} r - ment has been unreasonably resisted or neglected, or the de- fendant has refused to refer the claim as provided by law (42 Hun 405). FIXING THE AMOUNT OF COSTS. § 576. The amount of costs generally. (Co. Civ. P. § 3251.) — This section specifies the sums which are awarded as costs for certain steps taken in an action. The details here given govern and limit the amount which can be given as costs against the party chargeable with costs, except in the special instances which we shall proceed to examine, in which in addi- tion to these sums further sums may be awarded. § 577. Additional allowance to plaintiff in certain cases. (Co. Civ. P. § 3252.) — Where the action is brought to foreclose a mortgage upon real property, or for the partition of real property, or to procure an adjudication upon a will or other instrument in writing, or to compel the determination of a claim to real property, or where in any action a warrant of 492 COSTS. [CH. XIX. attachment against property has been issued, the plaintiff, if a final judgment is rendered in his favor and he recovers costs, is entitled to recover, in addition to the costs prescribed in the last section, certain percentages to be estimated upon the amount found to be due upon the mortgage; or the value of the property partitioned, affected by the adjudication upon the will or other instrument, or the claim to which is deter- mined; or the value of the property attached not exceeding the sum recovered or claimed, as follows : Upon a sum not exceeding two hundred dollars, ten per centum. Upon an additional sum not exceeding four hundred dollars, five per centum. Upon an additional sum not exceeding one thousand dol- lars, two per centum. When such action is settled before judg- ment the plaintiff is entitled to a percentage upon the amount paid or secured upon the settlement at one-half these rates. The section makes further provision for special instances arising in foreclosure suits. It will be observed that the total allowance in any case under this section is sixty dollars, which sum the plaintiff may recover if the amount of the judgment or the value of the property specified is sixteen hundred dollars. Below that sum the allow- ance is graded by the percentages stated. The allowance is not discretionary under this section, but if the plaintiff becomes entitled to costs in the cases specified in this section, this allow- ance forms a part of his costs (14 How. Pr. 300). § 578. Additional allowance to either party in difficult case. (Co. Civ. P. §3253.) — In an action of foreclosure and partition, or in a difficult and extraordinary case where a defence has been interposed in any action, the court may in its discretion award to any party a further sum as follows: (i)j in an action of foreclosure, a^sum not exceeding two and one- half per centum upon the sum due or claimed to be due on the mortgage ; (2), in any other case specified in this section, a sum not exceeding five per centum upon the sum recovered or claimed or the value of the subject-matter involved. But the subsequent section (§ 3254) limits the allowance which may be made under the last subdivision of this section and under the preceding section, so that all the sums awarded to the plaintiff § S7 8 -] ADDITIONAL ALLOWANCE. 493 under § 3252, or to a party, or two or more parties, on the same side under the last subdivision of § 3253, cannot exceed in the aggregate $2,000. In a proper case allowances may be made both to plaintiffs and defendants under the last subdivision, provided they shall not exceed $2,000 on a side or $4,000 in the aggregate (31 Hun 10). We note as to this section that in foreclosure and partition suits an extra allowance may be granted though no defence has been interposed (49 State R. 303), and that the limit of an allowance in a foreclosure suit is $200, but in partition the limit is $2,000 on a side. In a difficult and extraordinary case an extra allowance can be granted (4 Hun 616 ; 45 Super. 591). A demurrer has been held to be a defence within the meaning of this section (30 Hun 466), but when the demurrer on the ground of want of jurisdiction is sustained, the court has no authority to grant an allowance (57 Hun 174). What cases may be regarded as difficult and extraordinary ? No comprehensive answer can be given to this question. The cases bearing upon the subject will be found collected in a note to Bank of Mobile v. Phoznix Ins. Co. (8 Civ. Pro. 212). The de- termination of the question whether a case is difficult and extraordinary rests almost wholly in the discretion of the judge granting the allowance, but the discretion is a legal one, and where the allowance is unreasonable in amount the appel- late court may review the order (37 N. Y. 380). The appellate court may also review the order when the power of the court to make it is brought in question. If the case is not one within the limitations of the statute, the order is unauthorized and will be reversed. Conaughty v. Saratoga Co. Bk , 92 N. Y. 401. The case must not only be extraordinary and difficult within the meaning of the statute, but it must be one in which the allowance can be based " upon the sum recovered or claimed, or the value of the subject-matter involved." The importance of the litigation in any other than its pecuniary aspect does not afford the basis of an extra allowance, and although a lit- igation may seem to come within the spirit of the provisions, if the subject involved is not capable of money valuation, or the value is not shown, an allowance is not authorized. Hence in an action brought to restrain a corporation from exercising its corporate franchises, in the absence of any evi- 494 COSTS. [CH. XIX. dence of the money value of the franchises, it was held that the allowance was improper (92 N. Y. 401). § 579- Costs upon adjournment of the trial. (Co. Civ. ■P- §3 2 5S-) — Upon an application by a party for an adjourn- ment of a trial before the court or a referee, he may be required, as a condition of the granting of the adjournment, to pay to the adverse party a sum not exceeding ten dollars, or in the City Court not exceeding five dollars and witness fees and other taxable disbursements, made or incurred, which are ren- dered ineffectual by the adjournment. § 580. What disbursements included in costs. (Co. Civ. P. §3256.) — This section specifies the disbursements which a party entitled to costs may include in his bill of costs. No disbursements can be allowed as taxable, except such as are embraced in the statute. It is not the policy of the Code to require the unsuccessful party to pay all the expenses of the litigation, but only such as are enumerated. These are : the legal fees of witnesses (which are regulated by §§ 3318 and 3319), and of referees (which are regulated by §§ 3296 and 3297), and of other officers which are specified in various statutes. The fifth title of the chapter we are considering treats gen- erally of the sums allowed for fees. There may also be taxed the reasonable compensation of commissioners taking depo- sitions ; the legal fees for publication when publication is directed pursuant to law; the. legal fees paid for a certified copy of a deposition or other papers recorded or filed in any public office, necessarily used or obtained for use on the trial ; copies of opinions and charges of judges ; the rea- sonable expense for printing the papers for a hearing where required by a rule of the court ; prospective charges for the expense of entering and docketing the judgment ; and the sheriff's fees for receiving and returning one execution thereon, including the search for property ; and such other reasonable and necessary expenses as are taxable according to the course and practice of the court or by express provision of law. The scope of our work does not require that we should enter into the details of these various amounts. §581. Double costs to plaintiff or defendant. (Co. Civ. P. §§ 3257, 3258.) — A plaintiff who recovers double damages §§ 5^2, 583.] COSTS ON SETTLEMENT. 495 or other increased damages does not thereby become entitled to more than single costs, except where it is otherwise specially prescribed by law; but a defendant in certain instances speci- fied in § 3258 may recover not only his costs as prescribed in § 3251, but in addition thereto one-half thereof. These are generally cases where certain public officers are sued for an act done by him by virtue of his office, or an alleged omission by him to do an act which it was his official duty to perform ; or against a person by reason of an act done by the command of such an officer or person, or in his aid or assistance, touching the duties of the office or appointment, or when the action was brought against the defendant for taking a distress, or making a sale, or doing any other act by or under color of authority of a statute of the State. In illustration of the persons who come within this section, it has been held that a sheriff, a constable (13 Wend. 280), a policeman (1 City Ct. R. 58), an overseer of the poor (20 Hun 172), an overseer of highways (21 How. Pr. 314), sued for an act done in an official capacity, are entitled to increased costs (2 Rumsey Pr. 530). The class of persons mentioned in the second subdivision of the section are those only who are called upon by an officer to assist him in the execution of process or in the performance of his duty, and who have no connection with, or interest in, the execution of the process, and are not parties to the action or proceeding in which it originates. Bradley v. Fay, 18 How. Pr. 481. § 582. Costs on settlement. (Co. Civ. P. § 3260.)