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* '^MmmmmlASS,^^ °' "^i"" Procedur 
 
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A HANDBOOK 
 
 OF THE 
 
 CODE OF CIVIL PROCEDURE 
 
 PREPARED FOR THE USE OF STUDENTS, AND PRE- 
 SENTING IN BRIEF FORM, AND IN SIMPLIFIED 
 AND ORDERLY MANNER, THE PORTIONS 
 ESSENTIAL FOR THEIR 
 CONSIDERATION. 
 
 CARLOS C. ALDEN, LL.M., 
 
 OF THE NEW YORK HAH, 
 
 PROFESSOR OF LAW IN THE LAW DKl'ARTMENT 
 
 OF THE NEW YORK UNIVERSITY 
 
 NEW YORK 
 
 BAKER, VOORHIS & COMPANY 
 
 igoi 
 
Copyright igoi, 
 By Baker, Voorhis and Company. 
 
PREFACE. 
 
 The Code is a difficult volume to study; its 
 numerous sections contain, in great proportion, 
 details of practice and procedure which are wholly 
 unnecessary to consider in order to obtain that 
 general knowledge of its provisions, which is all 
 that the student may hope or should seek to gain. 
 The purpose of its study is not to enable the practi- 
 tioner to dispense with the Code, but to practice with 
 the Code; to attain this result it is necessary to 
 possess but a kind of working familiarity with 
 the volume, which must always remain within arm's 
 reach. 
 
 With this end in view, this volume attempts to 
 place before the student, in the most limited space 
 practicable, those matters of which the student 
 should acquire his general knowledge. It will then be 
 a task of comparative ease to find and apply special 
 regulations, when necessity therefor arises in his 
 subsequent practice. 
 
 The volume now dedicated to the student, and 
 which, it is hoped, may in some measure lessen 
 former difficulties of concentration in Code study, 
 follows closely the general character of my lecture 
 notes. 
 
 CARLOS C. ALDEN. 
 
 New York University, 
 September, 1901. 
 
TABLE OF CONTENTS. 
 
 i\( 
 
 CHAPTER I PAGE 
 
 I. Purpose and Scope oe thACode, . i 
 II. Organization and Jurisdiction of 
 
 Civil Courts, 4 
 
 III. Judges; Ministerial Officers; At- 
 
 torneys, 13 
 
 IV. Methods for Enforcement of 
 
 Rights, and Redress or Preven- 
 tion of Wrongs, .... 18 
 V. Limitations upon Prosecution of 
 
 Civil Actions, 20 
 
 VI. Procedure in the Course of a Civil 
 Action in a Court of Record : 
 
 1. Parties, . 24 
 
 2. Obtaining Jurisdiction of 
 
 Defendant, 27 
 
 3. Raising of the Issues, . 31 
 
 4. Provisional or Collateral 
 
 Remedies, .... .42 
 
 5. Other Matters Prior to 
 
 Trail; Bringing On the 
 Trial, .... 53 
 
 6. The Trial, . 62 
 
 7. Costs, . 68 
 
 8. Judgment and its Enforce- 
 
 ment, . 69 
 
 9. Appeals, ... 79 
 
VI CONTENTS. 
 
 CHAPTER PAGE 
 
 VII. Procedure in Courts Not of Rec- 
 ord, 87 
 
 VIII. Procedure in Special Proceedings, 90 
 IX. Surrogate's Courts: 
 
 1. Proceedings Generally, . . 92 
 
 2. Probate of Will, .... 97 
 
 3. Administrators, .... 103 
 
 4. Administration and Dis- 
 
 tribution OF Estate, and 
 Accounting Therefor, . 105 
 
 5. Sale of Decedent's Realty 
 
 to Pay Debts, . . .110 
 
 6. General Guardian, . . 112 
 X. State Writs, 114 
 
 XL Proceedings Instituted Without 
 
 State Writ, 125 
 
 XII. Special Provisions Relating to 
 Particular Actions : 
 
 1. Actions Affecting Real 
 
 Property, 130 
 
 2. Matrimonial Actions,. . . 143 
 
 3. Judgment Creditors' Suits, 149 
 
 4. Decedents' Estates, . . . 151 
 
 5. Joint Debtors, 153 
 
 6. Other Miscellaneous 
 
 Causes of Action, . . . 154 
 
CHAPTER I. 
 
 PURPOSE AND SCOPE OF THE CODE. 
 
 The present Code of Civil Procedure represents 
 a gradual moulding and progressive development 
 of practice and procedure within this State during 
 a period of three-quarters of a century. Long 
 before the CoAstitution of 1846 marked its radical 
 changes upon the State's judicial system, it was felt 
 to be inadequate to meet the rapidly increasing popu- 
 lation and commercial interests, and to be cumbered 
 with much that was clearly antiquated and a clog 
 on the effective administration of justice. There 
 were at that time separate courts of chancery and 
 of common law jurisdiction, each with its distinct 
 system of practice and procedure, while the latter 
 courts retained much of the early formg and practice 
 of the English courts. In 1837 the Legislature 
 took the first step toward the creation of a more 
 modern system of practice, by authorizing the 
 appointment of commissioners to report a system 
 embodying practice at law and in equity. By the 
 Constitution of 1846, the Court of Chancery was 
 abolished and its equitable jurisdiction was vested 
 in the Supreme Court; three commissioners were 
 directed to be appointed "to revise, reform and 
 simplify the rules of practice, pleadings, forms and 
 
2 A HANDBOOK OF THE CODE. 
 
 proceeding-s of the courts of record of 'the State." 
 The labors of the three commissioners (Messrs. 
 David Graham, Aphaxid Loomis and David Dud- 
 ley Field) resulted in the "Code of Procedure," 
 which took completed form in 1852, and continued 
 in force till the adoption of the first half of the 
 present Code, in 1877. 
 
 The present Code retains, either practically 
 verbatim, or in a somewhat modified form, most of 
 the provisions of its predecessor necessitated by 
 the merging of legal and equitable jurisdiction in 
 one court, and the establishing of but one species 
 of civil action, in place of the two separate courts 
 and their separate systems of practice. 
 
 The commissioners reporting the present Code 
 were Montgomery H. Throop, Jacob Werner and 
 Charles Stebbins; they were appointed in 1873, to 
 revise, simplify, arrange and consolidate all the 
 State statutes, and to include a Penal Code, a Code 
 of Criminal Procedure and a Code of Civil Pro- 
 cedure. These three Codes were subsequently 
 reported to the Legislature, and adopted. 
 
 The first thirteen chapters of the present Code 
 of Civil Procedure took efifect in 1877; this portion 
 of the Code, after treating generally of courts, their 
 jurisdiction and organization, and the limitation of 
 actions, follows pretty closely the procedure during 
 the course of a civil action, taking up in succession : 
 the summons, and its service, parties to an action, 
 pleadings, provisional remedies, miscellaneous in- 
 termediate proceedings, trial, judgment, appeal, 
 enforcement of judgment. (§§ 416-1495.) 
 
 Chapters fourteen to twenty-two were adopted 
 
PURPOSE AND SCOPE OF TPIE CODE. 3 
 
 and went into effect in 1880. While continuing 
 the general purpose of a code of procedure, this 
 latter part contains many matters of substantive 
 law, in the shape of rights of action. For example, 
 the State divorce law (§§ 1742, 1756, 1762), the 
 right of action for negligently causing death 
 (§ 1902), etc., though treating of the right, rather 
 than the remedy, are to be found among the Code 
 sections. This portion of the Code contains pro- 
 visions regulating particular actions and special 
 proceedings, the jurisdiction of and procedure in 
 surrogates' courts and courts of justices of the 
 peace, taken in great part from the Revised 
 Statutes, and about the only provisions relating 
 generally to all actions deal with costs and fees, 
 and the rules of construction applicable throughout 
 the Code. 
 
 In 1890, titles I and II of chapter twenty-three 
 were added, covering proceedings for the con- 
 demnation of real property (by exercise of right of 
 eminent domain), and for the sale and mortgaging 
 of corporate realty. In 1897, titles III and IV 
 were added to the chapter, and treat of the fore- 
 closure of mechanics' liens and liens on vessels. 
 
 By § 17 of the Code, the justices of the Appellate 
 Division of the Supreme Court are directed to 
 meet in convention at least every two years, and 
 establish and revise what are known as the "General 
 Rules of Practice"; these rules are binding upon 
 all courts of record, except the Court of Appeals. 
 They supplement, but cannot supersede or over- 
 rule the provisions of the Code. 
 
CHAPTER II. 
 
 ORGANIZATION AND JURISDICTION OF 
 THE CIVIL COURTS. 
 
 The present State Constitution of 1894 deals 
 directly, and of course with supreme authority, 
 with the more important of the State courts 
 (Art. VI), and jurisdiction conferred by it cannot 
 be altered or impaired by legislative enactment. 
 
 All courts are either "Courts of Record," or 
 "Courts not of Record." All of the most im- 
 portant courts are courts of record; the distinction 
 is not of present value. Courts held by justices of 
 the peace, and the lesser civil courts established in 
 the various large cities of the State, are courts not 
 of record (§§2, 3). The Legislature has authority 
 to create courts not of record only, which courts 
 shall not possess any equitable jurisdiction, or any 
 greater jurisdiction than is possessed by the county 
 courts (Const., Art. VI, § 18). 
 
 The Court of Appeals has jurisdiction of an 
 exclusively appellate character. Appeals in civil 
 cases may be taken to it only from determinations 
 of the Appellate Division of the Supreme Court. 
 Its decisions are final, unless a question is involved 
 under the United States Constitution, in which 
 case the United States Supreme Court has power 
 
ORGANIZATION AND JURISDICTION OF COURTS. 5 
 
 of review. The Court of Appeals has power to 
 review questions of law only (Const., Art. VI, § 9; 
 Code, § 191). The Court consists of seven judges, 
 five of whom forrn a quorum, and the concurrence 
 of four is necessary to a decision (Const., Art. VI, 
 § 7). When the Court needs aid to dispose of its 
 calendar, the Governor may designate four justices 
 of the Supreme Court to serve temporarily as asso- 
 ciate judges of the Court of Appeals (id.). The 
 Court of Appeals may make rules regulating the 
 admission of attorneys and counselors at law 
 (Code, § 193). Its jurisdiction is hereafter treated, 
 under Chapter VI. 
 
 The Supreme Court has general jurisdiction in 
 law and equity (Const., Art. VI, §1). This general 
 jurisdiction includes all the jurisdiction possessed 
 by the Supreme Court of the Colony of New York 
 at any time, and by the Court of Chancery in 
 England on July 4th, 1776 (Code, § 217). The 
 State is divided into four judicial departments, the 
 first department consiting of the County of New 
 York and the other three containing various 
 counties of the State of as equal population as may 
 be (Const., Art. VI, § 2). 
 
 The Supreme Court is divided into what may be 
 called its "trial divisions," for the original hearing 
 and decision of litigated matters, and its "appellate 
 divisions," for the decision of appeals from determi- 
 nations of its trial divisions and of other courts. 
 
 Each of the four judicial departments has an 
 Appellate Division, consisting of seven justices in 
 the first, and five justices in each of the other three 
 
D A HANDBOOK OF THE CODE. 
 
 departments, designated for a term of five years 
 by the governor from all the supreme court justices 
 (Const., Art. VI, § 2). The governor also desig- 
 nates the presiding justice. At least four, but not 
 more than five, justices hear each appeal, and the 
 concurrence of three is necessary to a decision 
 {id.; Code, § 220). The jurisdiction of the appel- 
 late divisions is practically exclusively appellate, 
 and will be considered hereafter in Chapter VI. 
 
 The "trial divisions" of the Supreme Court are 
 themselves divided into "Terms," with regard to 
 the character of the matters to be heard and dis- 
 posed of thereat. The terms are known as 
 "Trial Terms," where jury or common law cases 
 are mainly tried, and "Special Terms," where are 
 heard equity cases, issues of law arising on demurrer, 
 special proceedings, and all the various intermediate 
 matters that arise for determination during the 
 course of a civil action. These "Special Terms" are 
 further subdivided into terms where equity cases 
 alone are heard and decided, and other terms which 
 are entirely given to the determination of the other 
 matters cognizable at Special Term. These Special 
 and Trial Terms are held in each county at times 
 fixed by the Appellate Division of the judicial depart- 
 ment embracing that county (§ 232). 
 
 Prior to January ist, 1896, there existed what 
 were called "Superior City Courts" as follows: 
 The Court of Common Pleas of the Citv of New 
 York, the Superior Court of the City of New 
 York, the Superior Court of Buffalo, and the Citv 
 Court of Brooklyn. These Courts had, with some 
 
ORGANIZATION AND JURISDICTION OF COURTS. 7 
 
 limitations not necessary to discuss, concurrent 
 jurisdiction with the Supreme Court. They were 
 abolished by the Constitution of 1894 (Art. VI, 
 § 5), their records were deposited with the County 
 Clerks of the respective counties (Code, § 93), 
 pending actions were transferred to the Supreme 
 Court, and their judges were made justices of the 
 Supreme Court for the remainder of their re- 
 spective terms. The number of the Supreme Court 
 justices was thus increased to meet the increased 
 demands upon the Court (Const., Art. VI, § i). 
 
 A County Court exists in each county of the 
 State, except in New York County. This Court 
 is intended to aid the Supreme Court in the de- 
 termination of actions of a local character. Its 
 jurisdiction is made dependent upon the presence 
 of the subject of the action, or the residence of all 
 of the defendants, in its county. The Court has 
 general jurisdiction over actions afifecting real 
 estate in its county, and oyer actions affecting 
 chattels therein where the aggregate value of the 
 chattel or the lien asserted upon it does not exceed 
 one thousand dollars. Where the defendant, or all 
 of the several defendants, reside within the county, 
 it has general jurisdiction of all other kinds of civil 
 actions brought to recover not more than two 
 thousand dollars. A domestic corporation is 
 deemed such a resident when its principal place of 
 business is established or is actually located within 
 the county (Const., Art. VI, § 14; Code, §§ 340, 
 
 341). ^^.,^.^.„L.iA-i£ -^ # i y/ ^ t^ju. *^ f^^' 
 
 The custody of the person and the care of the 
 
O A HANDBOOK OF THE CODE. 
 
 property of an incompetent resident of the county, 
 and the sale or other disposition of the real property 
 within the county of a domestic religious corpora- 
 tion, are also within the Court's jurisdiction. 
 (§ 340). 
 
 The County Judge is also Surrogate of the 
 County, except where there is a separate Surrogate; 
 the Legislature may provide for a separate Sur- 
 rogate in counties of over forty thousand inhabi- 
 tants (Const., Art. VI, § 15). 
 
 The process of this court runs to any county in 
 the State (§ 347). 
 
 The Surrogate's Court, prior to 1896, was a 
 statutory court, that is, a court of Legislative crea- 
 tion; it has now become a court of constitutional 
 recognition (Art. VI, § 15). The Court still 
 remains under the control of the Legislature, being 
 continued by the Constitution with its existing 
 jurisdiction and powers, until otherwise provided 
 by the Legislature. 
 
 The Court has general jurisdiction respecting 
 the administration of estates of deceased persons 
 and of infants. All proceedings relating to the 
 probate of wills, granting of letters testamentary 
 and of administration, payment of decedent's debts, 
 distribution of his property to those entitled 
 thereto under his will, or under the laws of intestate 
 succession, etc., are cognizable by this Court 
 (Code, §§ 2472-82). The procedure differs from 
 other courts of record, and is treated hereafter 
 under "Special Proceedings" and "Surrogate's 
 Courts." 
 
ORGANIZATION AND JURISDICTION OF COURTS. 9 
 
 The mandates of the Surrogate's Court run to 
 any county throughout the State (§ 2515). 
 
 The City Court of the City of New York has 
 
 jurisdiction over actions brought (i) to recover 
 money only, where the sum demanded does not ex- 
 ceed two thousand dollars, except that in an action 
 for damages for breach of promise to marry the 
 amount claimed may be unlimited; (2) to recover the 
 possession of chattels of an aggregate value of not 
 more than two thousand dollars; (3) to foreclose 
 a mechanic's lien on real property in the City of 
 New York; (4) to foreclose a lien for not more 
 than two thousand dollars on chattels; (5) to re- 
 cover seamen's wages and damages for assault, 
 battery or false imprisonment on the high seas 
 
 (§§315-7)- 
 
 The Court is composed of seven justices, one of 
 
 whom is designated by them to be chief justice. 
 
 The Court's mandate can be enforced only within 
 the Borough of Manhattan, except that an execu- 
 tion upon a judgment may be issued to any county 
 where the judgment has been docketed, a subpoena 
 may be served and a witness apprehended for failure 
 to obey it in any of the counties adjoining the 
 County of New York, and an order requiring the 
 performance of an act by a party to an action or 
 to show cause why the person named therein 
 should not be punished for a contempt may be 
 served in any part of the State (§ 338). 
 
 The Court is divided into the General Term, and 
 Special and Trial Terms. Each General Term is 
 held by at least two justices (§ 324). The 
 
lO A HANDBOOK OF THE CODE. 
 
 General Term has similar powers of review over 
 the determinations of the Special and Trial Terms 
 of the Court as the Appellate Divisions has of the 
 determinations of the Special and Trial Terms of 
 the Supreme Court (§§ 3188, 9). 
 
 An appeal lies from the determination of the 
 General Term to the Appellate Term of the 
 Supreme Court, which consists of such justice or 
 justices of the Supreme Court as shall be assigned 
 by the Appellate Division in the First Department 
 to hear such appeals (§ 3 191). The Appellate 
 Term has heretofore consisted of three of such 
 justices. 
 
 The Trial Terms of the Court are devoted to the 
 trial of jury causes; the justice holding Special 
 Term passes upon the miscellaneous applications 
 made during the pendency of actions. 
 
 The Municipal Courts of the City of New York 
 
 were created at the time of the consolidation of 
 New York City and the several surrounding 
 cities, and the provisions regarding those courts 
 are to be mainly found in the Greater Xew York 
 Charter (Charter, §§ 1351-84). They are a con- 
 tinuation of the former District Courts of New 
 York City and Justices' Courts of Brooklyn, but 
 with increased jurisdiction. 
 