— When an action specified in § 3228 is settled before judgment, no greater sum shall be demanded as costs than at the rates pre- scribed by § 3251. TAXATION OF COSTS. (Co. Civ. P. §§ 3262, 3267.) § 583. Taxation. — By the taxation of costs is meant the determination and allowance of the sum which may be awarded to a party as costs under the provisions of the statute. The party entitled to costs prepares a statement of the costs to which he considers himself entitled, a copy of which is served upon the adverse party or parties, as hereafter stated, 496 COSTS. [CH. XIX. with a notice that such bill of costs will be presented to the proper officer to be taxed at a time and place designated. At the time specified the parties appear before the taxing officer, to whom the necessary proofs, if any, are submitted, and the claims of the respective parties are presented and the amounts to be "allowed are settled and adjusted. § 584. How costs taxed and allowance computed. (Co. Civ. P. §3262.) — Costs must be taxed by the clerk, except that the court may direct that interlocutory costs, or costs in a special proceeding, be taxed by a judge. The clerk must insert in the judgment or final order the amount of the costs as taxed. In a case where the costs are in the discretion of the court the report or decision or direction of the court for final judgment upon a default or after a jury trial must specify which party or parties are entitled to costs, but the amount of the costs must be ascertained by taxation. The statutory allowances under § 3252 must be computed by the clerk upon the taxation; but the value of property required to be ascer- tained for that purpose must be ascertained by the court unless it has been fixed by the decision or report, or by the verdict of the jury upon which the final judgment is entered, except that in case of actual partition it must be determined by the com- missioners. Neither the court nor a judge has the power to tax a bill of costs. The clerk alone possesses this power, subject to review upon motion (8 How. Pr. 5; 3 Civ. P. 157). The clerk may tax any bill of costs presented to him, but unless there is a verdict of a jury, or a decision of the court or of a referee, or an order of the court awarding costs to the party presenting the bill, the clerk may not insert the costs so adjusted in the judgment (41 How. 346). In other words, where the right to costs is fixed by the statute the clerk may tax them and enter them in the judgment; when the costs are discretionary, or depend on the order of the court, he can enter them in the judgment only upon the authority of the court (15 Civ. P. § 333; 64 Barb. 417). The clerk has no power to determine the right of a party to the costs. When the bill of costs is presented to the clerk it must be supported by affidavits as to the disbursements. A charge for the attendance of a witness cannot be allowed without an affi- § 5 8 5-J NOTICE OF TAXATION. 497 davit stating the number of days of his actual attendance; and if travelling fees are charged, the distance for which they are allowed. A charge for a copy of a document or a paper cannot be allowed without an affidavit stating that it was actually and necessarily used, or was necessarily obtained for use. An item of disbursement in a bill of costs cannot be allowed in any case unless it is verified by affidavit and appears to have been necessarily incurred and to be reasonable in amount (§ 3267). If the clerk allows or disallows an item, the party against whom he rules should except to the ruling, and the exception will be noted by the clerk. Whether the taxation is opposed or not, the taxing officer must examine the bills presented to him for taxation ; must satisfy himself that all the items allowed by him are correct and legal; and must strike out all charges for fees other than the prospective charges allowed by law when it does not appear that the services for which they are charged were necessarily performed (§ 3266). Costs in excess of the amounts allowed by law cannot be taxed by the agreement of the attorneys for the parties to the action (23 Hun 171), and no item of disburse- ments can be lawfully allowed unless it is such a disbursement as the statute permits to be included in the costs, and is neces- sarily incurred and is reasonable in amount (29 State R. 841). The clerk can tax only such items as the statute allows, and he can tax them only at the rates allowed (37 N. Y. 380). § 585. Notice of taxation. (Co. Civ. P. §§3263, 3264.) — Costs may be taxed upon notice to the attorney for each adverse party who has appeared and is interested in reducing the amount thereof. Notice of the taxation must be served not less than five days before the taxation, unless the attorneys serving and served with the notice all reside or have their offices in the city or town where the costs are to be taxed, in which case a notice of two days is sufficient. A copy of the bill of costs specifying the items with the disbursements stated in detail must be served with the notice of taxation (§3263). Costs may also be taxed without notice; but where they are so taxed, notice of retaxation thereof must immediately afterward be given as above by the party at whose instance they were taxed. If such notice of retaxation is not given, the court must, upon the application of a party entitled to notice, direct 32 49 8 COSTS. [CH. XIX. a retaxation with costs of the motion to be paid by the party in default. The court may in its discretion, upon the application of a party interested, direct a retaxation of costs at any time. Any sum deducted upon a retaxation must be credited upon the execution or other mandate issued to enforce the judgment (§3264). § 586. Review of taxation. (Co. Civ. P. § 3265.)— The method by which the correctness of the clerk's computation and allowance of costs is brought before the court for its deter- mination is by motion for a retaxation. The motion is made on notice, and is heard upon the bill of costs, with the items objected to, the exceptions, the rulings of the clerk, and the affidavits presented to the clerk on his taxation (1 Civ. Pro. 306). The order made upon the motion may allow or disallow any item objected to before the taxing officer, in which case it has the effect of a new taxation, or it may direct a new taxation before the proper officer, specifying the grounds or the proof upon which the item may be allowed or disallowed by him (§3265)- The motion is heard upon those papers only which were before the clerk on the taxation (13 Civ. Pro. 256; 15 Civ. Pro. 126). SECURITY FOR COSTS. (Co. Civ. P. §§ 3268, 3279.) § 587. When defendant may require security for costs. (Co. Civ. P. §3268.) — The plaintiff may be required to give security that he will pay the costs of the action in a court of record if at the time the action is commenced he is: (1) A non- resident or (2) a foreign corporation, or (3) a person imprisoned under execution for a crime, or (4) the official assignee of a person so imprisoned ; the official assignee or trustee of a debtor ; or an assignee in bankruptcy when the action is brought upon a cause of action arising before the assignment, the appointment of the trustee, or the adjudication in bank- ruptcy, or (5) an infant whose guardian ad litem has not given such security, except where an infant prosecutes as a poor per- son under §§459; 469- The right of the defendant to require security for costs under this section is absolute when the application is made § 5 88 -] SECURITY FOR COSTS. 499 with due diligence (50 Hun 270; 15 Civ. Pro. 114). This right may be lost by delay in making the application (3 Civ. Pro. 428; 6 Id. [56; 7 Id. 200), but though the defendant may by laches have lost his right to require the plaintiff to give secur- ity before judgment, yet, after judgment for the defendant, if the plaintiff appeals, he may be required to give security for the costs (15 State R. 596). There is no very well defined rule as to what constitutes laches in a case of this kind. A variety of illustrative cases will be found cited in Sims v. Bonner (.2 1 Civ. Pro. 35s). Where there are several defendants appearing separately, they cannot each require security for costs. The statute only requires one bond, which is for the benefit of all (19 Civ. Pro. 76). The statute now permits an infant to sue as a poor person, and no security for costs can be required from the plaintiff in such a case, and it seems that a non-resident may be permitted to sue as a poor person without giving security for costs (18 Civ. Pro. 195). It will be observed that where the action is brought in cer- tain local courts (subd. 1) a plaintiff residing without the terri- torial jurisdiction may be required to give security for costs. Thus, when the action is brought in the City Court of New York by a person residing without the city, he maybe required to give the security, but that is not the rule when the plaintiff has an office in the city where he regularly transacts business in person (§ 3160; 8 Civ. Pro. § 138), but that limitation does not apply to a foreign corporation which cannot be said to trans- act business in person (15 Civ. Pro. 239). Where there are two or more plaintiffs the defendant cannot require security for costs to be given unless he is entitled to require it of all the plaintiffs (§ 3270). § 588. Security for costs for causes arising after action. (Co. Civ. P. § 3269.) — The defendant in a like action may require security for costs to be given where, after the com- mencement of the action, the plaintiff either (1) ceases to be a resident of the State, or when the action is brought in either of the local courts specified in the first subdivision of the last sec- tion, ceases to be a resident of the city or county, as