 Municipal Courts have jurisdiction of actions 
 against natural persons, domestic corporations, 
 and foreign corporations having offices within the 
 present City of New York, wherein the sum claimed 
 does not exceed five hundred dollars, and of a 
 character (stated generallj^ as follows: (i) all 
 
ORGANIZATION AND JURISDICTION OF COURTS. I I 
 
 actions upon contract other than a promise to 
 marry; (2) actions of tort except assault, battery, 
 mahcious prosecution, false imprisonment, libel, 
 slander, criminal conversation, seduction and entice- 
 ment; (3) fines or penalties under general provisions 
 of law, or under the charter, or under any city ordi- 
 nance; (4) to recover chattels of not more than the 
 value of five hundred dollars ; ( 5 ) summary proceed- 
 ings to recover possession of real property (without 
 limit as to value) within the City; (6) all other civil 
 actions or proceedings of which the former District 
 Courts had jurisdiction (Charter, § 1364). Prob- 
 ably the most important class of actions coming 
 within this last division is the foreclosure of me- 
 chanic's liens (Code, § 3399). 
 
 If the amount claimed in any action exceeds two 
 hundred and fifty dollars, the defendant, upon 
 giving security, may remove the action into a higher 
 court. 
 
 These courts are divided into districts within the 
 several boroughs (Charter, § 1358). Actions must 
 be brought in the district where one of the plain- 
 tiffs, or one of the defendants, resides, or, if a cor- 
 poration, where it keeps an office or agency for the 
 transaction of its business. If no one of the parties 
 resides in the City, the action may be brought in 
 any district. A person is deemed a resident for the 
 purpose of fixing the district if he has a place 
 therein for the regular transaction of business 
 (id., § 1370). An action may be tried in any dis- 
 trict, unless it is transferred upon the defendant's 
 demand made upon or before putting in his answer 
 (id.). The process of the court runs to all portions 
 
12 A HANDBOOK OF THE CODE. 
 
 of the greater city (id., § 1368). The court is held 
 by a single justice, and no jury is present unless 
 •demanded at the time the answer is filed. 
 
 Justices' Courts throughout the State are 
 given jurisdiction in the main similar to the Munic- 
 ipal Courts of the City of New York, but the limita- 
 tion upon the amount involved is two hundred dol- 
 lars (Code, §§ 2861-3). The justice hears and de- 
 termines actions according to law and equity, and for 
 that purpose is vested with all the necessary powers 
 possessed by the Supreme Court (§ 2868). 
 
CHAPTER III. 
 
 JUDGES; MINISTERIAL OFFICERS; 
 ATTORNEYS. 
 
 The functions of a judge are exercised by him 
 either at times when he is holding a stated term of 
 court, or at times when no court is in actual session 
 to which he is assigned. With regard to the situa- 
 tion under which he acts, the judge is said to be 
 either "in" or "out" of court. When "out" of court 
 he is entitled to exercise those powers that attach to 
 a judge by virtue of his office. When "in" court he 
 is vested with the additional powers attaching to the 
 term of court which he is then holding (§§ 235-7). 
 When, in the Code, reference is made to an order 
 which may be made by a judge, any judge of the 
 court may make the order at any time (§ 772) ; a 
 court order, however, is the act of the particular 
 judge assigned to and holding that court. A judge 
 may adjourn a term of court to which he was not as- 
 signed (§ 34). A judge "out" of court may make 
 an order appointing a guardian ad litem (§ 472), 
 except in an action for partition (§ 1535)- So, he 
 may grant an order of arrest (§ 556), an injunction 
 order (§ 606), warrant of attachment (§ 636), stay 
 proceedings in an action for not more than twenty 
 days (§ 775), extend the time within which a pro- 
 ceeding in an action must be taken, provided the 
 time has not already expired ( § 781 ) , grant an order 
 
14 A HANDBOOK OF THE CODE. 
 
 for production of books and papers ( § 805 ) , for the 
 taking of depositions within or without the State 
 (§§ 872, 889), allow State writs (§§ 2008, 2069), 
 2093 ) , grant an order in supplementary proceedings 
 (§ 2433) for security for costs (§ 3272), etc. 
 Neither a judge nor the court is authorized to ex- 
 tend the time fixed by law within which to com- 
 mence an action or take an appeal (§ 784). 
 
 The ministerial officers connected with the or- 
 ganization of the courts are : Sheriff ; coroner ; clerk ; 
 stenographer; interpreter; attendants; reporter 
 (§§ 82-189). 
 
 The sheriff of each county enforces the commands 
 of the courts therein (§ 102), and in so doing may 
 call to his aid the military organization as well as the 
 citizens of the county (§ 104). If further aid be 
 required, the Governor may send any necessary 
 portion of the State militia ( § 107) . The sheriff has 
 custody of all civil prisoners ; they must be kept sep- 
 arate from criminal prisoners (§123). A civil pris- 
 oner upon giving security that he will not go beyond 
 the jail liberties must be admitted to them (§ 150). 
 Jail liberties are fixed territorial limits beyond the 
 walls of the county jail; in New York County the 
 jail liberties are the whole of that county (§ 145). 
 The sheriff notifies persons drawn as trial jurors to 
 attend ( § 1048) . He executes orders for the attach- 
 ment of property (§ 644), for the arrest of a defend- 
 ant (§ 563),for the replevying of a chattel (§ 1700) ; 
 an execution issued for the enforcement of a judg- 
 ment against the property or person of the judgment 
 
judges; ministerial officers; attorneys. 15 
 
 debtor is directed to and enforced by him (§§ 1362- 
 '/2,)- When a dispute is raised as to the ownership 
 of property seized by him by virtue of a mandate, 
 such as an execution, or warrant of attachment, the 
 sheriff may empanel and preside over a jury to try 
 the question (§ 108). Deputy sheriffs are appointed 
 by the sheriff and permitted to act for him in the 
 performance of the various duties enjoined upon him 
 by law. 
 
 The functions of the sheriff for courts of record 
 are in the main performed by the city marshals for 
 the municipal courts of the City of New York, and 
 by the constables for justices of the peace. 
 (§§ 2897-3032, 3208). 
 
 Whenever a sheriff is a party to an action, he is 
 of course disabled from acting in his official capac- 
 ity ; his duties and powers in such situation devolve 
 upon the coroner of the same county ( §§ 1 72-1 81 ) . 
 
 The clerk of the court has the care and custody of 
 its seal and records; he enters — i.e., signs and files — 
 and records all judgments of the court (§ 1236). 
 The clerk of each county is also clerk of the supreme 
 court of that county (§ 3343). He is empowered to 
 appoint deputies who act for him in performing the 
 various functions of his office (§89). If a judge 
 designated to hold a term of court fails to appear, the 
 clerk is empowered to adjourn it (§35). Notices of 
 appeal from judgments or orders are filed with the 
 clerk besides being served upon the attorney for the 
 successful party (§ 1300). In some cases of defend- 
 ant's default the clerk may enter the judgment 
 without direction from the court (§§ 121 2-3). 
 
l6 A HANDBOOK OF THE CODE. 
 
 The stenographer is a court officer (§ 82). It is 
 his duty to take full stenographic notes of the testi- 
 mony and rulings upon the trial and record every 
 exception taken ; upon request of any party, he must 
 fully note every remark or comment of the judge 
 presiding over a jury trial (§ 83). He shall fur- 
 nish a copy of the minutes of the trial to any party 
 upon payment of his fees. 
 
 The reporter publishes such decisions of the court 
 as he deems it for the public interest to have re- 
 ported (§§ 210, 249). The reporter for the Court 
 of Appeals is called the State Reporter (§ 209). 
 
 No present distinction exists in this State between 
 attorneys and counselors at law; they are alike offi- 
 cers of the court. The Code in part regulates the ad- 
 mission of attorneys to practice (§§ 56-60), but the 
 Court of Appeals prescribes rules for a uniform sys- 
 tem of examination binding upon the State Board of 
 Law Examiners (§ 57). 
 
 While a party to a civil action is permitted to ap- 
 pear in person, he may if he so desire appear by a 
 regularly admitted attorney, and if an attorney is 
 retained, the party himself cannot appear to act in 
 person (§ 55). An attorney may be suspended or 
 removed by the Appellate Division for misconduct 
 
 (§§ 67-9)- 
 
 An attorney has a lien for his services at the 
 amount of the compensation agreed upon; this lien 
 fastens upon his client's cause of action and recov- 
 ery, and is not affected by a settlement between the 
 parties (§ 66). 
 
 An attorney is prohibited from buying a right of 
 
JUDGES; MINISTERIAL OFFICERS; ATTORNEYS. 1/ 
 
 action for the purpose of bringing an action on it 
 and from giving a valuable consideration to any 
 person as an inducement to placing in his hands a. 
 demand of any kind for the purpose of suit (§§ 73- 
 
 4). 
 
 The attorney subscribes the various papers in the 
 action, such as the summons (§ 417), notice of ap- 
 pearance (§ 421), pleadings (§ 520), stipulations 
 (§§ 1009, lOii, 3301), etc. He is personally re- 
 sponsible for the presence of scandalous matter in a 
 pleading (§ 545), and is under the court's summary 
 control. 
 
CHAPTER IV. 
 
 METHODS FOR ENFORCEMENT OF 
 RIGHTS, AND REDRESS OR PRE- 
 VENTION OF WRONGS. 
 
 A CIVIL right must be enforced, redressed or pro- 
 tected from wrongful invasion by one of the follow- 
 ing methods : 
 
 (i) By civil action; by which, when used in the 
 Code, is meant an ordinary prosecution in a court of 
 justice (§ 3333). There is no distinction in form 
 between actions at law and suits in equity (§ 3339). 
 
 (2) By special proceeding; in which is included 
 every other prosecution by a party (§ 3334). Under 
 this head are to be classed all matters entertained by 
 the Surrogate's Court, proceedings under State 
 writs, and certain proceedings included in Chapter 
 XVII. of the Code, all hereafter considered. 
 
 (3) By submission to arbitration; by which is 
 meant an agreement by parties to a controversy, who 
 are all siii juris, that certain persons named shall 
 hear and determine it (§§ 2365-6). When the Code 
 requirements are complied with the determination of 
 the arbitrators may be enforced like a judgment of 
 the court (§ 2380). 
 
 (4) Submission of controversy on agreed state of 
 
CIVIL REMEDIES. I9 
 
 facts ; where the facts are undisputed between them, 
 the parties may present them in writing and submit 
 their rights thereon to the determination of the Ap- 
 pellate Division of the Supreme Court (§§ 1279- 
 81). 
 
CHAPTER V. 
 
 LIMITATIONS UPON THE PROSECUTION 
 OF CIVIL ACTIONS. 
 
 Certain arbitrary time limitations have been 
 established by law, during which a civil right once 
 accrued must be enforced. These time periods differ 
 greatly with regard to different species of rights of 
 action. The sections of the Code establishing these 
 time periods constitute what is commonly called the 
 "Statute of Limitations." This statute is often con- 
 sidered, not as an enactment which deprives a party 
 of his right, but as a statute of repose, which is based 
 upon the fact that a party has, while under no legal 
 restraint or disability, permitted the one liable to 
 remain in peace a certain fixed period without assert- 
 ing his right against him, and which provides in ef- 
 fect that the period of peace shall thereafter continue 
 perpetually. 
 
 If, however, the right is not permitted to lie 
 entirely dormant, but the person liable has meantime 
 given a new promise to pay, or an acknowledgment 
 of the debt, in writing, the statute runs only from 
 the date of the new promise, or the acknowledgment 
 
 (§ 395)- 
 
 Certain time is excluded from the computation of 
 these periods of limitation, based upon the fact that 
 
STATUTE OF LIMITATIONS. 21 
 
 some reason exists during the excluded period why 
 the person entitled to the right fails to assert it. If 
 when the right accrues to him (§ 408), the person is 
 an infant, or insane, or imprisoned on a criminal 
 charge for less than life, the usual period of limita- 
 tion is extended (§§ 375, 396). If the party liable 
 is outside of the State, the statute does not run in his 
 favor until he returns, or designates some person 
 within the State upon whom service of a summons 
 may be made (§§ 401, 430). If the defendant is a 
 foreign corporation, the statute does not run in its 
 favor until it has designated a person within the 
 State for a similar purpose (§§ 401, 432). If the 
 party entitled to enforce a right dies, the time limita- 
 tion is extended one year from his death (§ 402). If 
 a person liable dies within the State, an extension of 
 eighteen months is given beyond the statutory 
 period within which to sue his representatives 
 (§ 403), and his executor or administrator may 
 await the judicial settlement of his account before 
 attempting to enforce his own claim against the de- 
 cedent (§ 2731). Where the commencement of an 
 action to enforce the right has been prevented by 
 an injunction, the time during which the person is so 
 prevented is excluded (§ 406). 
 
 If a right exists but no action may be brought 
 upon it until demand has been made, the time period 
 runs against it from the day when the right to make 
 the demand was complete ; except where an agent or 
 other fiduciary receives or detains money or prop- 
 erty the time period runs only from the day when 
 the person having the right to make the demand for 
 the money or property has actual knowledge of his 
 
22 
 
 A HANDBOOK OF THE CODE. 
 
 right; and except where there was a deposit of 
 money or property without a fixed time of repay- 
 ment or return, the time period runs from the actual 
 demand (§ 410). 
 
 The defendant must specifically claim in his 
 answer that the statute period has elapsed before the 
 commencement of the action; otherwise he cannot 
 claim the protection of the statute (§413). A court 
 or judge is not authorized to extend the statute 
 period (§ 784). An action is commenced when the 
 summons is served (§ 398), but delivery of the sum- 
 mons to the proper sheriff with intent that it shall be 
 actually served extends the time for the commence- 
 ment of the action sixty days beyond the time lim- 
 ited (§399). 
 
 The more important time periods during which 
 rights of action of the different species must be 
 placed. in suit are as follows (§§ 365, 376, 381-8) : 
 
 To recover possession of real 
 
 property : 
 Upon a judgment of a court of 
 
 record : 
 Upon an instrument under seal : 
 
 Upon a contract, express or im- 
 plied, not under seal : 
 
 Statutory liability, except pen- 
 alty or forfeiture: 
 
 Damages for injury to property 
 or person, except for negli- 
 gence and personal tort : 
 
 To recover a chattel (replevin) : 
 
 On a judgment of a court not of 
 record : 
 
 Twenty years. 
 
 - Six years. 
 
STATUTE OF LIMITATIONS. 
 
 23 
 
 Against sheriff or other court 
 officer for moneys collected 
 on execution : 
 
 For statutory penalty or forfeit- 
 ure: 
 
 Personal injury resulting from 
 negligence : 
 
 Damages for personal tort, such 
 as libel, slander, assault and 
 battery, etc. : 
 
 By the executor or administrator 
 of a decedent, for causing 
 death by negligence, etc. 
 (§ 1902) : 
 
 Against sheriff, or coroner, for ' 
 liability other than moneys 
 collected : 
 
 Against any other officer for 
 escape of a civil prisoner : 
 
 Against executor or administra- ~| 
 tor on a rejected claim >■ 
 (§1822): J 
 
 Where no other limitation is pre- 
 scribed, which includes, in the 
 main, actions of an equitable 
 character : 
 
 - Three years. 
 
 Two years. 
 
 One year. 
 
 Six months 
 after rejection. 
 
 Ten years. 
 
CHAPTER VI. 
 
 PROCEDURE IN THE ORDINARY COURSE 
 
 OF A CIVIL ACTION IN A 
 
 COURT OF RECORD. 
 
 I. 
 
 Parties. 
 
 -II. 
 
 Obtaining jurisdiction of defendant. 
 
 III. 
 
 Raising of issues. 
 
 IV. 
 
 Provisional and collateral remedies. 
 
 V. 
 
 Other matters prior to trial. 
 
 VI. 
 
 Trial. 
 
 VII.' 
 
 Costs. 
 
 VIII. 
 
 Judgment and its enforcement. 
 
 IX. 
 
 Appeals. 
 
 
 I. Parties. 
 
 The party prosecuting the action is styled the 
 plaintiff; the adversary is the defendant (§ 3338), 
 
 All persons having an interest in the subject of 
 the action and in obtaining the judgment demanded 
 should be included as plaintiffs (§ 446) ; if a person 
 properly a plaintiff refuses to join he may be made a 
 defendant (§ 448). The real party in interest 
 should be the plaintiff, except that a trustee of an 
 express trust may represent the beneficiary (§ 449). 
 An assignee may sue in his own name ; any claim or 
 
PROCEDURE IN AN ACTION. 25 
 
 demand may be assigned, unless forbidden or made 
 void by statute, or founded on a breach of promise 
 of marriage, or to recover damages for a personal 
 injury (§§ 1909-10). 
 
 All persons having or claiming to have an interest 
 in the controversy adverse to the plaintiffs, and 
 ■whose presence may be necessary to a complete de- 
 termination or settlement of the question involved, 
 should be made defendants (§ 447). 
 
 A husband is never to be joined in an action 
 founded solely upon a right or a liability of the wife 
 (§ 450). An action lies against a person who 
 maliciously and without permission brings an action 
 in the name of another person (§ 1900). 
 
 A person having a right of action, and worth less 
 than one hundred dollars exclusive of such right, 
 may be allowed to sue as a poor person; if so al- 
 lowed, he is not liable for costs, and need pay no fees 
 of court or to his attorney (§§ 458-61). 
 
 Infancy of a plaintiff does not disable him from 
 suing (§§ 468, 1686). An infant party prosecutes 
 or defends by guardian ad litem, who is appointed 
 by the court or judge, and appears on behalf of the 
 infant. Usually an attorney is appointed as such 
 guardian. If the infant is fourteen or over the ap- 
 plication for the appointment of the guardian ad 
 litem is made by him; if he is under that age the 
 application is made by a relative or friend. If an in- 
 fant defendant neglects to procure the appointment 
 of a guardian, the plaintiff may have the appoint- 
 ment made (§§ 470-1). 
 
 If a party has been judicially declared an incom- 
 petent, the committee which the court appoints to 
 
26 A HANDBOOK OF THE CODE. 
 
 preserve his property interests sues or is sued upon 
 any right or liabihty of the incompetent (§ 2340). 
 Since, however, the committee is the court's repre- 
 sentative, a person desiring to sue him should apply 
 to the court appointing the committee for permission 
 to sue. 
 
 An executor or administrator sues or is sued in his 
 representative capacity upon a right or liability of 
 the decedent (§§ 449, 1814). 
 
 A corporation sues or is sued in its corporate 
 name. A mistake in stating its name is waived un- 
 less specially set up in the answer (§ 1777). 
 
 An unincorporated association of seven or more 
 persons may sue or be sued in the name of its presi- 
 dent or treasurer (§ 1919). 
 
 All persons jointly indebted on contract, who are 
 alive and within the jurisdiction of the court, should 
 be made defendants; but the action may proceed 
 against those whom plaintiff is able to serve 
 (§§ 1932-6). 
 
 If the defendant's name is unknown to plaintiff, 
 he may designate the defendant by a fictitious name, 
 adding a description tending to identify the person 
 intended; when the true name is ascertained 'the 
 court may direct an amendment of the prior pro- 
 ceedings by the insertion of the true name ( § 451). 
 
 A person deeming himself a proper party to a 
 controversy may apply to the court and be joined 
 upon his own application ; if a necessary person has 
 been omitted the court may direct that he be made a 
 party (§452). 
 
PROCEDURE IN AN ACTION. 2/ 
 
 II. Obtaining Jurisdiction Over Defendant. 
 
 A formal written notice of the beginning of the 
 action must be served upon the defendant. This 
 notice is termed the summons ; it contains the names 
 of all the parties, plaintiffs and defendants, with the 
 name of the court in which plaintiff has chosen to 
 lay his action, and if he has chosen the Supreme 
 Court, the name of the particular county in which he 
 desires the trial. The plaintiff's attorney subscribes 
 the summons with his name, and office and post- 
 ofifice address ; it informs the defendant that he must 
 answer the complaint in the action, and that if he 
 fails to appear or answer judgment will be taken 
 against him for the relief which the plaintiff de- 
 mands in his complaint (§§ 416-8). 
 
 A mistake in a summons may be corrected by an 
 application to the court for its amendment (§ 723). 
 If a necessary party has been omitted, the court may 
 permit a supplemental summons to issue, directed to 
 him, and substantially in the form of the original 
 summons (§ 453). 
 
 A copy of the complaint may be served with the 
 summons (§ 419). If not so served, a copy of the 
 complaint must be served within twenty days from 
 defendant's demand therefor (§ 479). In matri- 
 monial actions and actions brought to recover stat- 
 utory penalties a summons served without an accom- 
 panying copy of the complaint must contain an in- 
 scription upon it stating the character of the action 
 (§§ 1774, 1897). 
 
 The requirement of service of the summons 
 
28 A HANDBOOK OF THE CODE. 
 
 may be satisfied in eitherof three ways, viz.: (a) 
 personal service, (b) substituted service, (c) vi^aiver 
 'of service by voluntary appearance. 
 
 (a) Personal service is effected by delivering a 
 copy of the summons to the defendant, or to the per- 
 son designated by him for such service during his 
 .absence from the State (§§ 426-30). 
 
 If the defendant is an infant under fourteen 
 years, another copy of the summons must be deliv- 
 ered to his parent or guardian (§ 426). If the de- 
 fendant is an incompetent and has a committee ap- 
 pointed for him, an additional copy must be deliv- 
 ered to the committee (§ 426) ; and if the lunatic's 
 malady vi^ill be aggravated by delivery of a copy of 
 the summons to him, this may be dispensed with 
 
 (§ 429)- 
 
 If the defendant is a domestic corporation, a copy 
 of the summons must be delivered to its president or 
 other head, or its secretary, cashier, treasurer, 
 director or managing agent (§ 431) ; if a foreign 
 corporation, to the president, treasurer, secretary, or 
 officers performing corresponding functions, or to a 
 person designated by the corporation for the pur- 
 pose of such service, or if no such officer or person 
 can be found, then to its cashier, or a director or 
 managing agent within the State (§ 432). 
 
 Such personal service of the summons in an action 
 in a court of record may be made by any person 
 other than the plaintiff (§ 425) ; proof of such ser- 
 vice is made by the certificate of the sheriff, or an 
 affidavit of the person making the service, or by a 
 properly acknowledged or certified admission of 
 
PROCEDURE IN AN ACTION. 29 
 
 service by an adult defendant, each of which must 
 state time and place of service (§ 434). 
 
 Service of the summons in an action in the munic- 
 ipal courts of the City of New York is made by a 
 city marshal, or by any other person who has been 
 first empowered by a justice of that court to make 
 the service (§ 3208). 
 
 (b) Substituted service is allowed only when 
 previously authorized by a judge's order, and is so 
 authorized only when the judge is satisfied that 
 personal service cannot be obtained ; it is of different 
 character and effect when made against a resident, or 
 against a non-resident, of the State. 
 
 Against a resident of the State, the order permit- 
 ting substituted service may be obtained on an affi- 
 davit showing inability to find the defendant after 
 diligent effort (§ 435). The order directs that the 
 substituted service be made by leaving a copy of the 
 summons and the order at the defendant's residence 
 with some person of proper age who will receive it ; 
 or if such a person cannot be found at defendant's 
 residence, by affixing a copy of the summons and 
 order on the door of the defendant's residence, and 
 mailing another set of copies to him ( § 436) . If the 
 defendant's residence cannot be found, service may 
 be made in any other manner which the court may 
 direct (§ 436). This substituted service upon a resi- 
 dent is in its effect substantially equivalent to per- 
 sonal service. 
 
 Against a non-resident of the State, or a foreign 
 corporation, the order permitting substituted service 
 is granted on a verified complaint, and an affidavit 
 showing the non-residence of the defendant and in- 
 
30 A HANDBOOK OF THE CODE. 
 
 ability to effect personal service (§§ 438-9). The 
 summons is directed to be served, either by personal 
 service of the summons, complaint and order outside 
 of the State ; or, by publication of the summons, and 
 a subjoined notice, once a week for six weeks in two 
 newspapers designated in the order, and by mailing 
 at a specified post-office a copy each of the summons, 
 complaint and order directed to the defendant at a 
 place specified in the order (unless the judge be sat- 
 isfied that no address can be ascertained and dis- 
 penses with this requirement of mailing (§§ 440- 
 442). 
 
 If the summons is to be published, then the sum- 
 mons, complaint, order and affidavit must be filed 
 with the clerk of the court on or before the day of 
 first publication (§ 441). 
 
 In order to make this substituted service of any 
 value against a non-resident who defaults in appear- 
 ing in an action brought to obtain a money judg- 
 ment, property of the non-resident must be seized 
 under a warrant of attachment prior to the judg- 
 ment; the judgment entered upon the defendant's 
 default in such case may be enforced only against the 
 property attached (§§ 707, 1307). Therefore if no 
 property has been attached the judgment is unen- 
 forceable. 
 
 (c) A voluntary general appearance by the de- 
 fendant is equivalent to the personal service of the 
 summons upon him (§ 424). This appearance is 
 made by the defendant's attorney serving upon 
 plaintiff's attorney either a demurrer or answer, 
 or a written notice stating that the defendant appears 
 in the action and that the attorney appears for him 
 
PROCEDURE IN AN ACTION. 3 1 
 
 therein. Service of the defendant's answer or de- 
 murrer dispenses with the service of a separate notice 
 of appearance ( § 42 1 ) . 
 
 III. Raising the Issues. 
 
 The "issues" in an action are the disputed facts, 
 or the contested legal obligations. A court has no 
 concern with what all the parties admit, but sits to 
 try the material and disputed issues alone (§ 975). 
 Whatever material fact one of the parties states in 
 his pleading must be denied by the adversary, or for 
 the purposes of the action is taken to be true 
 (§§ 522, 963). 
 
 The issues are "raised," i.e., placed m a form to 
 be tried and determined, by means of the "plead- 
 ings." The possible pleadings, in the order in 
 which they may be interposed, are: Complaint, 
 demurrer, answer, demurrer to answer, reply, de- 
 murrer to reply; each has its peculiar function and 
 will be considered in its order. Each must be sub- 
 scribed by the attorney for the party interposing 
 it, and must be served within twenty days from the 
 service of the preceding pleading (§ 520); except 
 that in the City Court only six days' time is 
 allowed (§ 3166). 
 
 The complaint contains the plaintiff's plain and 
 concise statement of the facts which make up his 
 cause of action, or the two or more causes of action 
 which he desires to bring together (§ 481). The 
 complaint follows the summons in stating the names 
 of the parties, the court which the plaintiff has 
 chosen (and if the Supreme Court the particular 
 
3- A HANDBOOK OF THE CODE. 
 
 county), and is subscribed by the attorney (§§ 481, 
 520). It also contains a demand for the judgment 
 to which plaintiff supposes himself entitled by reason 
 of the facts which he has already stated (§ 481). 
 
 The plaintiff may join two or more causes of 
 action in the same complaint if he so desire, but 
 he is required to separately state and number them 
 (§ 483). In order to permit of such joinder, how- 
 ever, these separate causes of action must be con- 
 sistent with each other, must affect all the parties 
 to the action, and not require different places of 
 trial, and, unless arising out of the same transaction 
 or transactions connected with the same subject of 
 action, must be all of a character included within 
 one of the following subdivisions (§ 484) : 
 
 1. Contract. 
 
 2. Personal injuries, except libel, slander, crimi- 
 nal conversation or seduction. 
 
 3. Libel, slander. 
 
 4. Injuries to real property. 
 
 5. Ejectment with or without damages for its 
 withholding. 
 
 6. Injuries to personalty. 
 
 7. Replevin with or without damages for the 
 taking or detention thereof. 
 
 8. Against a trustee upon contract or by attor- 
 ney at law. 
 
 9. Penalties under the Fish, Forest and Game 
 Laws. 
 
 If a copy of the complaint was not delivered to 
 the defendant with the summons, the defendant's 
 attorney when he serves a notice of appearance may 
 therein demand service of the complaint, and a copy 
 
PROCEDURE IN AN ACTION. 33 
 
 thereof must be served upon him within twenty 
 days thereafter (§ 479); should plaintiff's attorney 
 fail to comply with this demand defendant may 
 have the complaint dismissed (§ 480). 
 
 A demurrer may be interposed by a defendant 
 to raise for judicial determination an issue of law 
 which he believes sufificiently appears on the face 
 of the complaint, that is, from the facts that plain- 
 tiff has stated as constituting his cause of action. 
 The grounds upon which the Code permits a de- 
 murrer to be interposed are (§ 488) : 
 
 1. That the court has not jurisdiction of the 
 defendant's person. 
 
 2. That the court has not jurisdiction of the 
 subject of the action. 
 
 3. That the plaintiff has not legal capacity 
 to sue. 
 
 4. That another action is pending between the 
 same parties for the same cause. 
 
 5. Misjoinder of parties plaintiff. 
 
 6. Defect of parties, plaintiff or defendant. 
 
 7. Improper joinder of causes of action. 
 
 8. That the complaint does not state facts suf- 
 ficient to constitute a cause of action. 
 
 A demurrer merely indicates the particular 
 ground upon which defendant is relying, and the 
 issue of law thus raised is heard and decided upon 
 the complaint alone. This issue of law is triable 
 by the court without a jury (§ 969); the party at 
 fault may be allowed by the trial court, or upon 
 appeal, to plead anew or amend upon terms, 
 usually the payment of costs (§ 497). 
 
34 A HANDBOOK OF THE CODE. 
 
 If any one of the eight grounds of demurrer 
 (save the objections to the court's jurisdiction and 
 the suiliciency of the complaint) appears on the 
 face of the complaint, the objection must be raised 
 by demurrer or is waived (§ 499); no one of these 
 five objections so included goes strictly to the 
 merits of the action. If the grounds of demurrer do 
 not appear on the face of the complaint, but de- 
 fendant believes one or more of them exists, he 
 may take the objections by answer (§ 498). 
 
 An answer by the defendant is necessary to 
 enable him: (a) To contest the truth of the plain- 
 tiff's facts, as stated in the complaint; (b) to present 
 other facts in avoidance of his liability; and (c) to 
 extinguish the liability by offsetting a cross claim 
 against plaintiff, or to secure an affirmative judg- 
 ment against him. As stated in the Code, an 
 answer may contain (§ 500) : (a) A general or 
 specific denial of each material allegation of the 
 complaint controverted by the defendant, or of any 
 knowledge or information sufficient to form a 
 belief; (b) a statement of any new matter consti- 
 tuting a defense or counterclaim in ordinary and 
 concise language without repetition. 
 
 Whatever material fact defendant fails to deny 
 in his answer is taken as true (§ 522) ; the denial 
 which he interposes may be couched in general terms 
 or specify what it denies, or he may in general or spe- 
 cific terms deny any knowledge or information suf- 
 ficient to form a belief as to the truth of some al- 
 legation in the complaint. In no other way can 
 a defendant call upon a plaintiff to prove a material 
 
PROCEDtFRE IN AN ACTION. 35 
 
 fact which the latter has alleged in his complaint, 
 or raise an issue as to its truth ( § § 500, 522 ) . But a 
 denial of an allegation of the corporate capacity 
 of a party is unavailing; the only way defendant 
 may raise an issue on that fact is by affirmatively 
 alleging in his verified answer that the party is not 
 a corporation (§ 1776). 
 
 As "new matter constituting a defense," de- 
 fendant pleads such defenses as the Statute of 
 Limitations (§§ 378, 413), no such corporation 
 (§ ^77^)' misnomer of corporation (§ 1777), any 
 one of the grounds of demurrer not appearing on 
 the face of the complaint (§ 498), and the num- 
 erous other defenses which are required by judicial 
 decision to be stated by the defendant to be available 
 to him. He may set up as many of these afifirmative 
 defenses as he has, legal or equitable, stating and 
 numbering them separately (§ 507). Matter in 
 mitigation of damages, or any other partial defense, 
 may be interposed, but should show that it is claimed 
 to be a partial defense only (§ 508). 
 
 As "new matter constituting a. counterclaim," a 
 defendant sued on a contract liability may interpose 
 any cause of action on a contract existing in his favor 
 against the/ plaintiff, or his assignor, when de- 
 fendant was served with the summons (§ 501). 
 When the action is in tort, defendant's counter- 
 claim must have arisen out of the transaction set 
 forth in the complaint, or be connected with the 
 subject of the action (§ 501). Defendant may use 
 the counterclaim as a set-off, in whole or in part, 
 against plaintiff's claim, or in connection with de- 
 fenses to plaintiff's action defendant may use the 
 
36 A HANDBOOK OF THE CODE. 
 
 counterclaim as the basis of an affirmative judgment 
 against plaintiff (§§ 503-4, 509). If the Statute of 
 Limitations is a bar to a claim it cannot be effectually 
 interposed as a counterclaim (§ 397). 
 
 A demurrer to the new matter constituting a 
 defense may be interposed by the plaintiff on the 
 ground that such new matter is insufficient in law 
 upon its face to constitute a bar to the recovery which 
 he demands (§ 494). 
 
 A demurrer to the defendant's counterclaim 
 may be interposed by plaintiff on the grounds 
 
 (§495): 
 
 1. That the court has not jurisdiction of the 
 subject thereof. 
 
 2. That defendant has not legal capacity to 
 recover upon it. 
 
 3. That another action is pending between the 
 same parties for the same cause. 
 
 4. That the counterclaim is not of the character 
 permitted to be interposed. yC 6 ^ i" »* ) 
 
 5. That the counterclaim does not state facts 
 sufficient to constitute a cause of action. 
 
 Plaintiff's reply is virtually an answer to the 
 new issues tendered by the defendant's answer. 
 The reply may be directed to the new matter set 
 up by the defendant as constituting a defense by 
 way of avoidance; such a reply cannot be served 
 by plaintiff as of right, but only in obedience to an 
 order of the court therefor made upon the de- 
 fendant's application. 
 
 The plaintiff must interpose a reply to each 
 counterclaim which the defendant has included in 
 
PROCEDURE IN AN ACTION. 37 
 
 his answer and upon which an affirmative judgment 
 against plaintiff is asked. This reply may contain 
 denials and new matter constituting a defense by 
 way of avoidance, in the same way as the defendant's 
 answer (§ 514). Should plaintiff fail to reply or 
 demur to such counterclaim, the defendant's right 
 upon default is the same as though default were made 
 in interposing an answer to the complaint (§ 515). 
 
 The defendant's demurrer to the reply is the 
 last possible pleading, and may be interposed on 
 the ground that the new matter which is set up by 
 the plaintiff in avoidance of the defendant's 
 counterclaim is insufficient in law upon its face to 
 constitute a defense (§ 493). 
 
 This completes the raising of the issues by the 
 acts of the parties as shown by their respective 
 pleadings; issues are also raised by statute as 
 follows : An allegation of new matter in the 
 answer to which a reply is not required (that is, new 
 matter constituting a defense by way of avoidance, 
 and new matter constituting a counterclaim upon 
 which no affirmative judgment has been demanded), 
 and an allegation of new matter in a reply, is 
 deemed controverted by the adverse party by 
 denial or avoidance as may be necessary in 
 order to admit the evidence proffered by him 
 (§§ 522, 964). 
 
 A verification upon a pleading is the oath of 
 the party to the truth of the statements therein 
 made (§ 526). When a pleading is verified, all 
 subsequent pleadings, except a demurrer and the 
 
38 A HANDBOOK OF THE CODE. 
 
 answer of an infant by his guardian ad litem, must 
 be properly verified or they may be treated as 
 nullities (§ 528). The statements made in the 
 pleading are taken to be made by the party verify- 
 ing (§ 524); he makes oath that the pleading is 
 true to his knowledge, except as to the matters 
 therein stated to be alleged on information and 
 belief, and that as to those matters he believes it 
 to be true (§ 526). 
 