the case may be, wherein the court is located; or (2) is adjudicated a bankrupt, or discharged from his debts, or exonerated from 500 COSTS. [CH. XIX. imprisonment pursuant to a law of the State or of the United States; or (3) is sentenced to the State prison for a term less than for life. Under this section, as under the last, the defend- ant cannot require the security unless he is entitled to require it of all the plaintiffs (§ 3270). § 589. Security in the discretion of the court. (Co. Civ. P. §3271.) — In an action brought by or against an executor or administrator in his representative capacity, or the trustee of an express trust, or a person expressly authorized by statute to sue or to be sued; or by an official assignee, the assignee of a receiver, or the committee of a person judicially declared to be incompetent to manage his affairs, the court may in its dis- cretion require the plaintiff to give security for costs. This -section does not apply to an action brought by the de- cedent in his life and after his death revived on behalf of his personal representatives (27 Hun 270). It was at one time held that the power to compel an executor or administrator to give security under this section was limited to cases of mis- management or bad faith {Darby v. Condit, 1 Duer 599), but the authority of the case cited is overthrown by Tolman v. S. B. & N. Y. R.R. Co. (92 N. Y. 353), holding that the discretion of the court is unlimited. §590. Order for security. (Co. Civ. P. § 3272.) — Except in a case provided for in the last section, when the order is dis- cretionary, the form of the order is provided by the Code. It may be made ex parte upon due proof by affidavit of the facts entitling the party to it, and it must require the plaintiff within a time specified either to pay into court the sum of two hun- dred and fifty dollars to be applied to the payment of the costs, if any, awarded against him, or at his election to file with the clerk an undertaking, and to serve a written notice of the payment, or of the filing, upon the defendant's attorney, and staying all other proceedings on the part of the plaintiff, except to receive or vacate the order until the payment or filing and notice thereof, and also, if an undertaking is given, the allowance of the same. The distinction between §§ 3268 and 3271 appears to be that, under the section first named, the defendant as a right may require the plaintiffs to file security for costs, and that §§ 59 1 . S9 2 -] THE UNDERTAKING. 501 under § 3271 the court may in its discretion require such security to be given (1 Civ. P. 15). When the application is made under the first of these sections an absolute order may be granted ex parte (49 Hun 64), though it is said in Churchman v. Merritt (50 Hun 270) that it depends upon the discretion of the judge whether an absolute order will be made in the first instance, or whether the party must proceed by notice or order to show cause. When the order directs the plaintiff to give security for costs which have already accrued, it must be made on notice (49 Hun 64). As we have already seen, the applica- tion may be denied on the ground of laches. The order must require the plaintiff, within a time specified, either to pay into court the sum of two hundred and fifty dollars, to be applied to the payment of the costs, or at his election to file with the clerk an undertaking. It will be observed that the amount of the deposit is limited, and it seems that a larger deposit cannot be ordered in the first instance (29 Hun 657). The order will also direct a stay of all proceedings on the part of the plaintiff, except to review or vacate the order until the payment or filing and notice thereof, and also, if an under- taking is given, until the allowance of the same. § 591. The undertaking — Justification of sureties and allowance. (Co. Civ. P. §§3273, 3274, 3275.) — The undertak- ing must be executed by one or more sureties, and must be to the effect that they will pay to defendant all costs which may be awarded to him in the action not exceeding a sum specified in the undertaking, which must be at least two hundred and fifty dollars (§ 3273). The sureties must justify, if the defend- ant excepts to them, as provided in § 3274, and the rules as to the justification of bail under § 580 apply. Where the judge finds the sureties sufficient, he must annex the written exam- ination, if any, to the undertaking, endorse his allowance there- on, and cause them to be filed with the clerk. Where the defendant fails duly to except to the sureties, the undertaking is deemed allowed, and must be endorsed and filed in like manner (§ 3275). § 592. Order for additional security. (Co. Civ. P. § 3276.) — At any time after the allowance of the undertaking, or after notice of the payment of the deposit into court, the court may 502 COSTS. [CH. XIX. require the plaintiff to give an additional undertaking or make an additional payment into court upon satisfactory proof, by affi- davit, that the sum specified in the undertaking, or the amount of the deposit, is insufficient, or that one or more of the sureties have died or become insolvent, or that his or their circum- stances have become so precarious that there is reason to apprehend that the undertaking is insufficient for the security of the defendant. This section was put into its present form in 1891. Previous to the amendment of that year the court had no power to direct an increase of the deposit (112 N. Y. 310). § 593. Effect of failure to give security. (Co. Civ. P. § 3277.) — When the plaintiff fails to comply with an order requiring him to give security for costs, or to procure the allowance of an undertaking, the defendant is entitled to a judgment dismissing the complaint, and in his favor for costs. The defendant may apply therefor as upon a motion. There is no authority, however, for any further judgment in favor of defendant, except for the dismissal of the complaint and costs. The defendant cannot have judgment upon a counterclaim which he has set up in his answer (50 Hun 209). § 594. Liability of attorney for costs. (Co. Civ. P. § 3278.) — When the defendant is entitled to require security under § 3268, the plaintiff's attorney becomes liable for the defendant's costs, to an amount not exceeding one hundred dollars, until security is given. He may relieve himself, how- ever, from this liability by filing and procuring the allowance of an undertaking for costs. This liability attaches to an attorney who is substituted as attorney for plaintiff denying the course of the action (14 St. R. 758), and it seems that the outgoing attorney is not relieved of the liability by the substitution of another attorney (1 L. Bui. 55). This liability exists although no order for security has been made, and is not relieved by the laches of defendant in apply- ing for an order for security (2 Civ. P. 108). The only method in which the attorney can relieve himself from this liability is giving the undertaking as provided in the section. CHAPTER XX. THE SUPERIOR CITY COURTS AND THE CITY COURT OF NEW YORK. TITLES III. AND IV. OF CHAPTER III., AND TITLE I. OF CHAPTER XX., CODE OF CIVIL PROCEDURE. Having now completed the history of a personal action, assuming it to have been brought in the Supreme Court, it seems proper to consider in like general outline some of the peculiarities which attach themselves to the jurisdiction and practice in such an action in some of the principal courts of record, other than the Supreme Court. THE SUPERIOR CITY COURTS. § 595- The courts included in this designation and their constitutional powers. — The Superior City Courts are col- lectively the Court of Common Pleas for the City and County of New York, the Superior Court of the City of New York, the Superior Court of Buffalo, and the City Court of Brooklyn (§ 3343, subd. i). These courts are recognized by section 12 of Article VI. of the State Constitution, which provides as follows : " The Su- perior Court in the City of New York, the Court of Common Pleas for the City and County of New York, the Superior Court of Buffalo, and the City Court of Brooklyn are continued with the powers and jurisdiction they now severally have, and such further civil and criminal jurisdiction as may be conferred by law." This article in this form was adopted December 6, 1869, and the powers of the courts named thereby became incapable of diminution. The legislature was thus deprived of the power (503) 504 THE SUPERIOR CITY COURTS. [CH. XX. to take away any part of the jurisdiction which these courts had at the time of the adoption of this article {Alexander v. Bentiett, 60 N. Y. 204), and it has also been held that this pro- vision superseded section 12 of Article XIV. of the Constitu- tion, which declared that " all local courts established in any city or village, including the Superior Court, Common Pleas, Sessions, and Surrogates' Courts of the City and County of New York, shall remain, until otherwise directed by the legis- lature, with their present powers and jurisdictions." Popfinger v. Yutte, 102 N. Y. 38. In 1873 the legislature passed an act providing that the Superior City Courts should thenceforth have original juris- diction at law and in equity concurrent and coextensive with the Supreme Court of all civil actions, and of all special pro- ceedings of a civil nature (Laws of 1873, chap. 239). It was held, however, in the case of Landers v. Staten Island R.R. Co. (53 N. Y. 450) that this enactment did not extend the territorial jurisdiction of these courts, but merely enlarged their juris- diction as to subject-matter. In that case it was held that the City Court of Brooklyn, notwithstanding the sweeping terms of the act of 1873, had no jurisdiction of a corporation not having a place of business or located in the city of Brook- lyn when the cause of action did not arise in that city, and the summons was served without the city. We observe, therefore, that the Superior City Courts are constitutional courts as distinguished from statutory courts. That their jurisdiction, as it existed in 1869, cannot be impaired by legislation, and that while these courts are local and limited in their powers as to acquiring jurisdiction of the person, yet as to the subject-matter of their jurisdiction the legislature has power to extend their authority. § 596. General jurisdiction of the Superior Courts. (Co. Civ. P. § 263.) — Section 263 gives in detail the cases to which the civil jurisdiction of the Superior City Courts extends. This section may be epitomized as follows: These courts in general have jurisdiction (1). Of real actions where the real property to which the action relates is situated in the city where the court is located. (2). Of any action for any other cause, where the cause of action arose within that city, or where the defendant is a resi- § 59 6 -] JURISDICTION OF SUPERIOR COURTS. 505 dent of that city, or where the summons is personally served upon the defendant therein, or where the action is brought to recover a penalty, or of any other cause of action given by the charter, by-laws, or ordinances of that city. (3). Of an action to recover damages for injuries to real prop- erty, or for a breach of a contract express or implied relating to real property or a chatcel real where the real property is situated in the city, or when the defendant is a resident of or is served within that city. (4). Of an action to recover a chattel; foreclose a lien upon personal property ;, or to recover damages for an injury to per- sonal property, where the property is situated in the city at the time the action was commenced. (5). Of a judgment creditor's action where the judgment was recovered in the same court. See Popfingerv. Yutte, 102 N.Y. 38. (6). Of an action brought by a resident of a city against a natural person being a non-resident of the State. (7). Of an action brought by a resident of a city against a foreign corporation: 1st, to recover damages for a breach of contract express or implied where the contract was made, or the cause of action arose within the city ; 2d, where a warrant of attachment has been levied on property within the city; 3d, where the summons has been served within the city upon an officer of the corporation. (8). Of the custody of the person and property of a person judicially incompetent, residing within the city. For the ap- pointment of a committee of the person and property of such person, or for the sale of his real property within the city. For the sale of the property or voluntary dissolution of a domestic corporation whose principal place of business is located within the city, or for the sale of real property within the city, of a domestic corporation wherever located. (9). Of any special proceeding of which the Supreme Court has concurrent jurisdiction, where the person against whom it is brought is a resident of the city, or the mandate is person- ally served within the city, or all the acts upon which it is founded were done within the city, or the subject thereof is situated within the city. The object of this section was to extend the jurisdiction of the courts as broadly as the constitutional provisions would warrant. 506 THE SUPERIOR CITY COURTS. [CH. XX. In Wheelock v. Lee (74 N. Y. 495) it was held that the jurisdic- tion of a Superior City Court was limited to cases in which the cause of action arose within the territorial limits, and cabes in which the subject of the action was situated, or the party pro- ceeded against resides or was served with process within those limits, and that some one or more of these elements of locality must exist to confer upon the court jurisdiction; and it was held in the same case, that where no other ground of jurisdic- tion exists, the service within the county is a jurisdictional fact, and that its omission is not cured by an appearance by the defendant if the want of jurisdiction is pleaded by defendant. McCarty v. Parker, 26 Abb. N. C. 235; Kirchner v. Flint Co., 19 Civ. Pro. 368. By reason of the constitutional affirmance of the jurisdiction of these courts as it existed at the time of the adoption of the judiciary article of the Constitution (Art. VI.), it has been held that so much of the fifth subdivision of § 363 as purports to confine the jurisdiction of these courts in actions by judg- ment creditors to actions on the judgments of the same court is unconstitutional (Popfinger v. Yutte, 102 N. Y. 38); and that the limitation contained in the seventh subdivision of the sec- tion of the jurisdiction of these courts in actions against for- eign corporations to actions brought by a resident of the city is likewise unconstitutional (Flynn v. Cent. R. of N. J., 27 Abb. N. C. 31). When the court would otherwise have jurisdiction in an action against a foreign corporation, it is enough if the plaintiff is a resident of the State. It is not necessary that he should be a resident of the city (see 112 N. Y. 315; 49 Super. 2 34> A corporation whose principal place of business is estab- lished by statute, or by its articles, or by actual location within the city, is a resident of the city for the purposes of the juris- diction of these courts, and the service on such a corporation confers jurisdiction (§ 264). Where there are several defendants, and some of them are residents of the city, and some are not, so that the court may acquire jurisdiction of some and not of others, if the obligation upon which they are sued is joint, the court has jurisdiction of the action as against them all; but where the liability is several, it has jurisdiction only of those of whom it has acquired personal jurisdiction ; and where the action is § 59^-] JURISDICTION OF SUPERIOR COURTS. S°7 brought against a public officer, or a corporation, together with one or more persons, and the action is founded upon an official act, or an act or omission of a corporation, and the court has jurisdiction of the officer or the corporation, it may also proceed against the other defendants (§ 265). When a Superior City Court has jurisdiction of joint debtors, if one is served within the jurisdiction, the court has jurisdic- tion of the action as against all the persons so jointly liable, and judgment may be taken against all of them under § 1932 {Priessenger v. Sharp, 39 State R. 260); and it has been held that when the defendants are sued as jointly liable on contract, if one of the defendants is served within the territorial jurisdic- tion of the court, the other defendants may be served person- ally in any other county of the State (13 How. Pr. 254; 7 Bosw. 685; 6 Daly 546); but these decisions seem to be in conflict with Hoag v. Lamont (60 N. Y. 96), in which case it was held that while it might be that where one of the joint debtors was served within the territorial jurisdiction of a local court, a judg- ment in favor of plaintiff against all the defendants could be entered under § 1932, yet that a personal judgment against a non-resident served without the jurisdiction and otherwise not subject to jurisdiction could not be had merely because a co-defendant jointly liable had been served within the jurisdic- tion. When the liability is several as well as joint, the case is expressly excepted from the statute. When the court has jurisdiction because the cause of action arose within the city, or because of the location of the subject- matter, the process runs through the State. Gemp v. Pratt, 7 Daly 197; 38 Super. 7; 2 Duer 635. The jurisdiction of the Superior City Courts is always pre- sumed, and need not be specially set out or pleaded (§ 266). When it has jurisdiction, that jurisdiction is as complete and ample for all purposes as the Supreme Court possesses in a like case, and the powers of the judges in a case of which they have jurisdiction are the same as those of a Supreme Court judge (§267). Sections 269, 270, 271, 272 provide for the removal of a cause out of these courts into the Supreme Court for the purpose of changing the place of trial. Thus, an action which ought to be tried in Monroe County might be brought in the Superior S08 THE SUPERIOR CITY COURTS. [CH. XX. Court of this city. In order to remove it to Monroe County it would be necessary to have the cause removed to the Supreme Court. These sections provide the mode of effecting that result. Although a summons in the Superior City Court cannot be served outside of the city, yet other process out of the court, as, for instance, a subpoena, runs into any part of the State (§278). The judges of this court have power to make rules and regu- lations governing its general practice. The terms of the court are divided, as in the Supreme Court, into the General Term, held by three judges; a Special Term, held by a judge without a jury; and a Trial Term, held by a judge and jury. The Gen- eral Term exercises appellate jurisdiction in the same way as the General Terms of the Supreme Court. The General Term must be held by at least two judges, and at least two must con- cur in the result, otherwise a rehearing must be ordered. That is the rule, also, in the Supreme Court (§281). The several justices of these courts have within their territorial jurisdiction the same powers which a judge of the Supreme Court has. § 597. Superior Court of the City of New York.