 The verification must be made by the party 
 (or by one of two or more parties united in interest 
 who is acquainted with the facts) except (i) that 
 where a domestic corporation is the party, it must 
 be made by an officer; (2) where the people, or 
 a public officer on behalf of the people, is the party 
 it may be made by any person acquainted with 
 the facts; (3) where the party is a foreign corpora- 
 tion; or (4) is not within the county where the 
 attorney resides, or (5) where the action or defense 
 is founded on a written instrument for the pay- 
 ment of money only, which is in the possession of 
 the attorney or agent; or (6) where all the material 
 allegations of the pleading are within their personal 
 knowledge, the affidavit of verification may be 
 made by the party's attorney or agent (§ 525). 
 
 If the person verifying is not the party, he must 
 state in his affidavit the sources of his information 
 and the grounds of his belief as to all matters not 
 stated upon his knowledge; he must also add the 
 reason why the verification is not made by the 
 party (§ 526). 
 
 There is no restriction upon the amendment of 
 
PROCEDURE IN AN ACTION. 39 
 
 a pleading within a certain fixed time period, 
 except that the pleading must not be amended 
 solely for the purpose of delay (§ 542). Within 
 twenty days (six days in the City Court) after a 
 pleading, or the demurrer, answer or reply thereto, 
 has been served, a party may once amend it of 
 course, that is, without applying to the court or a 
 judge for permission (§ 542). The amended plead- 
 ing supersedes the original, and default in meeting 
 it by answer or demurrer, when necessary, has the 
 same effect as though it were the original pleading 
 
 (§ 543)- 
 
 At any time before or after trial, the court may 
 permit an amendment of the pleading (§ 723); an 
 immaterial variance between the pleading and 
 proof, viz., a variance which has not actually misled 
 the adverse party, may be ignored, or an immediate 
 amendment made to obviate it (§ 539). A failure 
 to prove a material allegation in its entire scope 
 and meaning is not a variance but a failure of 
 proof, and is not within the power of the court to 
 obviate by amendment (§ 541). 
 
 Irrelevant, redundant or scandalous matter in a 
 pleading may be stricken out upon the application of 
 any person who is harmed thereby (§ 545). 
 
 An indefinite or uncertain denial or allegation 
 may be ordered made definite and certain when its 
 precise meaning or application is not apparent 
 (§ 546). 
 
 A frivolous pleading is one that is plainly insuf- 
 ficient in law to constitute a defense ; such a pleading 
 should not bar the adverse party from the relief he 
 
40 A HANDBOOK OF THE CODE. 
 
 seeks, and upon proper application to the court, if 
 the pleading is held to be frivolous, judgment may 
 be given as though no pleading had been interposed 
 
 (§ 537)- 
 
 A sham pleading is one that is shown to be false 
 in the facts it alleges; such a pleading may be 
 stricken out by the court upon motion (§ 538). It 
 is beyond the power of the court to strike out as 
 sham a defense consisting of properly framed denials 
 of the allegations of the adverse party. 
 
 A supplemental pleading adds some facts occur- 
 ring after service of the party's former pleading, or 
 of which he was ignorant at that time. Such a 
 pleading may be served only upon leave of court first 
 obtained; such a pleading may constitute an addi- 
 tion to the former pleading or take its place (§ 544). 
 
 A bill of particidars of the claim of either party 
 may be ordered by the court to be delivered to the 
 adverse party ( § 531). The office of the bill of par- 
 ticulars is to give facts in addition to those required 
 to be alleged in a pleading, and is awarded to the 
 party showing himself justly entitled thereto in or- 
 der to enable him to prepare his claim or defense. 
 
 The following special provisions affecting the 
 frame of the pleadings either change some com- 
 mon law rule of pleading or create new rules : 
 
 A private statute is sufficiently pleaded by desig- 
 nating its chapter, year of passage and title without 
 setting forth any portion of its contents (§ 530). 
 
 An action may be brought upon an account with- 
 out setting forth the items constituting it; but if 
 such items are not set forth, they must be given to 
 
PROCEDURE IN AN ACTION. 4I 
 
 the adverse party within ten days after his demand 
 therefor. Upon failure to comply with the demand 
 an order may be obtained precluding the party from 
 giving evidence of the account (§ 531). 
 
 A judgment or order of a court of special juris- 
 diction is sufficiently pleaded by alleging it to have 
 been duly given or made; a denial of this allegation 
 requires the facts conferring jurisdiction to be estab- 
 lished at the trial (§ 532). 
 
 Performance of a condition precedent in a con- 
 tract is sufficiently pleaded by alleging that the party 
 "duly performed all the conditions on his part" ; a 
 denial of this allegation requires that such perform- 
 ance be established in detail on the trial (§ 533). 
 
 An instrument for the payment of money only 
 may be pleaded by setting forth a copy and stating 
 that there is due on it a specified sum which the 
 party claims (§ 534). 
 
 In libel and slander plaintiff may allege that the 
 defamatory matter was published or spoken con- 
 cerning him without alleging any extrinsic fact from 
 which its application to plaintiff would appear 
 (§ 535)- The defendant in such an action may 
 allege and prove mitigating circumstances notwith- 
 standing he has already pleaded a justification such 
 as the truth of the charge (§ 535). 
 
 If a party is a corporation, the complaint must 
 so allege, and whether it is foreign or domestic; if 
 the former, the State, country or government by or 
 under whose laws it was created must also be alleged 
 
 (§ 1775)- 
 The corporate capacity of a party is not put in 
 
 issue by a denial; in order to compel plaintiff to 
 
42 A HANDBOOK OF THE CODE. 
 
 prove that fact the answer must be verified and must 
 contain an affirmative allegation that the party is not 
 a corporation (§ 1776). 
 
 Misnomer of the corporation is waived unless 
 specially claimed by the answer (§ 1777). 
 
 A corporation's anszvcr or demurrer to a com- 
 plaint founded upon its unpaid note or other instru- 
 ment for the payment of money only, is ineffective 
 to prevent judgment as if default were made, unless 
 such answer or demurrer is accompanied with a copy 
 of a judge's order directing that the issues presented 
 by the pleadings be tried (§ 1778). 
 
 IV. Provisional and Collateral Remedies. 
 
 For the more effectual preservation or protection 
 of his rights during the pendency of the action, 
 plaintiff may, at the outset of the litigation or at 
 any time prior to the trial, invoke what are called 
 provisional remedies; they are (i) arrest of the 
 defendant; (2) injunction restraining specified acts; 
 (3) attachment of defendant's property; (4) tem- 
 porary receiver (Ch. VII). These same remedies 
 are available to a defendant who interposes a 
 counterclaim upon which he demands an affirma- 
 tive judgment (§ 720). 
 
 Another remedy of somewhat similar character 
 and purpose is the writ of replevin. 
 
 These remedies will be separately considered in 
 detail : 
 
 (a) The order of arrest may be obtained in 
 any of the following actions (§§ 549-550) : 
 
PROCEDURE IN AN ACTION. 43 
 
 To recover a fine or penalty; 
 
 Damages for a tortious injury to person or 
 property; 
 
 Breach of a promise to marry; 
 
 Malpractice and misconduct or neglect in ofifice 
 or professional employment; 
 
 Replevin, where the complaint charges that the 
 chattel is concealed, removed or disposed of; 
 
 Embezzlement or misappropriation of property 
 by an attorney, agent, broker or other fiduciary; 
 
 Embezzlement of public money or the misappro- 
 priation of public property; 
 
 Any action upon contract, where the complaint 
 charges defendant with fraud in incurring the lia- 
 bilit}', or with fraudulent disposition of his property 
 (such fraud must then be proven as a material part 
 of the cause of action) ; 
 
 Any action where the judgment demanded 
 requires the defendant's performance of some act, 
 and the defendant is a non-resident, or, if a resident, 
 is about to depart. 
 
 A woman may be arrested for a wilful injury 
 only (§ 553)- 
 
 The order of arrest is granted by a judge of the 
 court, or any county judge, except that the court 
 must grant the order where the ground of arrest 
 is defendant's non-residence or intended departure 
 (§§ 551-556); application for the order is made 
 upon a verified complaint, or affidavit, showing a 
 sufficient cause of action of a character above speci- 
 fied, and plaintifif must furnish an undertaking in 
 at least the sum of $250 (§§ 557-9). 
 
 The order must be subscribed by the plaintiff's 
 
44 A HANDBOOK OF THE CODE. 
 
 attorney, and by the judge, and requires the sheriff 
 to arrest the defendant and hold him to bail in a 
 specified sum (.§ 561). 
 
 A defendant may at any time before final judg- 
 ment apply to vacate the order; if made upon the 
 plaintiff's papers only, the application may be made 
 to the same judge with or without notice to plain- 
 tiff, or to the court upon notice; if on further affi- 
 davits submitted by defendant ^the application may 
 be made to any judge of the court or to the court, on 
 notice, and may be opposed by new proofs submitted 
 by plaintiff (§§ 567-8). 
 
 The defendant after arrest is given reasonable 
 opportunity to procure bail, and upon giving bail 
 or depositing its amount in money, he must be dis- 
 charged (§ 573). He may elect to give bail for the 
 jail liberties only (§ 574). 
 
 Unless discharged upon giving bail, the sheriff 
 must keep the defendant in his custody until dis- 
 charged according to law (§ 563), which will be 
 after six months' imprisonment vmder a body 
 execution upon a judgment in the action in favor 
 of plaintiff for $500 or over, and three months upon 
 a judgment for a lesser sum (§11 1). 
 
 (b) An injunction order may be issued restrain- 
 ing specified acts of the defendant until the trial 
 (called, variously, a temporary injunction, or in- 
 junction pendente lite) (§ 602). Such an injunc- 
 tion order may be obtained (§ 603) : 
 
 I. Where the complaint demands and its allega- 
 tions show that plaintiff is entitled to a permanent 
 injunction restraining the commission or continu- 
 
PROCEDURE IN AN ACTION. 45 
 
 ance of the acts sought to be enjoined pending 
 trial; 
 
 2. Where defendant is doing or is about to do 
 some act which will impair plaintiff's rights re- 
 specting the subject of the action; 
 
 3. Where defendant threatens or is about to 
 fraudulently dispose of or remove his property. 
 
 The order is granted by the court or a judge 
 thereof, or any county judge, upon a verified com- 
 plaint or affidavit showing the necessary facts, 
 accompanied by an tmdertaking for at least $250 
 (§§ 606-7, 620). The order may be granted to 
 accompany the summons, or at any time before 
 final judgment; it may be granted without notice, 
 unless defendant has previously answered; it is dis- 
 cretionary, however, with the court or judge to 
 require a notice in any case (§§ 608-9). 
 
 The order briefly recites the grounds for the in- 
 junction; if a court order, a certified copy thereof 
 must be delivered to the defendant, but if a judge's 
 order, the original must be shown and a copy de- 
 livered to him; in each case copies of the papers 
 upon which the order was granted must also be 
 delivered (§ 610). 
 
 An injunction to restrain a State officer or his 
 employee from the performance of a statutory duty 
 may be granted only by the Supreme Court, and 
 upon notice (§ 605). An order granted without 
 notice may be vacated without notice upon de- 
 fendant's application, on the papers on which it 
 was granted, and by the judge or court granting 
 it, or by the Appellate Division (§ 626); defendant 
 may apply upon notice to vacate the order upon 
 
46 A HANDBOOK OF THE CODE. 
 
 further affidavits on his behalf, which appHcation 
 may be made to the judge granting the order or to 
 a proper term of the court, and plaintiiY may oppose 
 such an appHcation by new proof (§ 627). 
 
 The damages suffered by the defendant by 
 reason of the improvident granting of such an in- 
 junction order may be summarily determined by 
 the court, or upon a reference, or a writ of 
 inquiry; the amount of damages so ascertained is 
 conclusive upon the plaintiff and his sureties 
 (§ 623). 
 
 (c) A warrant of attachment of a specified 
 amount of defendant's property pending the litiga- 
 tion may be obtained where the action is brought 
 to recover a sum of money only, for either (§ 635) : 
 
 1. Breach of contract, express or implied, other 
 than a contract to marry; 
 
 2. Wrongful conversion of personal property; 
 
 3. An injury to person or property in conse- 
 quence of negligence, fraud or other wrongful act. 
 
 Plaintff must show by verified complaint, or 
 affidavit, or both, that one of the above causes of 
 action exists, and either (§ 636) : 
 
 1. That defendant is a non-resident or a foreign 
 corporation; 
 
 2. Or has departed from the State with intent 
 to defraud his creditors or avoid service; 
 
 3. Or keeps himself concealed with the like 
 intent; 
 
 4. Or has removed or intends to remove 
 property from the State with intent to defraud 
 creditors; 
 
PROCEDURE IN AN ACTION. 47 
 
 5. Or has assigned, disposed of or secreted, or 
 is about to assign, dispose of or secrete, property 
 with Hke intent; 
 
 6. Or has made and signed, or caused to be 
 signed, a false statement in writing as to his finan- 
 cial responsibility, for the purpose of procuring or 
 extending his credit; 
 
 7. Or has been continuously absent from the 
 State for more than six months, and has not 
 designated a person upon whom a summons may 
 be served in his behalf, or the person so designated 
 cannot after diligent effort be found. 
 
 If the action is brought upon contract, plaintiff's 
 affidavit must show that he is entitled to recover a 
 sum stated therein over and above all counter- 
 claims known to him (§ 636); and if the damages 
 are unliquidated in amount, the affidavit should 
 show facts from which the amovmt of damages may 
 be ascertained. 
 
 The warrant may be granted by a judge of the 
 court or any county judge, to accompany the sum- 
 mons, or at any time before final judgment; but if 
 the summons is not already served, personal service 
 must be effected within thirty days after the grant- 
 ing of the warrant, or service made without the 
 State or publication of the summons commenced 
 pursuant to an order therefor (§ 638). Plaintiff 
 must, upon applying for the warrant, present an un- 
 dertaking in at least $250 (§ 640). The warrant 
 must be subscribed by the judge and by plaintiff's 
 attorney, must briefly recite the particular ground 
 of the attachment, and must require the sheriff to 
 attach so much of the defendant's property, within 
 
48 A HANDBOOK OF THE CODE. 
 
 his county, as shall satisfy the plaintiff's demand 
 with costs and expenses (§ 641). 
 The sheriff may attach: 
 
 1. The defendant's interest in real property, 
 whether vested or not vested, if capable of being 
 aliened; 
 
 2. Any leviable interest in personal property; 
 and in addition thereto, the further interest in per- 
 sonal property which cannot be reached under an 
 execution against property as follows : 
 
 3. A sum owing by a person within the county 
 to a foreign corporation, defendant, on a sub- 
 scription to its stock (§ 646) ; 
 
 4. The interest which defendant has in stock of 
 a corporation or association (§ 647); 
 
 5. A cause of action arising upon contract, 
 including any instrument for the payment of money 
 belonging to the defendant and found within the 
 county (§ 648). 
 
 For the purpose of ascertaining the whereabouts 
 of any leviable interest or right possessed by the 
 defendant, the sheriff may demand that he be fur- 
 nished by the defendant's debtor, or a person holding 
 any of the defendant's property, with a certificate of 
 the amount and character of the debt or property, 
 and by an officer of a corporation with a certificate 
 of the amount and character of the defendant's in- 
 terest in the stock of the corporation (§ 650). If 
 such certificate is not furnished the sheriff, or is 
 false or defective, the person required to make it 
 may be required to submit to an examination 
 under cath as to such matters (§ 651). 
 
PROCEDURE IN AN ACTION. 49 
 
 The levy by the sheriff is made (§ 649) : 
 
 Upon real property, by filing with the county 
 clerk the notice of attachment stating the parties, 
 amount of the claim, and description of the property 
 attached ; 
 
 Upon personal property capable of manual deliv- 
 ery, by the sheriff's taking actual possession thereof 
 and delivering to the person from whose custody it 
 is taken a copy of the warrant and affidavit ; 
 
 Upon other personal property, by leaving a cer- 
 tified copy of the warrant and a notice specifying the 
 property attached with the person holding the same 
 or against whom the demand exists, or an officer of 
 the corporation in which the defendant owns stock. 
 
 The sheriff must file with the county clerk an in- 
 ventory and appraisement of the property attached 
 (§ 654). He may collect all debts and other things 
 in action attached, and for that purpose may bring 
 actions in his own name or in the name of the de- 
 fendant in the attachment action (§655). If the 
 defendant is a non-resident, and has been served 
 without the State or by publication and has not ap- 
 peared in the action, the sheriff may maintain an 
 action against any person to compel the disclosure 
 of property belonging to the attachment debtor 
 
 (§655)- 
 
 A sheriff may be required to sell attached perish- 
 able property at public auction (§ 656) ; he may try 
 a claim interposed by a third person of title to 
 attached property, and if the jury decides in favor 
 of the claimant, must deliver such property to him, 
 unless indemnified by the plaintiff (§§ 657-8)- 
 
50 A HANDBOOK OF THE CODE. 
 
 Otherwise the sheriff keeps the property attached 
 to answer any judgment against the defendant 
 
 <§ 674). 
 
 The defendant, or any person who has acquired 
 a lien upon the attached property subsequent to 
 the attachment, may apply to vacate or modify the 
 warrant; if founded entirely upon the plaintiff's 
 papers, the application may be made, without 
 notice, to the judge who granted the warrant, or 
 upon notice, to the court. If the application is 
 made upon further afSdavits, presented by the de- 
 fendant, it may be made upon notice only and may be 
 opposed by new proof on plaintiff's part tending 
 to support any ground for the attachment recited 
 in the warrant (§§ 682-3). 
 
 The court may discharge the attachment upon 
 defendant giving proper security that he will pay 
 to the plaintiff the amount of any judgment recov- 
 ered (§§687-95). 
 
 A judgment recovered against a non-resident or 
 foreign corporation is enforceable only against the 
 attached property in case the defendant has been 
 served with the summons without the State or by 
 publication, and did not appear in the action 
 {§ 707)- 
 
 (d) A temporary receiver may be appointed for 
 the protection of property (including the rents, 
 profits or income of real or personal property) 
 which is the subject of the action (§ 713) : 
 
 I. Before final judgment, where the property 
 is in the possession of one of the litigants, and there 
 is danger that it will be removed, lost, materially 
 injured or destroyed; 
 
PROCEDURE IN AN ACTION. 5 I 
 
 2. By or after final judgment, to carry the 
 judgment into effect or dispose of the property; 
 
 3. To preserve the property during the pendency 
 of an appeal. 
 
 The appointment is made upon notice to the 
 adversary, unless he is in default, or unless he is a 
 non-resident and substituted service is pending 
 
 (§ 714). 
 