— This court is said to have had its origin in the pressure of business in the Supreme Court at Circuit in the city of New York occa- sioned by the cases growing out of the heavy bank failures in 1826 (Graham on Courts, 115). It was established by an act passed March 31, 1828 (Laws of 1828, chap. 137), and consisted of a chief-justice and two associate justices. As at present constituted, it consists of a chief-justice and five associate jus- tices (Cons., Art. VI., sec. 12; Co. Civ. P. § 287). The Superior Court of the City of New York has no special jurisdiction other than such as it may exercise in common with other Superior City Courts under the powers above considered. The business in this court is transacted in all particulars as in the Supreme Court. Trials in jury cases are had at Special Terms for the trial of issues of fact with a jury, and equity causes are heard at a Special Term. Appeals lie to the General Term of this court from a judgment or order in the same instances in which such appeals may be taken in the Supreme Court, and an appeal lies to the Court of Appeals from the determination of the General Term as in the Supreme Court. §§ 59 8 > 599-] COMMON PLEAS OF NEW YORK. 509 § 598. Court of Common Pleas for the City and County of New York. — This court, as at present organized, is com- posed of six judges, one of whom is appointed chief judge (§ 287). It has certain special jurisdiction in addition to its general powers as a Superior City Court. Thus, appeals lie to the General Term of this court from the General Term of the City Court of New York, and also from the judgments of the sev- eral District Courts in the city of New York. It has exclusive jurisdiction of an application by an insolvent debtor for his discharge (§2150). A concurrent jurisdiction of the Supreme Court of special proceedings under general assignment for the benefit of creditors. It has jurisdiction to release imprisoned debtors (§ 2204). An exclusive control in the city of New York of proceedings to change the name of a person (§ 2410). It has power to vacate and set aside a judgment upon a for- feited recognizance, and to remit a fine or forfeited recogni- zance in a case where a County Court can remit the same (§ 2 86). The same distribution of business into Special and General Terms is found in this court as in the Superior Court, and the practice is in all particulars similar to the practice in the Supreme Court. Appeals may be taken to the Court of Appeals from the determinations of the General Term as in the Supreme Court, but no appeal lies to the Court of Appeals in an action commenced in the City Court or in a District Court of the city of New York from the determination of the General Term of the Common Pleas, unless that court permits the appeal to be taken (§ 191). § 599. Superior Court of Buffalo and City Court of Brooklyn. — These courts consist of three judges, one of whom is appointed chief judge. In addition to the jurisdic- tion which the Superior Court of Buffalo has in common with other Superior City Courts, its jurisdiction is extended by § 292 ; but the City Court of Brooklyn has no additional authority beyond that which it exercises under the general powers conferred upon Superior City Courts. CITY COURT OF NEW YORK. This court is not a Superior City Court. It is not created directly by constitutional decision, but by legislative enactment. 5IO CITY COURT OF NEW YORK. [CH. XX. pursuant to the provisions of the Constitution that "Inferior local courts of civil and criminal jurisdiction may be estab- lished by the legislature" (Art. VI., § 19). It was formerly entitled the Marine Court of the City of New York, under which title it is still referred to in the Code. The change of name was made in 1883 (Laws of 1883, chap. 26). A sketch of the history of the court will be found in the opinion of Judge Rapallo in Hutkoffv. Demorest (103 N. Y. 377). § 600. Jurisdiction. (Co. Civ. P §§315, 316.) — The jurisdic- tion of this court extends — (1). To an action against a natural person, or a foreign or domestic corporation, where the complaint demands judgment for a sum of money only, or to recover one or more chattels with or without damages for the taking or detention thereof. (2). An action to foreclose a mechanic's lien on real property in the city of New York. (3). To foreclose or enforce a lien upon'a chattel for a sum not exceeding $2,000. (4). To take and enter a confession of judgment for a sum not exceeding; $2,000. The jurisdiction is limited by the amount for which judg- ment can be rendered, which cannot exceed $2,000, in the case of a demand for a sum of money, except where the action is brought upon a bond given in an action or special proceeding, or to recover damages for a breach of promise of marriage, or in a marine case. Where the action is brought upon a bond or other contract, the judgment must be for the sum actually due, without regarding a penalty; and where the money is payable in installments, successive actions may be brought for install- ments as they become due. In an action to recover one or more chattels, a judgment cannot be rendered in favor of the plaintiff for a chattel or chattels the aggregate value of which exceeds $2,000 (§316). The jurisdiction is not limited by the amount claimed, but by the amo'int recovered. Judgment may be claimed for any amount, but the recovery can only be to the extent of $2,000 and costs. It has no equity jurisdiction (13 St. Rep. 76). But equitable, defences may be set up as in other courts. Mack v. Kitsell, 20 Abb. N. C. 293. Its jurisdiction is not defeated nor impaired by the §6oi.] CERTAIN SECTIONS OF CODE NOT APPLICABLE. 5 1 1 fact that the title to real property is involved in the pleadings or presented by adjudication. McCrea v. Jacobs, 19 Abb. N. C. 188. It has no jurisdiction against an executor or adminis- trator. Matter of Radde, 30 St. Rep. 741. But an action may be brought in this court by an executor or administrator. The practice in the City Court is regulated by the sections of the Code, beginning with §3159. The court consists of six judges, of whom one is the chief- justice. There is a General Term having appellate jurisdiction, and Trial Terms at which cases are tried bv a judge and jury. A judge sits daily in Chambers to dispose of motions and ex parte business. The mandates of this court can be executed only within the city of New York, except that an execution upon a judgment for a sum exceeding $25 can be issued to the sheriff of any county in which the judgment has been docketed. A subpoena can be served in either of the counties of Richmond, Kings, Queens, or Westchester, and a warrant of attachment against a disobeying witness may be issued to either of those counties. Obedience to the order of the court may be enforced in any county, and an order to show cause why a person should not be punished for contempt may be served in any part of the State, and a warrant in such a case may be executed by the sheriff of the city, or by a marshal of the city, in any part of the State. § 601. Certain sections of the Code do not apply to this court. (Co. Civ. P- §3160.) — In general the practice in the City Court corresponds with the practice in the Supreme Court, but there are some noticeable departures. It is in the first place provided that certain sections of the Code shall not apply to actions and special proceedings in this court. These sections are those relating to the service of summons by publi- cation (§438); those for the granting of an injunction (§§ 611 to 619); the section relating to the cases in which an attachment may issue (§636); those relating to the ordering of a reference of special matters (§ 827), or of the issues in an action (§ 1013), or of specific questions of fact in an action (§ 1015); but the court may of its own motion, or upon application of either party without the consent of the other, by order direct a reference to determine and report upon a question of fact arising upon 512 CITY COURT OF NEW YORK. [CH. XX. a motion in any stage of the action (§ 3172). The application of the sections relating to security for costs in the case of non- residents is qualified by the provision that the plaintiff in an action brought in this court, who has an office for the regular transaction of business in person within the city of New York, is deemed a resident of that city ; and the provisions for security for costs do not apply to marine cases, or when the plaintiff has given security on obtaining a short summons as hereafter pointed out. In lieu of some of the sections which are thus made inapplicable, other provisions are made, but in some instances the omission is not supplied. Thus this court has no power to issue an injunction or to order a reference for the trial of an issue, the provisions upon these subjects, as we have seen, having been declared inapplicable. § 602. Time for service of certain notices in actions in this court. (Co. Civ. P. § 3161.) — The ordinary steps in an action may be taken more expeditiously in this court than in the higher courts. Thus, notice of justification of sureties on an undertaking given by the plaintiff as security for defend- ant's costs is to be not more than two days. Notice of appli- cation for judgment on a frivolous pleading under § 537, to strike out an answer or defence as shown under § 538, an application to the court for judgment by default or of the execution of a reference or writ of inquiry on the entry of judgment, must be on notice of not less than two days. Notice of justification of bail, not less than two nor more than ten days; notice of motion, not less than four days, except in the cases mentioned above for shorter notice, and an order to show cause may prescribe a shorter notice. The time for serving a notice of trial of an issue of fact or law, and notice of a hearing of an appeal, and generally the time for serving a notice not otherwise expressly prescribed, is five days. Costs may be taxed in two days' notice, but where all the attorneys, serving and served, reside or have their office in the city of New York, one day's notice is sufficient. §603. Notice of trial— Note of issue. (Co. Civ. P. §3162.) — Notice of trial of an issue triable at a term of the court, or of the hearing of an appeal to the General Term of the court, may be given for any day of the term. A note of issue must be §§604,605. RELIEF FROM IMPRISONMENT. 513 filed at least two days before the day or the commencement of the term for which the notice of trial or hearing is given, and if it relates to the trial of an issue of fact or law, it must, in addition to the matters required to be stated in a note of issue, generally state the day or time for which the notice has been given. §604. Relief from imprisonment. (Co. Civ. P. § 3163.) — This court has a special power to relieve a party confined in jail under an order of arrest or execution where it is made to appear that he is physically unable to endure the confinement, and that he cannot procure bail or the necessary sureties on a bond for the jail liberties. In such case the court, or a justice thereof, may, in the exercise of discretion, direct the sheriff to release the prisoner from custody, and the judgment debtor cannot again be taken on execution upon the judgment though it may be enforced against his property. § 605. Summons — Time to answer. (Co. Civ. P. §3165.) — The summons does not differ from the general form of sum- mons prescribed by § 418, except that the time within which defendant is required to serve his answer is six days after ser- vice instead of twenty. This section provides for two departures from the prescribed time of six days. The first is where by special order the court reduces the time to two days. This may be done when all the plaintiffs or all the defendants reside without the city. In order to obtain this short summons an affidavit must be pre- pared setting out the fact just stated, and upon such an affi- davit an order may be obtained from a justice of the court directing that the defendant be summoned to answer within a shorter time than six days, and not less than two days after the service of the summons, and the summons is then drawn accordingly. The judge may, if he thinks proper, require from the plaintiff, before granting the order, an undertaking, with one .or more sureties, conditioned that plaintiff will pay any judgment that may be recovered against him in the action. The penalty must be not less than $200. The order shorten- ing the time must be served with the summons. The pro- vision which we have noted above, to the effect that one having a place of business in the city where he transacts business 33 514 CITY COURT OF NEW YORK. [CH. XX. regularly in person, does not apply to this section (21 Abb. N. C. 93). The second departure from the six-day rule occurs in the instance in which the summons is served by publication. In that event the summons must be amended so as to substitute ten days in place of six (29 State R. 713). In like manner the time to serve a complaint or reply in this court corresponds with the time limited to answer in the sum- mons, but the defendant has ten days after arrest within which to answer (§ 3166). § 606. When warrant of attachment may issue. (Co. Civ. P. §3169.) — The right to a warrant of attachment in this court arises upon precisely the same causes of action as in the general provisions we have examined {ante, § 271), but the fol- lowing grounds of attachment are added or varied : 1. Here an attachment may be obtained against a domestic corporation whose principal place of business is not within the city of New York, and since it has been held that the principal place of business of a corporation for the purpose of this statute is the place designated in the certificate of incorporation, although the company may carry on business and have an office in the city, an attachment may issue against it when the place of business designated by the certificate as the prin- cipal place of business of the corporation is without the city. Blumenthal v. Hudson Riv. Boot cV »S. Co., 40 State R. 232. This affords a remedy by attachment in this court in a very ex- tended class of cases. Again, the provisions with regard to absconding and con- cealed debtors are somewhat qualified. To obtain an attach- ment upon these grounds it must appear that the defendant, being an adult and a resident of the city of New York, has departed therefrom with intent to defraud his creditors, or to avoid service of the summons, or keeps himself concealed therein with like intent; or that after proper and diligent effort to ascertain the place of the sojourn of such a resident adult defendant, the same cannot be ascertained. So, when the ground of attachment is the fraudulent removal of assets, it is enough to show that the property has been re- moved from the city with intent to defraud creditors. There is an independent ground of attachment in this court which is not included in the grounds of attachment in the §§607-609.] SERVICE OF SUMMONS BY PUBLICATION. 515 Supreme Court or in the Superior City Courts. It is as follows: "That the defendant, being an adult and a resident of that city (New York), has been continuously without the United States more than six months next before the granting of the warrant, and has not made a designation of a person upon whom to serve a summons in his behalf as prescribed in §430 of this act, or a designation so made no longer remains in force" (Co. Civ. P. § 3169, subd. 6). Again, an attachment may be issued against a resident of the State who is not a resident of the city, if he has not an office in the city where he regularly transacts business in person. If the defendant has an office in the city where he regularly transacts business in person, this court cannot issue an attach- ment against him on the ground that he is not a resident of the city. Fielding v. Lucas, 87 N. Y. 197. But it is not enough that one should have a place of busi- ness in the city where business is conducted for him by others, unless he attends regularly in person. Bowman v. Ferine, 23 Abb. N. C. 236. § 607. Service of summons by publication. (Co. Civ. P. §3170.) — -Service of a summons by publication is allowed in this court only in one instance, and that is where a warrant of attachment is issued and the general provisions are modified so as to adapt them to the peculiar jurisdiction of the court. § 608. Commission to take testimony. (Co. Civ. P. § 3 T 7 X — Since a subpoena issued from this court does not run beyond the city of New York, the counties of Richmond, Kings, Queens, and Westchester, the provisions of the Code in reference to taking the testimony of witnesses by commission without the State are made applicable in this court to the territory in the State into which a subpoena does not run, and the commission may be executed within as well as without the State. The interrogatories to be attached to the commission can be settled only by a justice of the court. § 609. Judgment in favor of workingwomen. (Co. Civ. P. §3167.) — It is provided that in an action brought in this court (as in the several district courts of the city of New York) Sl6 CITY COURT OF NEW YORK. [CH. XX. by a female to recover for services performed by her, if the plaintiff recovers a judgment for a sum not exceeding fifty dollars, no property of the defendant is exempt from levy and sale upon an execution issued thereon; and if the judgment is not satisfied upon the execution against property, an execu- tion against the person of the defendant may be issued upon which he is not entitled to be admitted to the jail liberties, but he can be kept in confinement only fifteen days. § 610. Counterclaims. (Co. Civ. P. §3174.) — A counter- claim may be interposed in an action brought in this court without respect to the amount thereof, and judgment there- upon in favor of the defendant may be rendered for any sum ; but the defendant cannot set up by way of counterclaim a cause of action on contract of which the court has not juris- diction, except that in an action brought by an executor or administrator any counterclaim may be interposed which could be interposed in a like action brought in the Supreme Court. §611. Marine cases. (Co. Civ. P. §§3177-3187.) — This court has a special jurisdiction in actions to recover seamen's wages, and for assault and imprisonments on merchant ships committed on the high seas or in any place without the United States (§ 3177). The procedure is extremely summary. The plaintiff may apply in either of the cases named for an order of arrest to accompany the summons, and the justice may grant the order either with or without security (§ 3177). The order of arrest requires the sheriff to bring the defendant forthwith before the court at Chambers, or if the court is not in session, to hold him to bail for his attendance the next day at Chambers, and the summons is returnable in like manner (§ 3178). Upon the de- fendant's being brought before the court, if the plaintiff fails to appear, or if defendant has been held to bail to appear at the opening of court, then at the opening of court, if either party fails to appear as provided by § 3185, a default may be taken and judgment given. If the parties appear they may plead either orally or in writing, and if either party desires a trial by jury it must then be demanded or it will be waived (§ 3 I 8s)- If a jury is not demanded the judge may proceed forthwith to hear and decide the cause. If a jury is demanded, §§612,613.] APPEALS TO COMMON PLEAS. 