 The receiver contemplated by these sections is 
 merely a temporary statutory officer with such 
 powers as are specially conferred upon him. 
 
 (e) The writ of replevin secures the attachment 
 of the particular chattels which are the subject of 
 plaintiff's action. Plaintiff's attorney subscribes 
 and delivers to the sheriff of the county where the 
 chattels are to be found a written requisition to the 
 effect that the sheriff is required to replevy the 
 chattels described therein; such requisition is 
 deemed the mandate of the court (§ 1694). With 
 the requisition there must be delivered to the 
 sheriff an affidavit which must particularly describe 
 the chattels to be replevied and their value, and 
 must allege (§ 1695) • 
 
 1. That plaintiff is the owner or has a special 
 property interest therein; 
 
 2. That they are wrongfully detained by de- 
 fendant; 
 
 3. The alleged cause of the detention by de- 
 fendant; 
 
 4. That they have not been taken in proceedings 
 for the collection of a State or Federal tax, assess- 
 ment or fine; 
 
52 A HANDBOOK OF THE CODE. 
 
 5. That they have not been seized under execu- 
 tion or warrant of attachment. 
 
 An undertaking in a sum not less than twice the 
 value of the chattels as stated in the affidavit must 
 also accompany the requisition; it in terms binds 
 the sureties to the return of the chattels to the 
 defendant if the return thereof be adjudged to 
 him (§1699). 
 
 The sheriff must forthwith take the chattels into 
 his possession (or so many as he can find), if found 
 in the possession of the defendant or his agent, and 
 must leave with him a copy of the requisition, 
 affidavit and undertaking (§ 1700). The chattels 
 must then be kept by the sheriff until the person 
 entitled to their possession is ascertained, where- 
 upon he must deliver them to such person upon 
 payment of his fees (§ 1702). 
 
 The defendant may regain possession of the 
 chattels from the sheriff by serving upon the sheriff, 
 within three days after the replevying of the 
 chattels, a notice that he requires their return, and 
 with the notice delivering to the sheriff an affidavit 
 alleging ownership or special property and an under- 
 taking, substantially similar to the plaintiff's like 
 papers (§ 1704). 
 
 Pending the trial of the action, the custody of 
 the chattels is awarded to the plaintiff, if the 
 stireties upon his undertaking are not excepted to 
 by the defendant (§ 1703), or if excepted to, are 
 allowed as sufficient (§ 1705), and the defendant 
 does not apply to re-claim the chattels and procure 
 the justification and allowance of the sureties upon 
 his undertaking (§§ 1704-5). In the latter case, 
 
PROCEDURE IN AN ACTION. 53 
 
 the sheriff delivers the chattels to the defendant and 
 delivers to the plaintiff the original undertaking of 
 the defendant and his sureties with the examination 
 of the sureties and the judge's allowance of them 
 (§ 1708). 
 
 Final custody of the chattels is awarded only 
 after the trial; the judgment establishes the right 
 to the possession in one of the parties and fixes the 
 value of the chattel in case delivery cannot be had 
 (§ 1730). Recourse to the undertaking given by 
 the party securing the custody of the chattels from 
 the sheriff may be had only after the return un- 
 satisfied of an execution issued to the sheriff 
 directing him to deliver possession of the chattel to 
 the successful party, or if not found, to satisfy the 
 sum awarded by the judgment out of the property 
 of the unsuccessful party (§ 1733). 
 
 V. Other Miscellaneous Proceedings Prior 
 to Trial, 
 
 1. Security for costs. 
 
 2. Tender and oifer of judgment. 
 
 3. Discovery and inspection. 
 
 4. Depositions. 
 
 5. Preparation of documentary evidence. 
 
 6. Place of trial. 
 
 7. Bringing to trial. 
 
 I. Security for costs may be required of the 
 plaintiff whenever plaintiff, at the commencement 
 of the action, is : 
 
54 A HANDBOOK OF THE CODE. 
 
 1. A non-resident. 
 
 2. A foreign corporation. 
 
 3. A person imprisoned under execution. 
 
 4. The official trustee or assignee of a debtor or 
 bankrupt. 
 
 5. An infant whose guardian ad litem has not 
 given security (§ 3268). 
 
 Such security may be required after commence- 
 ment of the action where plaintift ceases to be a 
 resident of the State, or is adjudicated a bankrupt 
 or an insolvent, or is sentenced to imprisonment 
 for less than life (§ 3269). 
 
 Defendant cannot require such security of some 
 of several plaintiffs unless he is entitled to require 
 it of all of them (§ 3270). 
 
 A court or a judge, on proof by affidavit showing 
 defendant entitled to require such security, must 
 make an order that plaintiff deposit $250 in 
 court to be applied to payment of the costs 
 awarded against him, or file an undertaking in a 
 like amount, and that all his proceedings be stayed 
 meantime (§ 3272). If plaintiff files an under- 
 taking, the surety or sureties thereon must show 
 financial sufficiency if excepted to by defendant 
 
 (§§ 3274-5)- 
 
 Until such security is given, plaintiff's attorney 
 is personally liable for costs to the extent of $100, 
 if defendant is entitled to require such security at 
 the time of the commencement of the action 
 (§3278). 
 
 The right to require security is held to be waived 
 unless asserted by defendant with reasonable 
 promptness. 
 
PROCEDURE IN AN ACTION. 55 
 
 The court may, in its discretion, require similar 
 security for costs from a person suing in a repre- 
 sentative capacity, or as trustee of an express trust 
 (§ 3271)- 
 
 2. Defendant may make a tender at any time 
 before trial of the amount of the accrued costs and 
 such sum as he considers fairly due, when sued 
 upon contract, or for a casual or involuntary injury 
 to person or property (§ 731). If such tender is 
 not accepted, the amount must be paid into court 
 to make it eiTective (§ 732). If it afterward prove 
 to have been sufificient in amount, defendant may re- 
 cover of the plaintifif the costs of the action accruing 
 after the tender was made (§ 733). Plaintiff may 
 accept the amount tendered and continue the action, 
 but the question of costs is determined by whatever 
 further sum he recovers (§ 734). 
 
 Defendant may with his answer make a written 
 offer permitting assessment of the damages 
 at a specified sum (in case he fails in his defense) 
 in an action for breach of contract; if plaintiff 
 accepts this offer, the damages awarded to him 
 must be assessed at such sum (§ 736). If the offer 
 is refused, it cannot be proven at the trial, and if 
 plaintiff's recovery of damages does not exceed the 
 sum offered he must pay defendant's costs incurred 
 in trying that question (§ 'J2,i)- 
 
 Defendant may before trial serve an offer to 
 allow judgment at a fixed sum ; if plaintiff ac- 
 cepts the offer within ten days, he may enter 
 judgment accordingly, on the offer and acceptance; 
 if the offer is not accepted it cannot be proven at 
 
56 A HANDBOOK OF THE CODE. 
 
 the trial, and plaintiff must obtain a more favorable 
 judgment or pay defendant's costs from the time 
 of the offer (§ 738). Similar proceedings may be 
 had regarding a counterclaim which is greater than 
 plaintiff's claim or reduces it below $50 (§ 739). 
 Such offer and acceptance must each be subscribed 
 by the attorney, who must add an affidavit that he 
 is authorized to make it on behalf of the party 
 (§ 740). 
 
 3. A discovery and inspection of books, 
 documents or other papers in the possession or 
 control of a party, and relating to the merits of 
 the action, or the defense, may be allowed to the 
 adverse party prior to trial (§ 803). y^ ^/j"-y^- 
 
 The order for the discovery may be granted by 
 the court or judge, and may direct the party against 
 whom it is sought to allow it or show cause why 
 it should not be allowed; the application for the 
 order is made upon a petition (§ 805). The 
 petition must show the particular grounds upon 
 which the right to such inspection is claimed, and 
 that the documents are under the control of the 
 adverse party; the order may either require the 
 delivery of sworn copies of the matters to be dis- 
 covered or an inspection with copy, or require the 
 production and deposit of the documents with the 
 clerk within a specified time (§ 804; Court Rules 
 15 and 16). 
 
 4. Depositions may be taken as follows : 
 Of a party (§870); 
 
 Of a person within the State not a party (§ 871); 
 Of a party or person who is out of the State 
 (§ 887). 
 
PROCEDURE IN AN ACTION. 57 
 
 Depositions within the State are taken before a 
 judge or a referee (§ 873); outside of the State they 
 are usually taken before some- commissioner named 
 in the commission (§ 901). 
 
 The deposition of a party may be taken at his own 
 instance, or at the instance of the adverse party, only 
 when some special reason exists therefor which ren- 
 ders such an examination prior rather than at the 
 time of the trial desirable and proper. 
 
 In an action to recover damages for personal in- 
 juries, plaintiff may be required, on defendant's 
 application, to submit to a physical examination be- 
 fore a referee by physicians designated by the court 
 or judge (§ 873). 
 
 The deposition of a person within the State, other 
 than a party, may be taken when it is shown that 
 such person is about to depart from the State, or is so 
 sick or infirm as to probably be unable to attend 
 at the trial (§ 872). Such deposition cannot be 
 read on the trial until it is first shown that the 
 witness is dead, unable to attend because of physi- 
 cal condition, or absent from the State (§ 882). 
 It is called a deposition de bene esse. 
 
 The deposition of a person without the State is 
 usually taken upon written interrogatories pre- 
 pared by the contending parties, settled by a judge 
 of the court in case of a dispute, and annexed to the 
 commission authorizing the taking of the deposi- 
 tions (§ 891-2). The witnesses' answers to these in- 
 terrogatories are taken before the commissioner, 
 subscribed by the witness and delivered to the com- 
 missioner. The entire record is then returned to 
 the court where the action is pending (§ 901) and 
 
58 A HANDBOOK OF THE CODE. 
 
 remains open to the inspection of the parties, and 
 may be read upon the trial unless previously 
 ordered by the court to be suppressed for unfair 
 conduct on the part of the party taking it 
 (§§909-11). 
 
 All objections to the admissibility of the evidence 
 and to the questions arc made when the deposition 
 is being read at the trial, as though the witness 
 were then being personally examined (§§ 883, 911). 
 
 5. Preparation of documentary evidence must 
 of course precede the trial. 
 
 A party may exhibit a document to his adversary 
 and require an admission of its genuineness; re- 
 fusal to so admit may charge the refusing party 
 with the expenses of establishing its genuine 
 character (§ 735). 
 
 A party or person having the custody of a 
 document material to the issues may be compelled 
 to produce it in court by the service of a subpoena 
 duces tecum (§§ 852-3). Such a subpoena to 
 produce a book of account must be served five 
 days in advance of the trial (§ 867). 
 
 A law of this, or any other State, or country, may 
 be read in evidence from a volume purporting to be 
 printed under the direction of the Secretary of 
 State, or by the authority of such country 
 
 (§§ 932, 942). 
 
 A certified copy of a paper filed or recorded in 
 a public office, or court, of this State is evidence 
 without further proof (§ 933). The certifying 
 officer must state in his certificate that it has been 
 compared by him with the original, that it is a cor- 
 
PROCEDURE IN AN ACTION. $9 
 
 rect transcript therefrom and of the whole of the 
 original, and if he has a seal it must be attached 
 
 m 957-8)- 
 
 Any written instrument other than a promissory 
 note, bill of exchange or last will, may be acknowl- 
 edged before a notary public or other authorized 
 officer, or may be proved by the affidavit of a sub- 
 scribing witness and certified to by the notary, and 
 such instrument is admissible in evidence without 
 further proof of its genuineness, provided, however, 
 the authority of the officer taking the acknowl- 
 edgement or proof is properly shown when neces- 
 sary (§§ 935-7). This requirement is the same as 
 if the instrument were a conveyance of real 
 property, and filed for record in the county where 
 it is offered in evidence (§ 935). 
 
 If a party desires to show that a paper required 
 by law to be filed has not been filed, a certificate 
 under the hand and seal of the officer to whom its 
 legal custody belongs to the effect that he has 
 made diligent examination in his office and that 
 the paper cannot be found, is presumptive evidence 
 that such a paper has not been filed (§ 921). 
 
 6. The proper place of trial (venue) of an is- 
 sue of fact in an action is the county where one 
 of the parties resides at the time of the commence- 
 ment of the action (§ 984) ; except that all actions 
 affecting real property or an interest therein must 
 be brought in the county where some part of it is 
 situated (§ 982), and an action against a public offi- 
 cer or to recover a statutory fine or penalty must be 
 brought in the county where the cause of action arose 
 (§ 983). 
 
<6o A HANDBOOK OF THE CODE. 
 
 If neither of the parties resides within the State, 
 the action (unless belonging to one of the above 
 exceptions) may be tried in the county which the 
 plaintiff has designated in his complaint (§ 984). 
 
 If plaintiff has designated a wrong county, the 
 place of trial may be changed by the court to the 
 proper county if plaintiff refuses to comply with 
 defendant's demand therefor served with or prior 
 to his answer (§ 986). If defendant does not 
 object, the action may be tried in a county which 
 is not the proper county (§ 986). 
 
 The court may at any time upon application 
 change the place of trial to another county where 
 there is reason to believe that an impartial trial can- 
 not be had in the proper county, or the convenience 
 of witnesses and the ends of justice will be promoted 
 by such a change (§ 987). 
 
 An issue of law (vipon demurrer) may be tried 
 in any county within the judicial district emb''acing 
 the county where an issue of fact in such action 
 would be tried (§ 990). 
 
 If plaintiff has begun his action in a county 
 court, or in the City Court of the City of New 
 York, the Supreme Court may remove the action 
 to that court for the purpose of changing the place 
 of trial to the proper county (§§ 319, 343). 
 
 7. Either party has the right of bringing the 
 case to trial by serving a notice upon the 
 adverse party to the effect that the action will be 
 brought to trial at a specified term of the court com- 
 mencing on a specified day, or as soon thereafter as 
 counsel can be heard; such notice of trial must be 
 personally ser\'ed upon the attorney for the adverse 
 
PROCEDURE IN AN ACTION. 6l 
 
 party at least fourteen days before the term com- 
 mences, or eighteen days prior thereto if the notice 
 is served by mail (§ 977). 
 
 At least twelve days before the term commences 
 a memorandum must be filed with the clerk of the 
 court showing the title of the action, the attorneys 
 for the respective parties, the time when the last 
 pleading was served, and the character of the 
 issue — that is, whether of fact or of law, and if an 
 issue of fact, whether triable by a jury or by the 
 court without a jury; such memorandum is termed 
 the "note of issue" (§ 977). The clerk arranges 
 the issues into two classes, viz., of fact, and of law, 
 and enters the cases on the calendar according to 
 the time when the last pleading was served 
 (§§ 977"8)- If a jury is in attendance at the term, 
 jury cases are first disposed of; otherwise, issues of 
 law have the preference (§ 978). 
 
 Actions by or against the State or public 
 authorities, or against the City of New York, may 
 be given preference over other actions; preferences 
 are also allowed in actions in which a representative 
 of a decedent or an infant is the sole party plain- 
 tiff or defendant, actions relating to the probate of 
 wills and appeals from the determinations of the 
 Surrogate respecting the administration of estates, 
 actions for partition, for libel or slander, and other 
 actions entitled to preference under the general rules 
 of practice or by special order of the court in par- 
 ticular cases (§ 791). 
 
 Such preference must be claimed by the party enti- 
 tled to assert it. In order to obtain a preference in 
 New York County, a notice that application therefor 
 
62 A HANDBOOK OF THE CODE. 
 
 will be made at a time specified in the notice must be 
 served with the notice of trial, and if the right to 
 the preference does not appear from the pleadings, 
 the notice must be accompanied by an affidavit 
 showing the necessary additional facts (§ 793). 
 
 VI. The Trial. 
 
 1 . Mode of trial. 
 
 2. Provisions relating to the evidence. 
 
 I. The mode of trial is determined by the char- 
 acter of the action, as shown by the complaint. But 
 a counterclaim upon which affirmative judgment is 
 demanded must be tried as though it arose in an ac- 
 tion brought by the defendant (§ 974). All cases 
 are triable at a term held by a single judge, either 
 with or without a jury ( § 976) . 
 
 The following actions are triable by a jury 
 (§968): 
 
 (i) An action in which the complaint demands 
 judgment for a sum of money only; (2) Ejectment; 
 (3) Dower; (4) Waste; (5) Nuisance; (6) To re- 
 cover a chattel (replevin) ; (7) To annul a corpora- 
 tion (§ 1800). 
 
 If properly demanded, a jury trial of some of the 
 issues is a matter of right in actions for partition 
 (§ 1544), annulment of marriage (§ 1753), divorce 
 (§1757). In such actions the issues to be tried by 
 the jury are stated in a court order made upon the 
 application of either party (§ 970). The verdict of 
 the jury is conclusive upon the issues so submitted; 
 if any issues remain they are decided by the court 
 (§972). 
 
PROCEDURE IN AN ACTION. 63 
 
 The court may, in its discretion, in any other case 
 brought before it for trial, direct that certain ques- 
 tions of fact in issue be tried by a jury (§ 971 ) . The 
 order therefor is all that is necessary (§ 823) ; the 
 verdict of the jury in such case is merely advisory. 
 
 A trial by jury may be waived by a written waiver, 
 or by an oral consent in open court, or by moving 
 the trial of the action at a term without a jury, or if 
 the adverse party so moves it, by failing to claim a 
 jury trial, or it may be waived by failing to appear 
 at the trial (§ 1009). 
 
 All actions not triable by jury must be tried by the 
 court unless a reference is directed (§ 969). 
 
 A reference must be ordered upon consent of all 
 parties, except in matrimonial actions, or where a 
 defendant is an infant, or where a corporation is 
 sought to be dissolved (§ ion), but in these ex- 
 cepted cases the court may, in its discretion, grant a 
 reference upon consent (§ 1012). The court may 
 of its own motion direct a reference where the trial 
 will require examination of a long account and will 
 not require the decision of difficult legal questions 
 (§1013). A referee has the general powers of the 
 court in conducting the reference (§ 1018). No 
 person may be appointed a referee to whom all the 
 parties object, save in a matrimonial action 
 (§ 1024). 
 