517 the judge may direct the trial to proceed at any trial term then in session, and the cause will have a preference on the calendar (§ 3186), and the judge may impanel a jury and try the cause at Chambers (City Ct. Rules, Rule 19). When the tort is committed on board a foreign vessel on the high seas, since the vessel may be regarded as within the juris- diction of the foreign country, the court will not issue process in such cases unless it appears: (1). Either that the plaintiff or defendant has been regularly discharged from the ship by competent authority; or (2). That either of the parties is a resident of the United States (City Court Rules, Rule 20). § 612. Appeals to the General Term. (Co. Civ. P §§3188, 3189, 3190.) — Appeals are taken to the General Term of this court from final judgments in the same instances and in the same manner as such appeals may be taken in the Supreme Court (§ 3188). Appeals from interlocutory judg- ments and orders may also be taken to the General Term of this court as in the Supreme Court, but the appeal must be taken within ten days after service of a copy of the judgment or order appealed from (§ 3190). § 613. Appeals to the Court of Common Pleas. (Co. Civ. P. §§ 3191, 3192, 3193, 3194) — Appeals do not run from the City Court to the Court of Appeals, but "an appeal maybe taken to the Court of Common Pleas for the City and County of New York from an actual determination of the City Court at a General Term in the following cases : 1. Where a final judgment has been rendered upon an appeal taken to the General Term. 2. Where an order has been made granting a new trial. But an appeal cannot be taken from an order grant- ing a new trial upon a case or exceptions unless the notice of appeal contains an assent on the part of the appellant that if the order is affirmed judgment absolute may be rendered against the appellant. 3. Where an order has been made which grants, refuses, continues, or modifies a provisional rem- edy ; or where it involves some part of the merits, or where it affects a substantial right, or where in effect it determines the action and prevents a judgment from which an appeal might be taken." 5 18 CITY COURT OF NEW YORK. [CH. XX. The language of this section differs somewhat from the lan- guage of § 190, by which the power of the Court of Appeals in review are denned, but in general the Court of Common Pleas holds the same position with respect to the City Court of New York in reference to appellate jurisdiction that the Court of Appeals holds with respect to the Supreme Court and the Superior City Courts. Walsh v. Schulz, 6 Civ. Pro. 126; Farley v. Lyddy, 8 Daly 514; McEteere v. Little, 7 Abb. N. C. 374. The powers of the Common Pleas being substantially the same as those of the Court of Appeals, it follows that only questions of law presented by exceptions can be considered on appeals to the Common Pleas from judgments of the City Court. Rowe v. Conley, 2 Civ. Pro. 424 ; Homer v. Wehle, 15 State R. 381. And the same rule applies here, as we have found, in the case of appeals to the Court of Appeals from an order of the General Term granting a new trial. In such cases if the order may have been made upon a review of the questions of fact, the Court of Common Pleas will not entertain the appeal (see ante, § 516; Powell v. Lamb, 22 State R. 233), and in such cases the appeal lies only when the notice of appeal contains the stipulation provided for in § 3191. Wilmore v. Flack, 96 N. Y. 512. As to appeals to the Common Pleas from orders, it is to be noted that the provision of the section differs from the corre- sponding section (§ 190) in reference to appeals to the Court of Appeals, in that it does not limit the appeal to orders which do not rest in the discretion of the court. The construction put upon the statute by the decisions of the Court of Common Pleas conforms the practice in this respect to that of the Court of Appeals. A discretionary order made by the General Term of the City Court will not be reviewed by the Court of Common Pleas. Walsh v. Schulz, 6 Civ. Pro. 126 ; Stringfried v. Fields, 7 Civ. Pro. 356 ; Bode v. Marberger, 12 Civ. Pro. 54 ; Waters v. Curtis, 13 Daly 179. § 614. Appeals to Common Pleas — When and how taken. (Co. Civ. P. §§3192, 3193.) — An appeal to the Court of Common Pleas from a judgment or order of the General Term of the City Court of New York must be taken within twenty days after service of a copy of the judgment or order appealed from and a written notice of the entry thereof. The appeal is heard at a General Term of the appellate court. §615.] APPEAL TO THE COURT OF APPEALS. 519 The steps in perfecting the appeal are as on an appeal to the Court of Appeals. A return must be filed with the clerk of the appellate court within twenty days after the appeal is per- fected (see ante, § 525). The return in the case of an appeal from a judgment consists of a copy of the judgment roll and of the case and notice of exceptions if any filed after the entry of judgment, and a certified copy of the judgment given thereon, and of the notice of appeal, and when the appeal is from an order the return consists of a certified copy of the notice of appeal of the order and of the papers upon which the order was founded (§ 13 15). The practice is substantially similar to the practice on appeal to the General Term in the Supreme Court as already detailed. The judgment or orders of the appellate court must be re- mitted to the court below to be enforced, and the proceedings are as upon a remittitur from the Court of Appeals (see ante, §530 § 615. Appeal to the Court of Appeals. (Co. Civ. P. § 3 I 95-) — No appeal lies from the judgment or order of the General Term of the Common Pleas on an appeal from the City Court unless the Court of Common Pleas "allows the appeal by an order made at the General Term which rendered the determination, or at the next General Term after judgment is secured thereupon " (§ 190). The act of 1886 (Laws of 1886, ch. 418), which authorized appeals directly from the City Court to the Court of Appeals, was declared unconstitutional in Hulkoff 'v. Demorest (103 N. Y. 377), for the reason that the powers of the Court of Common Pleas under the constitutional provision we have already considered {ante, § 595) could not constitutionally be diminished by legislative enactment. INDEX (References are to pages. ) ABATEMENT, of actions, 308. avoided by statute, 309. ABSCONDING DEBTORS, proceedings by attachment against, 21. See Attachment. ACCOUNT CURRENT, statute of limitations affecting, 81. application of payments on, 81. ACCOUNT, action upon, 144. demand for, 14^. penalty for failure to serve, 145. practice on demand for, 145. when issues on long account referred, 386. what constitutes long account, 387. reference to take and report facts, 389. ACKNOWLEDGMENT, of debt to take debt out of statute of limitations, 84 of bonds and undertakings, 326. who may take, 326. where proof by subscribing witness, 327. cannot be taken before attorney in action, 327. ACTION, denned, 96. civil and criminal, 96. causes of, non-assignable, 123. causes of, improperly united, demurrer, 183. notice of object of, 102. in what attachment granted, 241. in aid of attachment, 254. of divorce, jury trial, 370. survival of causes of, 307. abatement of, 308. place of trial of, 364. issues and mode of trial thereof, 368. where trial by jury is a right, 370. where issues referred, 387. consolidation of actions, 329. dismissal for neglect to proceed, 331. common law, trials at, 13. (521) - n *> TMFiPV T References 3-- lJNDtA.. Lore to paget. ACTION— continued. real actions previous to Revised Statutes, 15. of partition of real estate, 17. judgment creditor's action for sequestration, 290. to dissolve a corporation, 290. tender in, 303. causes of which survive assignable, 309. limitations of (see Statute of Limitations), 78. forms of, 137. ACTIONS, for misconduct against directors, 288. power to appoint receiver in, 289. at common law, capias ad respondendum, 4. arrest in, 5. forms of in early practice, 8. ADJOURNMENT of special term Supreme Court, 62. ADMINISTRATOR, action against to recover damages for taking, etc., per sonal property, 79. short statute of limitations against, 80. ADULTERY, evidence of husband or wife, 345. ADVERSE POSSESSION, 70. under claim of title founded on written instrument and not distin- guished, 70., what necessary to constitute, 70. claim or color of title, 72. relation of landlord and tenant as affecting, 73, AFFINITY of judges, when disqualifies, 41. AFFIDAVITS, requisites of, 300. defects in, 300. on ex parte application for order to show cause, 315. on application to extend time, 318. of merits, 318. of verification made by person other than party, what to contain 189. on attachment, 242. verified pleading regaided as, 243. on attachment to be filed, 249. for replevin, who may make, 270. for order of service by publication, 112. on obtaining order of arrest, 215. on motion for change of place of trial, 367. of sureties on undertaking, 328. of merits, 202. AGENTS may verify pleading, when, 189, 190. ALLOWANCE, additional to plaintiff, 491. to either party in difficult cases, 492. based upon sum recovered, etc., 493. AMENDMENTS, as to parties, 297. of pleadings, 298. before trial, 298. References 1 INDEX C21 aretupages.l mvcA.. jz_j AMENDMENTS— continued. upon the trial, 29S. cannot change claim or defense at trial, 2qg. cannot set up new cause at trial, 299. after trial, 299. of course before trial, 193. amended pleading supersedes original, 193. of pleading on trial, 194. of officer's return, 300. original paper supplied by copy, 300. venue to affidavit supplied by, 301. order for when not reviewed on appeal, 300. of bonds and undertakings, 301. after decision on demurrer, 185. of warrant of attachment, 250. ANSWER, form of, 161. defenses in, 162. several answers allowed, 162. separate defenses separately pleaded, 162. equitable defenses, 163. partial defenses. 163. denials in, form of, 164. time to, 102. guardian ad litem must, 133. need not be verified in action for divorce, 186. demurrer to, 185. in replevin, 277. examination of party to frame, 355. may be amended at Special Term to embrace new defease, 298. APPEAL, writ of error abolished, 431. who may, 432. how taken, 432. notice of, 432. time to, cannot be extended, 319. when party during time to appeal dies, 319. case or appeal book, 452. to serve printed copies of case, 452. what steps necessary to bring question of fact for review before appel- late court, 395. if levy made before stay, 451. the return on, 451. restitution on, 455. from final judgment, costs, 486. from order vacating attachment, 260. from order denying motion, new trial, 398. to General Term, 433. from orders, 434. from order granting or refusing new trial, 435. j~t- UMLiJiA. larelopagm. A PPEA L — continued. from order of judge out of court or in special proceeding, 435. how and when taken, 435. time to appeal to General Term, 435, when time to appeal begins to run, 436. when omission supplied in appealing, 436. staying proceedings on, 436. security not required to perfect, 436. from final judgment security to stay execution, 437. from final judgment, what heard on, 438. making up papers for hearing of, 438. notice of argument, 439. service copy printed papers on, 439. motion to strike from calendar, etc., 439. the hearing of the argument on, 439. judgment or order on, 440. to Court of Appeals, 440. what reviewed on 441. when must be taken, 447. how appeal perfected, security, 447. stay pending appeal, 447. undertakings on, 448. notice of, copy undertaking served with, 449. limited by amount, 442. to review actual determination, 443. from orders, 444. from order refusing new trial, 445. from order granting new trial, 445. statement of General Term that decision only on questions of law, when, 446. assent of appellant, judgment absolute when, 445. review of questions of fact on trial by court or referee, 453. judgment or order on, 454. remittitur, 454. preparation of case, 452. service printed copies case, 452. bringing on and argument, 452. what questions brought up, 453. appeal book, what consists of 452. APPEARANCE, voluntary, effect of, 100. unauthorized, 101. of defendant, when and how, 99. APPLICATION of payment, account current, 81. ARBITRATION, limitation after attempted, 93. ARGUMENT of cause on appeal to Court of Appeals, 453. notice of, 439, 452. ARREST, derivation of remedy, 20. order of, when and by whom granted, 215, 217. References "I TNT)FV CC ARREST — continued. proofs necessary to procure, 215. undertaking on, 216. application to vacate order, 217. defendant arrested, time to answer, 217. order of discretionary, 205. joinder of causes of action, 205. second arrest, 205. actions in which defendant may be, 205. dependent on cause of action, 205. when not dependent on cause of action, 206. dependent on form of complaint, 206. in actions to recover damages for a personal injury, 207. in actions for an injury to property, 207. in action for breach of promise to marry, 207. misconduct or neglect in office 207. fraud and deceit, 207, 211. in actions on contract, fraud in contracting, 208. in action to recover a chattel, 208. when money received in a fiduciary capacity, 209. actual intent must be shown, 21 1. privilege from, 213. under non-imprisonment act, 204. undertaking on amended, 301. replevin. 276. instances guarded from, 39. ASSIGNMENT, of bond for jail liberties, 55. of cause o< action, 136. of claims and demands, 123. ASSIGNED CLAIMS, rules in reference to actions on, T72, counterclaims in actions on, 172. ASSIGNEE FOR CREDITORS, part payment by, does not take debt out of statute of limitations, 87. ATTACHMENT AGAINST PROPERTY, derivation of remedy, 20. preference on trial when attachment levied, 471. undertaking on amended, 301. judgment by default in cases of, 419. where levied, requisites of execution, 463. property in custodia legis, 240. in what actions granted, 241. what shown to procure warrant, 242. affidavit for, 243. debt over and above counterclaims, 244. grounds of, 245. when intent inferred to hinder, etc. , 247. when and by whom warrant granted, 248. service of summons on, when, 248. affidavits on, to be filed, 249. S 2 " INDEX. larelopayes. ATTACHMENT AGAINST PROPERTY— continued. undertaking on, 249. contents of warrant, 250. execution of warrant, 250. levying warrant on real property, 250. levy of warrant on personal property capable of manual delivery, 250. levy on property not capable of manual delivery, 251. " other instrument for payment of money,'' what included in, 251. mere equitable rights not subject of, 251. causes of action arising on contract, 252. levy on shares of stock, foreign corporation, 252. of property fraudulently assigned, 253. certificate of third party, 253. examination of third party, 253. actions in aid of, 254. by plaintiff, 254. by sheriff, 254. inventory of personal property, 255. perishable property to be sold under order, 255. property attached, care of, 257. motion to vacate or modify warrant or increase security, 258. motion to vacate, etc., how made, 259. opposing affidavits, 259. when vacated, 260. appeal from order vacating, 260. discharge of on undertaking, 260. of partnership property, 261. execution against attached property, 262. if defendant dies after attachment, right to issue execution with court, 262. proceedings where third party claims property, 256. ATTACHMENT against the person to enforce orders in summary proceed- ings against attorney and sheriff, 50. proceedings against absconding debtors, 21. ATTORNEYS, statutory prohibition affecting, 47. not to buy, etc., thing in action for purpose of bringing action, 47. cannot advance money to carry on litigation, 45. guilty of deceit or collusion forfeits treble damages, 48. agreements as to compensation, 44. lien of, 45. enforcement of lien, how, 46. to what lien attaches, 46. in contempt, putting in fictitious bail, etc., 37. disobedience to orders of court, contempt, 37. collecting money under erroneous order, 37. admission to bar, 42. requisites for examination, 47. of other States may be admitted, when, 43. References "l INDEX 7 are iopayea J iiil/ija. 3-/ ATTORNEYS— continued. powers of. 43. compensation of, 44. substitution of, 48. are subject to control of court by summary proceedings, 49. orders of cou;t enforced by attachment, 50. liability for costs, 502. proceedings on death or removal, 50. cannot be bail, 221. professional communications, 348. in action cannot take acknowledgment, 327. in no case surety on bond or undertaking, 327. may verify pleading, when, 189. power to satisfy lien of judgment, 422. misapplying money received, arrest, 20g. BAIL, at common law, 7. qualification of, 221. attorney cannot be, 221. justification of, 221. deposit in lieu of, 222. charging and discharging, 224. execution before action against, 224. death, discharge of principal, 224. surrender, 224. right to, absolute, 219. to jail liberties, 219. until justified, sheriff liable, 221. fictitious, contempt of court, 37. under Revised Statutes, 203. BANKER, when liable to arrest, 210. BILL OF DISCOVERY, 353. BILL OF PARTICULARS, 19T. when directed and order for, 191, 192. its office, 191. practice to procure, 192. effect of, when furnished, 193. BILL TO PERPETUATE TESTIMONY, 354, 357. BOND AND UNDERTAKING, by whom executed, 327. in no case attorney surety, 327 surety companies on, 327. form of, 328. affidavit of sureties, 328. approval, 328. penalty $5,000 and upwards, sureties, 328. to the people, prosecution of, 328. where filed, 329. amendments of, 301. C-.8 t\m"it?v r Reference* b^o irsJJJiX.. Late to pagts. BOND AND UNDERTAKING— continued. given nunc pro iunc, court may permit, 301. of indemnity to sheriff on attachment, 52. must be acknowledged, 326. BREACH OF PROMISE TO MARRY, arrest in, 207. BROKER misapplying funds received, arrest, 209. BURYING GROUND, exemption from execution, etc , 467. CASE AND EXCEPTIONS, defined, 395. when made, 395. copy made and served, 396. amendments to, 396. settlement of, 396. what must contain, 396. certified and ordered filed, 397. on motion for new trial at Special Term, 399 401. statement prefixed to, 438. preparation of, 452. printed copies to be served when, 452. CERTIFICATE FOR COSTS, 491. CHALLENGES, right of, to jury, 375. to the array, 375. to the polls, 376. peremptory, 376. for cause, 376. CHAMBERS OF COURT, business done at, 59. CHAMPERTY, 45. CHANGES IN ENGLISH PRACTICE, 28. CHANGE OF PARTIES, 136. CHATTEL, action to recover, 79. See Replevin. how replevied, 272. replevied, how kept, 273. joinder, causes for, with or without damages, 157. fraudulently disposed of, may be seized under attachment, 253. execution for delivery of, 464. CHATTEL MORTGAGE, levy on chattels covered by, under execution, 470. CHARGE, to jury, requests, 382. exceptions to. 382. CIRCUIT COURT, origin of, 59. what tried at, jurisdiction, 60. no jurisdiction to grant equitable relief, 372. CITY AND COUNTY OF NEW YORK, special proceedings before judges in. 40. coroners in, 5,6. CITY COURT OF BROOKLYN, jurisdiction of, 509. CITY COURT OF NEW YORK, jurisdiction, 510. mandates of, 511. subpoena in, 511. References ] TNDFY t?Ci aretopages.J liMJCA. ;>zy CITY COURT OF NEW YORK— continued. sections of Code which do not apply to, 511. time for service certain notices in, 512.