 The decision of a jury takes the form of a ver- 
 dict, which may be general or special ; by a general 
 verdict the jury pronounces, generally, in favor of 
 one party, while by a special verdict the jury finds 
 the facts only, leaving the court to determine which 
 
64 A HANDBOOK OF THE CODE. 
 
 party is entitled to judgment thereupon (§ 1186). 
 The clerk enters the verdict in his minutes and must 
 enter a judgment in conformity therewith unless the 
 court otherwise directs (§ 11 89). The presiding 
 judge may order the verdict set aside if, in his opin- 
 ion, it is excessive or insufficient or contrary to the 
 evidence or the law (§ 999)- 
 
 The decision of the court without a jury is made 
 in writing, signed by the judge and filed with the 
 clerk (§ loio). It may state the facts which 
 the judge has found to be established and the legal 
 conclusions which he draws therefrom, or it may 
 state concisely the grounds upon which the issues 
 have been decided ; the decision also directs the judg- 
 ment to be entered thereon (§ 1022), and judgment 
 is so entered by the clerk (§ 1228). 
 
 The decision of a referee is called his "report," 
 and when he has been appointed to hear and deter- 
 mine the issues, it is similar in form to the decision 
 of the court without a jury (§§ 1019, 1022). Judg- 
 ment is then entered upon it by the clerk without ap- 
 plication to the court, except in matrimonial actions 
 (§§ 1228-9). 
 
 2. A few important provisions relating to evi- 
 dence are to be found in the Code, and may be best 
 referred to here. They chiefly comprise changes in 
 certain common law rules of evidence which other- 
 wise would be applied by the courts. 
 
 Testimony in equity cases is taken in like manner 
 as in cases at law (Const., Art. VI, Sec. 3). The 
 early method of presenting evidence in a court of 
 chancery was by deposition alone. 
 
PROCEDURE IN AN ACTION. 65. 
 
 A witness is competent — i.e., must be permitted 
 to give his testimony — notwithstanding he is a 
 party, or the wife or husband of a party, or other- 
 wise interested in the event of the action (§ 828). 
 Such interest may be shown by the adverse party tO' 
 affect the weight of his testimony. 
 
 But as to certain particular matters certain wit- 
 nesses cannot testify — i.e., they are under a hmited 
 and particular disability : 
 
 1. When the action is against the representative 
 of a decedent or a lunatic, or a person deriving his 
 title in some way through such decedent or lunatic, 
 a witness who is a party to the action or has an in- 
 terest in its event, or is the predecessor in title to a 
 party or interested person, cannot be examined in 
 his own behalf, or in behalf of the party or person 
 succeeding to his title, regarding a personal transac- 
 tion or communication with the decedent or the lu- 
 natic; unless the defendant is examined in his own 
 behalf, or the evidence of the decedent or lunatic is 
 first given in evidence, concerning the same transac- 
 tion or communication (§ 829). The mouth of the 
 real adverse party being closed by death or insanity, 
 the mouth of the capable party to the transaction is 
 
 hus closed by statute as to anything of a personal 
 ature transpiring between them. 
 
 2. A husband or a wife (a) cannot testify in his 
 or her behalf in an action for absolute divorce as to 
 any matters whatever, except to prove the marriage 
 and disprove the allegation of adultery, or (b) in 
 any action cannot be compelled, or without the con- 
 sent of the other, be permitted to disclose a confiden- 
 tial communication made by one to the other during- 
 
66 A HANDBOOK OF THE CODE. 
 
 marriage, or (c) in an action for criminal conver- 
 sation by the husband, the wife is not a competent 
 witness for the husband for any purpose ( § 83 1 ) . 
 
 3. A clergyman is not allowed to disclose a con- 
 fession made to him in the course of discipline under 
 the rules or practice of his religious body (§ 833). 
 
 4. A physician or surgeon is not allowed to dis- 
 close any information which he acquired in profes- 
 sional attendance upon a patient, which was neces- 
 sary to enable him to act (§ 834). 
 
 5. An attorney, or his clerk, stenographer or em- 
 ployee, is not allowed to disclose a communication 
 made to him by a client or his advice given thereon 
 in the course of the attorney's professional employ- 
 ment (§835). 
 
 These last three provisions establish rights for the 
 benefit only of the person confessing, the client, or 
 the patient, and mvist be expressly waived by them at 
 the trial in open court ; the attorney for a party may, 
 however, stipulate for such waiver prior to the trial, 
 but a waiver signed by a party prior to the trial is 
 insufficient (§ 836). Where the patient is dead, his 
 personal representative may permit the physician or 
 surgeon to disclose information as to the mental or 
 physical condition of the patient, except confidential 
 communications and facts which would tend to dis- 
 grace the memory of the patient (§ 836). On a con- 
 test over the validity of a will, any party interested 
 for or against the will may waive the physician's 
 privilege, with the same limitations as to confidential 
 communications and facts tending to disgrace the 
 memory of the patient (§ 836). If the attorney is a 
 subscribing witness to a client's will, he is not dis- 
 
PROCEDURE IN AN ACTION. 67 
 
 qualified from testifying as to its preparation and 
 execution (§ 836). 
 
 The fact that a witness has been convicted of a 
 crime or misdemeanor does not render him incom- 
 petent, but may be proven for the purpose of affect- 
 ing the weight of his testimony ; he must answer any 
 question relevant to that inquiry, and the cross-ex- 
 aminer is not bound by the answer, for the convic- 
 tion may be proved by the record of it (§ 832). 
 
 A witness is not excused from answering a ques- 
 tion on the ground that the answer may tend to 
 establish the fact that he owes a debt or may subject 
 him to a civil suit; but he is not required to give an 
 answer which will tend to accuse himself of a crime 
 or misdemeanor, or expose him to a penalty or for- 
 feiture (§ 837). 
 
 The evidence of a party to the action brought out 
 at the instance of the adverse party may be rebutted 
 by other evidence (§ 838). 
 
 A seal upon an instrument, the provisions of 
 which have been fully executed, constitutes conclu- 
 sive evidence of a consideration ; upon an executory 
 instrument, it is only presumptive evidence that 
 there was a consideration, and such presumption 
 may be rebutted (§ 840). 
 
 A person upon whose life an interest in real prop- 
 erty depends is presumed to be dead if he absents 
 himself for seven years, and unless it is affirmatively 
 proven he was alive within that time (§841). After 
 a fund arising out of the partition of real property 
 and payable to unknown heirs has been in the public 
 custody for twenty-five years, a presumption arises 
 that there were no such heirs living (§ 841). 
 
68 A HANDBOOK OF THE CODE. 
 
 VII. Costs. 
 
 Certain sums fixed by statute are awarded to the 
 successful party and included in the amount of the 
 judgment. They constitute the costs of the action. 
 
 Plaintiff is entitled to full costs as of right 
 when in a common law action he secures final judg- 
 ment in his favor for the sum of fifty dollars or over 
 (§ 3228). In an action for assault, battery, false 
 imprisonment, libel, slander, criminal conversation, 
 seduction or malicious prosecution, if plaintiff re- 
 covers less tha:n fifty dollars, or in replevin, if the 
 value of the chattels with the damages awarded is 
 less than fifty dollars, he is entitled to an amount of 
 costs equal only to the amount of the damages 
 awarded (§ 3228). 
 
 In other common law actions, if plaintiff recovers 
 less than fifty dollars, the defendant recovers costs 
 against the plaintiff (§ 3229). 
 
 The costs in actions of an equitable character are 
 in the discretion of the court (§ 3230). 
 
 The amount of costs which either party may tax 
 in a common law action for the usual proceedings in 
 an action up to judgment are : Plaintiff before notice 
 of trial, fifteen dollars, or twenty-five dollars, ac- 
 cording to the character of the action; defendant, 
 ten dollars beforenotice of trial; either party, fifteen 
 dollars after notice of trial and before trial; twenty 
 dollars for the trial of an issue of law, and thirty 
 dollars for trial of an issue of fact (§ 3251). Vari- 
 ous other sums are allowed for the taking of other 
 proceedings in the action. 
 
 The trial court may make additional allowances in 
 
PROCEDURE IN AN ACTION. 69 
 
 certain cases^ the most usual of which is an allow- 
 ance of five per cent, upon the sum recovered or 
 claimed, where the case is difficult or extraordinary 
 
 (§ 3253)- 
 
 A successful party may include in his bill of costs 
 certain necessary disbursements, past or prospective, 
 including fees of witnesses, referees, expenses of 
 taking depositions, disbursements for publication of 
 summons and notices, for procuring certified copies 
 of necessary papers, for printing papers when re- 
 quired by rule of court, for sheriff's fees upon one 
 execution, etc. (§ 3256). 
 
 Costs are taxed by the clerk upon or without no- 
 tice to the adverse party; if taxed without notice a 
 re-taxation must be immediately had upon notice 
 (§§ 3262-4). The provision allowing taxation of 
 costs without notice permits a party to immediately 
 enter his judgment without waiting for the two or 
 five days' notice of taxation to elapse (§ 3263). 
 
 The clerk's taxation may be reviewed by the court 
 upon motion for a new taxation ; the judge may re- 
 view the clerk's action upon any item in the bill of 
 costs to which objection was made before the clerk 
 (§3265). 
 
 VIII. Judgment and its Enforcement. 
 
 1. Entering judgment. 
 
 2. Lieu of a judgment. 
 
 3. Enforcement by execution. 
 
 4. Supplementary proceedings. 
 
 The entry of the judgment is usually the min- 
 isterial act of the clerk upon the application of the 
 
70 A HANDBOOK OF THE CODE. 
 
 successful party. This "entry" consists of the sign- 
 ing and filing of the judgment by the clerk (§ 1236). 
 All judgments are recorded by the clerk in the 
 "judgment book." 
 
 If the summons was personally served, and the 
 defendant has defaulted in answering, the clerk must 
 enter judgment on default on the plaintiff's applica- 
 tion in an action (a) on a breach of contract to pay, 
 absolutely or on contingency, a sum of money fixed by 
 the contract or capable of computation, or (b) on an 
 express or implied contract to pay money received or 
 disbursed, or the value of property received, or ser- 
 vices rendered to defendant or a third person for his 
 use (§§ 420, 1 2 12) ; but with the summons must be 
 served either a copy of the complaint or a notice stat- 
 ing that in case of default final judgment will be 
 taken for a specified amount (§ 419). The plaintiff, 
 on his application for such judgment, must file with 
 the clerk the summons, with proof by affidavit of its 
 service and of the defendant's default in appearing or 
 pleading, and a verified complaint, whereupon the 
 clerk enters judgment for the amount demanded in 
 the complaint ; or if the complaint is not verified, the 
 clerk must assess the amount due by examination of 
 the plaintiff or by other competent proof, and enter 
 judgment for such amount (§§ 1212-3). 
 
 In all other species of actions, and in all cases 
 where substituted service of the summons has been 
 had, judgment can be only entered upon application 
 to the court or a judge thereof. Plaintifif must file 
 the same proof as on an application to the clerk for 
 judgment (§ 12 14). For the purpose of enabling it 
 to render a judgment of proper amount, the court 
 
PROCEDURE IN AN ACTION. 7 I 
 
 may compute or assess the amount, with or without 
 a jury, or a reference may be directed, or an assess- 
 ment ordered before the sheriff's jury by means of a 
 writ of inquiry; except that where the action is 
 brought for an injury to person or property, the 
 damages must be ascertained by the last means 
 (§§ 1214-5). If the summons was served other than 
 personally, the plaintiff, or his agent or attorney, 
 must always testify as to any payments, and there 
 must in addition to the usual papers be also filed 
 proof by affidavit that a warrant of attachment has 
 been levied on property of the defendant, with a 
 description of the property attached (§ 12 17). 
 
 After a trial by jury, judgment must be entered 
 by the clerk upon application of a party in conform- 
 ity with such verdict (§ 1189). 
 
 After a trial by court or referee, judgment is en- 
 tered by the clerk in conformity with the directions 
 contained in the decision or report (§ 1228). In 
 matrimonial causes, however, the judgment is ren- 
 dered by the court (§ 1229). 
 
 When final judgment is entered, the clerk, with 
 the assistance of the attorney, makes up what is 
 called the "judgment roll" and which is destined 
 to be a permanent record of the issues tried and the 
 final determination thereon. It is composed of the 
 summons, pleadings, or copies thereof, the final 
 judgment, and any interlocutory judgment, and 
 each paper, or a copy thereof on file, which involves 
 the merits or affects the judgment; if the judgment 
 is entered by default, the written proof required 
 to be filed by plaintiff, and the result of any assess- 
 
72 A HANDBOOK OF THE CODE. 
 
 ment of damages must be contained in the judgment 
 roll; if entered after trial, the judgment roll must 
 contain the verdict, report or decision (§§ 1237-8). 
 
 A judgment dismissing a complaint does not bar 
 a subsequent action for the same cause unless the 
 judgment expressly declares, or it appears from the 
 judgment roll, that the dismissal was upon the mer- 
 its (§ 1209). 
 
 After a judgment has been entered it must be 
 "docketed," by which is meant that the details as 
 to parties, amount, time of entry, etc., must be copied 
 in the docket book (§ 1246). The clerk with whom 
 the judgment roll has been filed must supply 
 transcripts of the judgment on request, which 
 transcripts may be filed in the offices of county 
 clerks, and each clerk must forthwith docket, i.e., 
 make similar entries regarding the judgment in his 
 docket book (§ 1247). 
 
 2. The lien of a judgment upon the judgment- 
 debtor's real property within each county where it 
 has been docketed attaches immediately upon such 
 docketing, and continues for ten years without any 
 other affirmative act on the part of the judgment- 
 creditor (§ 1251 ). During such period of ten years 
 the judgment binds and is a charge upon such real 
 property. After the expiration of the ten years such 
 real property may be levied upon under an execution 
 as described in the next following subdivision 
 (§ 1253). 
 
 The lien of a judgment on the goods and chattels 
 of the judgment-debtor within the county not 
 exempt from levy attaches from the time of the de- 
 
PROCEDURE IN AN ACTION. 73 
 
 livery of an execution thereon to the sheriff to be 
 executed (§ 1405), but such a lien does not impair 
 the title to any part of such goods and chattels, prior 
 to an actual levy under the execution, acquired by a 
 purchaser in good faith and without notice that the 
 execution has been issued (§ 1409). 
 
 3. An execution to enforce a judgment may 
 be issued as of course where the judgment is (a) for 
 a sum of money only, (b) in favor of the plaintiff 
 in ejectment or dower, or (c) in favor of either party 
 and awards possession of a chattel (§ 1240). 
 
 If issued upon a judgment against an executor 
 or administrator, leave to issue it must first be 
 obtained from the surrogate (§§ 1825-6). 
 
 Where the judgment or a part of it cannot be 
 enforced by an execution, it may be enforced by 
 serving a certified copy on the party against whom 
 it is rendered, and if he refuses or neglects to pay 
 it, by punishing him for a contempt of court 
 (§ 1241). 
 
 An execution may be either (a) against property, 
 (b) against the person, (c) to deliver possession of 
 real property, or (d) to deliver possession of a 
 chattel (§ 1364). 
 
 The execution against property may be issued 
 to any county where the judgment is docketed 
 (§ 1365). It must describe the judgment upon 
 which it is issued, and direct the sheriff to return 
 it within sixty days to the clerk where the judgment 
 roll is fried (§ 1366). An execution against 
 property must require the sheriff to satisfy the 
 judgment out of the personal property of the 
 
74 A HANDBOOK OF THE CODE. 
 
 debtor within his county, applying first any personal 
 property seized under a warrant of attachment, and 
 if suiScient personal property cannot be found, then 
 out of the real property therein belonging to the 
 debtor at the time the judgment was docketed, 
 first applying thereto any real property that has 
 been likewise attached (§§ 1369-70). Such an 
 execution may be issued as of right at any time 
 within five years after entry of the judgment 
 (§ I375)> and if returned unsatisfied, further execu- 
 tions may be issued as of right thereon during the 
 life of the judgment (§ 1377); if no execution is 
 issued within the first five years, then leave of 
 court must first be obtained (§ 1377). 
 
 A householder is entitled to certain exemptions 
 from levy under execution, consisting mainly of spe- 
 cific household furniture and supplies for family use, 
 and in addition certain necessary household furni- 
 ture, professional instruments or library not ex- 
 ceeding in value two hundred and fifty dollars 
 (§§ 1390"! )• A lot of land not exceeding in value 
 one thousand dollars and occupied as a residence may 
 be made exempt from sale under execution (unless 
 the judgment was recovered for the purchase money 
 thereof), upon the designation of a householder 
 having a family, by so designating it in a con- 
 veyance recorded as a deed, or in a notice recorded 
 in the county clerk's office in a book styled the 
 "Homestead Exemption Book" (§§ 1397-8). 
 
 Personal property levied upon under execution 
 is taken into the sherifif's possession and is sold by 
 him at public auction (§ 1384). 
 
PROCEDURE IN AN ACTION. /S 
 
 Real property may be sold under execution after 
 six weeks' published notice of time and place of 
 sale, and after a similar notice has been posted in 
 three pubhc places for forty-two days (§ 1434). 
 Such notice must contain a description of the 
 property (§ 1435). The sheriff must, after a sale, 
 make duplicate certificates thereof specifying time 
 of sale, name of purchaser, a particular description 
 of the property sold, and the consideration money 
 paid (§ 1438). One of these certificates is filed for 
 record with the clerk of the county, and the other 
 delivered to the purchaser (§ 1439). 
 
 The judgment-debtor's title is not divested by 
 the sale, but continues until the expiration of the 
 redemption period and the execution of the 
 sheriff's deed, but the grantee of the sheriff under 
 such deed is deemed to have been vested with title 
 from the time of the sale (§ 1440). The person 
 entitled to its possession at the time of the execu- 
 tion sale continues entitled to the ordinary use and 
 occupation of the premises until the expiration of 
 the redemption perio(^(§ 1441), but may be re- 
 strained from committing waste (§§ 1442-3). 
 
 The judgment-debtor, or the one succeeding to 
 his title, may redeem the property from the sale 
 within one year thereafter, by paying to the 
 purchaser or the sheriff the amount paid upon the 
 sale with ten per cent, interest (§§ 1446-8). A 
 subsequent judgment-creditor or mortgagee may 
 redeem within three months thereafter (i.e., fifteen 
 months in all from the day of the sale) by paying 
 the purchase money with seven per cent, interest, 
 and other subsequent creditors or mortgagees may 
 
76 A HANDBOOK OF THE CODE. 
 
 redeem from each other in the order of their 
 priority (§§ 1449-70). After the different re- 
 demption periods have fully expired, the sheriff 
 gives a deed to the person entitled, which deed con- 
 veys to the grantee the title of the judgment-debtor 
 as sold by the sheriff (i.e., the interest which he had 
 in the property on the day, hour and minute the 
 judgment was docketed) (§§ 1471-4). 
 
 A judgment may be discharged by the execution 
 and filing of a satisfaction-piece, by the party, or, 
 within two years from entry of judgment, by his 
 attorney of record, or by the sheriff's indorsement 
 of payment upon the execution; the clerk must can- 
 cel and discharge the docket of the judgment upon 
 the filing of the satisfaction-piece, or the execution 
 containing the sheriff's indorsement (§§ 1260, 
 1264). 
 
 An execution against the person may usually 
 be issued only after the return unsatisfied of an 
 execution against the property issued to the county 
 where the debtor, if a resident, resides (§ 1489). 
 Such an execution may be issued in an action 
 where the plaintiff would have the right to an order 
 of arrest because of the nature of the action (§ 549); 
 or in any other case where an order of arrest has 
 been granted and executed and has not been 
 vacated (§§ 549-50, 1487)- 
 
 4. Supplementary proceedings are so called 
 
 because they supplement the ordinary proceedings 
 available at law to enforce collection of the judg- 
 ment; they constitute a method for the discovery 
 of the property of the judgment-debtor by an 
 
PROCEDURE IN AN ACTION. "J-J 
 
 examination of the judgment-debtor, or any person 
 indebted to him or having property belonging to 
 him, and for the appUcation of the discovered 
 property to the payment of the judgment, either 
 through the appointment of a receiver, or the order 
 of the court for its delivery to the sheriff 
 
 (§§ 2435-41)- 
 
 To entitle the judgment-creditor to an order for 
 the examination of the judgment-debtor or person 
 indebted to him, an execution upon the judgment 
 must have been issued : 
 
 1. Within ten years and returned wholly or 
 partly unsatisfied; 
 
 2. Out of a court of record; 
 
 3. After personal service of the summons, or the 
 judgment-debtor's appearance (or the substituted 
 service permitted against a resident) ; 
 
 4. Upon a judgment for not less than $25; 
 
 5. To the sheriff, in whose county at the time of 
 the commencement of the supplementary proceeding 
 the judgment-debtor had a place for the regular 
 transaction of business in person; 
 
 Or if he is a resident, to the sheriff of the county 
 where he resides ; 
 
 Or if he is not a resident, to the sheriff 
 of the county where the judgment-roll is filed 
 (§§ 2435, 2458). 
 
 If the judgment-creditor shows by affidavit that 
 the debtor has property which he refuses to apply 
 toward the satisfaction of the judgment, he is en- 
 titled to the order for his examination after the 
 issuance, and before the return, of the execution 
 (§ 2436). 
 
78 A HANDBOOK OF THE CODE. 
 
 The order for the examination may be granted 
 by a judge of the court rendering the judgment, or 
 by a county judge; on a municipal court judgment 
 in the Borough of Manhattan, the order is granted 
 by a judge of the City Court (§ 2434). 
 
 The judgment-debtor, or the person charged 
 with being his debtor or bailee, is directed by the 
 order to appear before the judge, or a referee, at the 
 time and place therein specified and submit to an ex- 
 •amination concerning his property (§§ 2444, 2459) ! 
 he may be enjoined from transferring or otherwise 
 disposing of any property of the judgment-debtor 
 until further direction (§ 2451). If property is dis- 
 covered, a receiver may be appointed, who becomes 
 vested by law with the title of the judgment-debtor 
 (§§ 2464-9), or the debtor may be ordered to de- 
 liver the property to the sheriff to be applied to the 
 payment of the judgment (§§ 2446-8). 
 
 Such proceedings cannot be had where the 
 judgment-debtor is a foreign or domestic cor- 
 poration (§ 2463). The judgment-creditor of a 
 domestic corporation, after return of execution un- 
 satisfied, may bring an action to procure a judg- 
 ment sequestrating its property and providing for 
 the distribution thereof (§ 1784). 
 
 The following property cannot be reached under 
 supplementary proceedings: (a) Property exempt 
 by law from levy and sale under execution; 
 (b) Trust property held for the benefit of the 
 judgment-debtor but proceeding from another per- 
 son; (c) His last sixty days' earnings, when neces- 
 sary for the support of his family (§ 2463). 
 
PROCEDURE IN AN ACTION. 79 
 
 IX. Appeals. 
 
 1. Appeals generally. 
 
 2. Appeals to Appellate Division. 
 
 3. Appeals to Court of Appeals. 
 
 4. Appeals to the Appellate Term, and the General 
 Term of the City Court. 
 
 I. Appeals cannot be taken except as provided 
 by statute. Any party, or any person thereafter 
 substituted as a party, who is aggrieved may 
 appeal, except where the judgment or order has 
 been rendered or made upon default (§§ 1249, 1297). 
 The appealing party is called the appellant and the 
 adverse party the respondent; after an appeal has 
 been perfected, the name of the appellate court 
 must be substituted for the court below, but other- 
 wise the title remains unchanged (§ 1295). 
 
 An appeal is usually taken by serving upon the 
 attorney for the adverse party and upon the clerk 
 with whom the judgment or order is entered (the 
 latter service being made by filing the notice in his 
 office) a written notice to the effect that the 
 appellant appeals from the judgment or order, or 
 from a specified part thereof (§ 1300); if appellant 
 desires, on appeal from a final judgment, to review 
 an interlocutory judgment, he must specify it in 
 the notice of appeal (§ 1301). 
 
 The time within which to appeal varies with 
 different courts, and the different species of de- 
 terminations appealed from. No judge or court 
 has the right to extend the time during which an 
 appeal may be taken, or allow it to be taken after 
 
80 A HANDBOOK OF THE CODE. 
 
 the expiration of the time fixed (§ 784). In order 
 to start the time running within which to appeal, 
 the attorney for the unsuccessful party must usually 
 be served with a copy of the determination of the 
 court with a notice of the time and place of its entry 
 (§§ I32S> 1351)- 
 
 The mere taking of an appeal does not .^^3; the 
 successful party from enforcing the judgment. If 
 the appeal is from a judgment for a sum of money, 
 the appellant may give a written undertaking to 
 the efTect that if the judgment is affirmed on appeal 
 he will pay it; if such an undertaking is given and 
 the sureties upon it are financially sufficient, all pro- 
 ceedings to enforce the judgment are stayed pending 
 the determination of the appeal (§§ 1310, 1327, 
 1341, 1352). 
 
 On appeals from other determinations of the 
 court, a stay of proceedings must generally be 
 obtained upon application to the court, which may 
 grant such a stay upon such terms as to security 
 or otherwise as justice requires (§ 1351). 
 
 An appeal is heard by an appellate court upon 
 a printed record of what transpired in the court 
 below. 
 
 On an appeal from an order, this record consists 
 of the order, notice of appeal, and the papers upon 
 which the order was founded (§ 13 15). 
 
 On an appeal from a final judgment, this record 
 consists of a copy of the judgment roll, the notice 
 of appeal, and what is called a "case" prepared by 
 the appellant (§ 1315): this case consists of the 
 
PROCEDURE IN AN ACTION. 8 I 
 
 evidence taken at the trial (or so much thereof as 
 is material to the review of the questions to be 
 urged by the appellant), together with the sub- 
 stance of the documentary evidence introduced or 
 offered, and the exceptions taken by the appellant; 
 the case must be settled, i.e.j passed on and approved 
 as to its contents, and signed, by the judge before 
 whom the action was tried (§ 997). 
 
 The clerk of the court below must certify to the 
 appellate court the correctness of the printed record, 
 but the attorneys for the parties may stipulate as to 
 the correctness of the record and thus dispense with 
 the certification (§§ 1315, 3301). 
 
 A party obtains the right to review on appeal a 
 ruling of the trial court by taking an "exception" 
 to the ruling. An exception taken during the trial 
 of the action is usually entered in the judge's min- 
 utes ( § 995 ) . The stenographer is required by law 
 to note each exception (§ 83), and his notes may be 
 treated as the minutes of the judge (§ 1007). 
 
 An exception to the judge's charge to the jury 
 may be taken at any time before the jury has ren- 
 dered its verdict (§ 995). An exception is not 
 taken to the judge's denial of the motion for a 
 new trial (usually made immediately upon the 
 coming in of the verdict), but an order is signed 
 by the judge as though it were (as it actually is) 
 a separate motion in the action (§ 999). 
 
 Exceptions to the rulings (in the written 
 decision) of a court without a jury, or a referee, 
 made after the trial is closed and the matter sub- 
 mitted for decision, are taken by filing written 
 notice thereof in the clerk's office, and serving a 
 
82 A HANDBOOK OF THE CODE. 
 
 copy on the attorney for the adverse party; such 
 ■exceptions may be taken at any time within ten 
 days after the attorney for the exceptant has been 
 served with a copy of the decision of the court or 
 referee, with notice of the entry of judgment there- 
 upon (§ 994). 
 
 It is discretionary with the judge presiding at a 
 jury trial to direct that the exceptions taken during 
 the course of the trial be reviewed by the Appellate 
 Division in the first instance, and that meanwhile 
 judgment be suspended (§ looo). 
 
 An appeal to the Appellate Division from a final 
 judgment entered upon the decision of the court 
 or referee , brings up for review all questions 
 of law raised by the exceptions taken orally during 
 the trial, and all questions of law and fact 
 raised by the written exceptions filed with the clerk 
 after the decision (§ 1346). Such an appeal, how- 
 ever, from a judgment entered on the verdict 
 of a jury raises only the questions of law upon the 
 exceptions taken orally during the course of the trial 
 and to the judge's charge to the jury (§ 1346) ; in 
 order to raise before the appellate court any question 
 upon the facts, i.e., whether the verdict is against 
 the weight of evidence, excessive or insufficient, 
 the notice of appeal must also include an appeal 
 from an order previously made denying the 
 motion for a new trial upon the judge's minutes 
 (§§ 999, 1347)- 
 
 2. Appeals to the Appellate Division may be 
 
 taken from any Supreme Court final or interlocu- 
 tory judgment, and from about all species of 
 
PROCEDURE IN AN ACTION. 83 
 
 orders that may be made in an action or special 
 proceeding, whether made by a court, or judge 
 out of court (§§ 1346-9). 
 
 Such an appeal must be taken within thirty days 
 after service upon the attorney for the appellant of 
 a copy of the judgment or order with written notice 
 of its entry (§ 1351). 
 
 After the Appellate Division has reached its 
 conclusion upon the appeal, its determination 
 takes the form of an order of the court, upon which 
 the clerk enters a judgment in conformity there- 
 with; the judgment-roll consists of the judgment 
 and order, annexed to the papers upon which the 
 appeal was heard (§ 1354). 
 
 Appeals from judgments and orders of other 
 courts of record may be taken to the Appellate 
 Division in the department embracing the county 
 where the lower court is held; except that such 
 appeals from determinations of the City Court of 
 the City of New York lie through its General Term 
 to such Supreme Court justice or justices as may be 
 designated for that purpose by the Appellate Division 
 of the First Department, and similar provision is 
 made for appeals from inferior courts held in the 
 City of Buffalo (§§ 1340-5). 
 
 3. Appeals to the Court of Appeals may be 
 
 taken (§§ 190-1) : 
 
 1. From a judgment entered upon a decision of 
 the Appellate Division and finally determining an 
 action ; except that no appeal lies from a judgment of 
 affirmance in an action to recover damages for a 
 personal injury, or for injuries resulting in death, or 
 
84 A HANDBOOK OF THE CODE. 
 
 a judgment-creditor's action to set aside a fraudulent 
 transfer, or in an action to recover for services ren- 
 dered, or for wrongful discharge, or upon an indi- 
 vidual bond or undertaking on appeal, when the de- 
 cision of the Appellate Division is unanimous, unless 
 such Appellate Division shall certify that, in its opin- 
 ion, a question of law is involved which ought to be 
 reviewed by the Court of Appeals, or if it refuses to 
 so certify, an appeal is allowed by a judge of the 
 Court of Appeals ; 
 
 2. From an order finally determining a special 
 proceeding; 
 
 3. From an order granting a new trial on 
 exceptions, where the appellant stipulates that 
 upon affirmance by the Court of Appeals, judgment 
 absolute shall be rendered against him ; 
 
 4. From other determinations of the Appellate Di- 
 vision, where the Appellate Division allows the 
 appeal and certifies that, in its opinion, a question 
 of law is involved which ought to be reviewed by the 
 Court of Appeals, in which case the question or 
 questions so certified are alone reviewed. 
 
 The jurisdiction of the court is limited to a 
 review of questions of law (Const., Art. VI, § 9; 
 Code, § 191). No unanimous decision of the 
 Appellate Division that there is evidence support- 
 ing or tending to support a finding of fact by a 
 court without a jury or a referee, or a verdict of a 
 jury not directed by the court, shall be reviewed 
 by the Court of Appeals (id.). 
 
 The right to appeal to the Court of Appeals 
 shall not be made to depend upon the amount 
 involved (Const., Art. VI, § 9). 
 
PROCEDURE IN AN ACTION. 8$ 
 
 The order of the Court of Appeals upon 
 the determination of the appeal is called the 
 "remittitur." It is annexed to the papers upon 
 which the appeal was heard, and the action is 
 "remitted" to the court below where the judgment 
 of the Court of Appeals is to be enforced accord- 
 ing to law (§ 194). 
 
 The record before the Court of Appeals is usually 
 the same as before the Appellate Division, with 
 the opinion rendered by the Appellate Division 
 on the appeal, and its order, and the judgment 
 entered thereon, with the notice of appeal to the 
 Court of Appeals (§§ 1315, 1339). 
 
 An appeal from an order must be taken within 
 sixty days after service upon the attorney for the 
 appellant of a copy of the order with written notice 
 of its entry; from a final judgment, within one year 
 after its entry upon the determination of the 
 Appellate Division and the judgment-roll filed 
 (§ 1325)- 
 
 4. Appeals may be taken in specified cases to the 
 Appellate Term of the Supreme Court. This is the 
 name given to the terms held by the justices of the 
 Supreme Court designated by the Appellate Divi- 
 sion for the First Department to hear appeals from 
 the City Court and municipal courts (§§ 1344-5, 
 3191). The Appellate Term has jurisdiction to re- 
 view final judgments of the General Term of the 
 City Court, orders granting new trials, where the ap- 
 pellants stipulate that in case of affirmance, judgment 
 absolute may be rendered against them and other 
 orders afifecting substantial rights (§ 3191). Such 
 
86 A HANDBOOK OF THE CODE. 
 
 appeals must be taken within twenty days after ser- 
 vice of a copy of the judgment or order with written 
 notice of its entry (§ 3193). The Appellate Term 
 also has general appellate jurisdiction over judg- 
 ments of the municipal court of the City of New 
 York sitting in the Borough of Manhattan (Char- 
 ter, Sec. 1367). 
 
 The General Term of the City Court has similar 
 appellate jurisdiction over judgments and orders of 
 its Trial and Special Terms as is possessed by the 
 Appellate Division over the Supreme Court 
 (§§ 3188-9). An appeal may be taken to the Gen- 
 eral Term of the City Court from a final judgment 
 within thirty days after service upon the attorney 
 for the appellant of a copy of the judgment and 
 written notice of its entry, and from an order within 
 ten days after like service of a copy thereof with like 
 notice (§ 3190). 
 
CHAPTER VII. 
 PROCEDURE IN COURTS NOT OF RECORD. 
 
 These courts are mainly organized for the trial of 
 actions involving limited amounts, and certain pro- 
 visions awarding to defendant a recovery of costs in 
 actions brought in courts of record, where the 
 amount awarded is less than fifty dollars, require 
 that lesser controversies be confined to these courts. 
 The courts not of record consist of courts of justices 
 of the peace throughout the State, the municipal 
 courts of the City of New York, and certain others 
 enumerated in Section 3 of the Code. 
 
 So far as the procedure in these courts substan- 
 tially follows the procedure in a court of record as 
 considered in the last chapter, it will not be repeated ; 
 reference will only be made to those particulars in 
 which the procedure is peculiar. 
 
 The summons is issued by the justice, or, if he has 
 a clerk, may be issued by the clerk. The municipal 
 courts have clerks and also seals (Charter, §§ 1371- 
 2). Personal service of the summons only can be 
 had in these courts (§ 2948) . Issue is joined on the 
 return day of the summons (§ 2934). 
 
 The pleadings may be oral or written; if oral, 
 their substance must be taken down by the justice 
 and a written bill of particulars of any demand may 
 be ordered given (§§ 2940-2) . The plaintiff may, if 
 he desires, make a written complaint in an action on 
 
88 A HANDBOOK OF THE CODE. 
 
 contract, and verify it as in an action in the Supreme 
 Court ; the answer in such case must be verified ; in 
 default of an answer, judgment must be entered for 
 the amount demanded without further proof 
 (L. 1889, C. 472). 
 
 When sued for breach of contract, defendant must 
 interpose any counterclaim he has for a like cause 
 which might be allowed him on the trial, and if he 
 neglects to interpose it he cannot thereafter sue upon 
 it (§§ 2947-8). 
 
 If from plaintiff's case it appears that the title to 
 real property is called in question, the justice must 
 dismiss the action (§ 2956). If a defendant, in his 
 answer, shows that the title to real property will 
 come in question, he may give an undertaking to ap- 
 pear in a court of record at suit of the plaintiff, and 
 the justice must discontinue the action (§§ 2951-4). 
 
 The subpoena of the justice runs throughout the 
 county where his court is located ; a witness may be 
 required by subpoena to attend and be examined be- 
 fore a justice in an adjoining county (§ 2969). The 
 testimony of witnesses that are not within the county 
 or an adjoining county may be taken by commission 
 (§2980). 
 
 A jury trial must be demanded at the time of the . 
 joining of issue, or otherwise is waived (§ 2990). 
 A jury usually consists of six men, though a lesser 
 number may be accepted by the parties (§ 2995). 
 
 Judgment must be entered by the justice in con- 
 formity with the verdict of the jury (§ 3014). 
 When no jury is present, the justice tries the issue 
 and renders judgment according to law and equity, 
 as the very right of the case appears (§§ 2988-9). 
 
PROCEDURE IN AN ACTION. 89 
 
 The justice must, upon application, deliver to the 
 successful party a transcript of the judgment; this 
 transcript may be docketed in the office of the clerk 
 of the county, and is thenceforth deemed a judgment 
 of the county court of that county (or the Supreme 
 Court of New York County), and may be enforced 
 accordingly, except that an execution thereon must 
 be issued by the county clerk (§ 3017). Transcripts 
 may be secured from the county clerk and filed in 
 the office of any other county clerk (§ 3022). 
 
 An execution upon the judgment may be issued 
 by the justice to a constable, provided that it has not 
 been docketed in the county clerk's office, in v^^hich 
 event an execution issues to the sheriff only 
 (§ 3024) ; such an execution substantially follows 
 the form of an execution to the sheriff (§§ 3025-6). 
 
 Appeals lie from the justice's court to the county 
 court of the county where the judgment was ren- 
 dered (§ 3045). Appeals from the municipal court 
 of the City of New York lie to the Appellate Term 
 of the Supreme Court ( § 1340) . An appeal must be 
 taken within twenty days after the entry of the 
 judgment in the justice's court (§ 3406). The ap- 
 peal is taken by serving the notice of appeal on the 
 justice and upon the respondent; costs included in 
 the judgment must be paid to the justice at the time 
 of the taking of the appeal (§§ 3046-7). An under- 
 taking may be given to stay enforcement of the 
 judgment (§ 3050). The justice makes a return to 
 the appellate court, which return contains all the 
 proceedings before him, including the evidence and 
 the judgment rendered (§ 3053). 
 
CHAPTER VIII. 
 SPECIAL PROCEEDINGS. 
 
 They are defined as including all civil prosecu- 
 tions, except actions, brought for the enforcement or 
 protection of a right, or redress or prevention of a 
 wrong (§ 3334). All proceedings in surrogates' 
 courts, by State -writ, and the various proceedings 
 embraced within Chapter XVII of the Code, and 
 hereafter considered, are special proceedings. 
 
 The Statute of Limitations applies equally to 
 rights sought to be enforced by actions or by special 
 proceedings (§§414-5). 
 
 A special proceeding is usually commenced by the 
 presentation to a judge, or court, of a verified peti- 
 tion setting forth the grounds upon which the appli- 
 cation is made, and any supporting affidavits which 
 the petitioner wishes to submit, upon which an order 
 to show cause is secured directed to the adverse 
 party, and requiring him at a time and place specified 
 to show cause why the relief prayed should not be 
 awarded. The applicant is generally called the peti- 
 tioner and the adverse party the defendant, or re- 
 spondent. In a surrogate's court a notice called a 
 citation is issued instead of an order to show cause 
 (§ 2516). In some cases the proceeding may be 
 commenced by serving a copy of the petition upon 
 the respondent with notice that application for the 
 relief sought will be made at a time and place speci- 
 
PROCEDURE IN AN ACTION. 9I 
 
 fied (§ 2070). Such citation, order or notice where- 
 by a special proceeding is instituted must be person- 
 ally served as a summons in an action (§ 433) unless 
 other service is permitted by law. 
 
 The reply of the adverse party to the statements 
 in the petition and affidavits is submitted in a return, 
 or by way of answering affidavits. The court has the 
 power to send any disputed question of fact to a 
 referee to take testimony and report for the court's 
 advisement (§ 1015). In some cases issues of fact 
 raised by the return or answering affidavits may be 
 submitted to the decision of a jury (§§ 2083, 2168, 
 2247, 2328). The proceeding terminates in a final 
 order, which is appealable and has the force of a final 
 judgment (§§ 190, 1356). 
 
CHAPTER IX. 
 
 SURROGATES' COURTS. 
 
 L Proceedings generally therein. 
 
 II. Probate of will. 
 
 III. Administrators. 
 
 IV. Administration and distribution of estate, and 
 
 accounting therefor. 
 V. Sale of decedent's realty to pay debts. 
 VI. General Guardian. 
 
 I. Proceedings Generally. 
 
 The surrogates' courts deal exclusively with the 
 administration of decedents' estates and the care of 
 the person and property of infants (§ 2472). There 
 is a surrogate of each county in the State; in some 
 counties of limited population the county judge is 
 also the surrogate (Const., Art. VIII, Sec. 15). 
 Two surrogates sit in New York County, and the 
 court is there divided into trial terms, where all con- 
 tested probate proceedings are heard, and a term 
 called chambers, where are heard all other matters 
 (§ 2504). The surrogate's court is a court of record 
 (§ 2), and has a seal (§ 2507). 
 
 The summons in the surrogate's court is called the 
 citation, and proceedings therein must usually be 
 commenced by the issuance of the citation upon pres- 
 
SURROGATES COURTS. 93 
 
 entation of a petition (§ 2516). The presentation 
 of the petition is deemed the commencement of the 
 proceeding within the Statute of Limitations, but 
 the citation issued thereon must be personally served 
 within sixty days thereafter, or the first publication 
 begun (§ 25I7). The citation is made returnable 
 before the surrogate (§ 2515) on a day certain, and 
 specifies the estate or subject-matter in question; it 
 also contains the names of all the persons to be cited, 
 but if their names are unknown and cannot be ascer- 
 tained, they may be designated by showing their con- 
 nection with the decedent, or their interest in the 
 property or matter in question (§§ 2518-9). 
 
 The service of a citation differs somewhat from 
 the service of a summons : The citation may be 
 served either by delivering a copy to a person 
 cited, or by leaving a copy at his residence, or 
 place of sojourn, with a person of suitable age and 
 discretion, under such circumstances that the sur- 
 rogate has good reason to believe that the copy 
 came to his knowledge in time for him to attend 
 on the return day (§ 255b). This is personal 
 service of the citation. A citation so served must 
 be served in the county, or an adjoining county, 
 at least eight days, and in any other county at least 
 fifteen days, before its return day ; it may be served 
 by any person, although he is a party to the pro- 
 ceeding (§ 2520). Service may be made in any 
 county in the state (§ 2515). Substituted service of 
 the citation may be had in much the same way as sub- 
 stituted service of the summons in an action as 
 previously described in Chapter VI. (§§ 2521-5). A 
 
94 A HANDBOOK OF THE CODE. 
 
 personal service upon an infant under fourteen years, 
 or upon an incompetent, or a corporation, is to be 
 made in the manner provided for personal service of 
 the summons in such case (§§ 2526—7). 
 
 A party may appear in person, or by attorney, and 
 his general appearance is equivalent to the personal 
 service of the citation upon him ( § 25^) . An adult 
 party may waive the issue and service of a citation 
 by a written waiver, acknowledged and proved as a 
 deed (§ 2528). Proof of service of the citation is 
 made by affidavit or by an admission acknowledged 
 or proved (§§ 434, 253-2). 
 
 The surrogate appoints a special guardian to pro- 
 tect the interests of an infant party to a proceeding, 
 who has no general guardian, or whose general 
 guardian does not appear, or whose interests are ad- 
 verse to the infant; a like special guardian is ap- 
 pointed in like manner for an incompetent party 
 whose committee does not appear or is adversely in- 
 terested (§ 2530). The citation usually contains a 
 direction to any infant party to appear by his gen- 
 eral guardian, or to apply on the return day for the 
 appointment of a special guardian, and notifies him 
 that in case of his default the surrogate will appoint 
 a special guardian for him (§ 2531). 
 
 The surrogate may require the claims of the 
 parties to be presented in writing and verified as a 
 pleading (§§ 2533-4). Such a requirement exists 
 very generally in surrogates' courts. 
 
 Oral testimony may be taken before the surrogate, 
 and must be authenticated and preserved in perma- 
 
SURROGATES COURTS. 95 
 
 nent form (§§ 2541-3). An exception to a ruling 
 of the surrogate, or to a finding of fact or a refusal 
 to find, is taken in the same manner as before a court 
 without a jury — i.e., an exception to a ruling made 
 during the course of the trial is taken by an entry of 
 the fact of an exception being taken in the minutes, 
 and an exception to a finding in a surrogate's de- 
 cision, or to a refusal to find on request, is taken by 
 filing a notice of exception (§§ 994, 2545). The 
 preparation and settlement of the record for an ap- 
 pellate court follow the Supreme Court procedure; 
 see Chapter VI, under subdivision "Appeals." 
 
 References may be ordered by the surrogate in 
 any proceedings except to probate a will ; these ref- 
 erences may be to take evidence and report upon 
 specific questions of fact, or to examine an account 
 and hear and determine all questions arising upon its 
 settlement, subject, however, to confirmation or mod- 
 ification by the surrogate (§ 2546). A referee's re- 
 port is deemed confirmed after a lapse of ninety days 
 from the time it is submitted to the surrogate for his 
 action, if meantime he has not confirmed, modified 
 or rejected it (§ 2546). 
 
 The final determination of the surrogate upon the 
 rights of the parties in any proceeding is styled 
 either a final order or a decree (§ 2550). Tran- 
 scripts may be procured of a decree or final order di- 
 recting the payment of money, as though the decree 
 were a judgment, and such transcript, when filed 
 and docketed in a county clerk's office, has the same 
 force and effect as a judgment (§ 2553). Execu- 
 tion upon it is issued to the sheriff from the surro- 
 gate's court, and is made returnable to that court 
 
96 A HANDBOOK OF THE CODE. 
 
 (§2554). A surrogate's decree may be enforced by 
 punishment for contempt, when it cannot be en- 
 forced by execution, or where an execution has been 
 issued and returned unsatisfied, or where the dehn- 
 quent is an executor, administrator, guardian or tes- 
 tamentary trustee, and the decree relates to the fund 
 or estate in his charge (§2555). 
 
 Costs are generally in the discretion of the surro- 
 gate, and may be awarded to any party, and may be 
 charged against a party personally or may be made 
 payable out of the estate (§§ 2557-9). They in- 
 clude all disbursements which may be taxed in the 
 Supreme Court. A surrogate may allow to any 
 party in an tincontested proceeding twenty-five dol- 
 lars, and where there has been a contest, seventy dol- 
 lars, and ten dollars per day occupied upon the trial 
 less two (§ 2561). A special guardian's compensa- 
 tion cannot exceed this amount. 
 
 An appeal from a surrogate's decree or order lies 
 to the Appellate Division (§ 2570), and must be 
 taken within thirty days after service upon the ap- 
 pellant, or his attorney, of a copy of the decree or 
 order, with written notice of its entry (§ 2572). All 
 parties to the proceeding, and each person having- 
 or claiming to have an interest or right which is 
 directly affected thereby, must be made a party to 
 the appeal ( § 2573) . An appeal may be taken upon 
 questions of law, or upon the facts, or both ; if it is 
 taken from a decree made upon a trial of an issue of 
 fact, the surrogate must settle a "case," upon which 
 the appeal is heard in the manner prescribed for the 
 making and settling of a case upon an appeal from 
 
SURROGATES COURTS. 97 
 
 a judgment (§ 2576). Security to stay the enforce- 
 ment of a decree for the payment of money must be 
 given as though the appeal were from a judgment of 
 a similar character (§§ 2578-84). Upon the decision 
 of an appeal by the Appellate Division, a certified 
 copy of its order, annexed to the papers upon which 
 the appeal has been heard, is transmitted to the sur- 
 rogate's court, and the surrogate must enter the de- 
 cree or order necessary to carry the determination 
 into effect (§ 2585). 
 
 The surrogate issues to persons appointed as ex- 
 ecutors, administrators and guardians what are 
 termed respectively "letters testamentary," "letters 
 of administration" and "letters of guardianship." 
 They are conclusive evidence o£ authority (§ 2591). 
 Such letters may be revoked by the surrogate for 
 subsequent misconduct, established in a proceeding 
 brought. to revoke such letters (§§ 2085-93). 
 
 II. Probate of Will. 
 
 A will of real property may be probated only when 
 executed as provided by the laws of this State; a 
 will of personal property may be probated (a) when 
 executed according to the laws of this State; (b) 
 when executed within the United States, Canada, or 
 the Kingdom of Great Britain and Ireland, as pre- 
 scribed by the laws of the state or country where it 
 was executed; and (c) when executed by a non- 
 resident according to the laws of the testator's resi- 
 dence ; and the subsequent change of a testator's resi- 
 dence does not affect either the right to have a will 
 probated or its construction (§ 261 1). 
 
gS A HANDBOOK OF THE CODE. 
 
 A will may be "propounded" — i.e., offered for 
 probate — by a person named in it as executor or 
 beneficiary, or any other person interested in the 
 estate, including a creditor or any person interested 
 in an action wherein the testator would be a proper 
 party (§ 2614); a verified petition must be pre- 
 sented to the surrogate stating the jurisdictional 
 facts, including the decedent's residence or property 
 interests (§§ 2476-7, 26^15). 
 
 Those persons who will succeed to the dece- 
 dent's property, if probate of the will is denied, must 
 be cited to attend the probate, viz. : 
 
 1. The husband or wife, and all the heirs at law 
 of the testator, if the will relates exclusively to 
 realty ; 
 
 2. The husband or wife^ and all the next of kin 
 of the testator, if the will relates exclusively to per- 
 sonalty ; 
 
 3. All those persons, if the will relates to both 
 real and personal property ( § 261 5 ) . 
 
 The citation must set forth the names of the peti- 
 tioners for probate and the decedent, and state 
 whether the will relates to real or personal property, 
 or both ; any beneficiary named in the will, and any 
 person named as a beneficiary in any other paper 
 purporting to be the decedent's will, may appear, but 
 if objections to the probate are interposed, all the 
 persons named as beneficiaries must be given notice 
 of the contest (§§ 2616-7). 
 
 The surrogate must take written proof of the due 
 execution of the will, and any contestant may re- 
 quire the examination of all subscribing witnesses 
 
SURROGATES COURTS. 99 
 
 and any witness whose testimony the surrogate is 
 satisfied may be material (§ 2618). A will may be 
 admitted to probate upon proof of the handwriting 
 of the testator and of the subscribing witnesses, and 
 of such other circumstances as would be sufficient to 
 prove the will upon the trial of an action, if the sub- 
 scribing witnesses are all dead, or absent, or have 
 forgotten the occurrence, or even testified against 
 the execution (§ 2620). The surrogate must be sat- 
 isfied of the genuineness of the will and sufficiency 
 of its execution (§§ 2622-3)', and must pass on the 
 construction of any provision relating to personal 
 property, when put in issue (§ 2624). 
 
 A lost or destroyed zmll may be admitted to pro- 
 bate, but only in case the will was in existence at 
 the time of the testator's death, and its provisions 
 are clearly and distinctly proven by at least two 
 credible witnesses (a correct copy or draft being 
 equivalent to one witness) ; an action may also be 
 brought in the Supreme Court for such purpose 
 (§§ 1865, 262'T'). 
 
 Upon an appeal from a decree admitting a will to 
 probate, the Appellate Division, if it reverses or 
 modifies the decree on a question of fact, must direct 
 the trial of the issue of fact before a jury in the 
 Supreme Court (§ 2588). 
 
 The effect of the probate of a will is peculiar : As 
 to personal property its probate is conclusive as to all 
 persons cited, unless a proceeding for the revocation 
 of the probate is commenced within a year (§ 2647), 
 and except that in a subsequent action brought in 
 the Supreme Court upon the issue of its due execu- 
 
lOO A HANDBOOK OF THE CODE. 
 
 tion, its probate is only presumptive evidence of the 
 facts necessary to entitle it to be given effect as a 
 will (§§ 2626, 2653a). As a will of real property, 
 it is only presumptive evidence of its execution and 
 validity (§ 2627). A certificate of the surrogate 
 stating that the will has, upon due proof, been ad- 
 mitted to probate is admissible in evidence in a sub- 
 sequent action brought for the purpose of deciding 
 the validity of the will, and gives rise to these pre- 
 sumptions (§ 2629). 
 
 Letters testamentary are issued immediatel}^ after 
 the probate of the will, to the persons named therein 
 as executors (§ 2636), unless objections to the com- 
 petency of any person are filed by an interested 
 party, in which case the surrogate must first inquire 
 into the objections. No person named in the will as 
 executor may be appointed, if he is an infant, an in- 
 competent, an alien non-resident, a criminal, or a per- 
 son found by the surrogate to be unfit (§2612). If a 
 sole executor or all of the executors be deceased, or 
 incompetent, the surrogate must appoint an adminis- 
 trator with the will annexed, who must observe and 
 perform the will, and who has the rights and powers 
 of an executor (§ 2613). Prior to his appointment 
 as such, a person named in the will as executor may 
 pay funeral charges and preserve the estate 
 (§ 2613). An executor is not usually required to 
 give a bond; where an objection to his competency 
 has been established to the satisfaction of the surro- 
 gate, based on his irresponsibility, or non-residence, 
 the person may nevertheless secure his appointment 
 by giving a bond (§ 2638). A person named as an 
 executor may renounce the appointment by a prop- 
 
SURROGATES COURTS. lOI 
 
 erly executed instrument (§ 2639). A person 
 named as executor should qualify within thirty 
 days after probate, or may, after notification, be 
 assumed by the surrogate to have renounced upon 
 failure to qualify within a specified further time 
 (§ 2642). An executor qualifies by taking a writ- 
 ten oath before a person authorized to take an affi- 
 davit, which oath is filed with the surrogate, and 
 provides that the executor will well, faithfully and 
 honestly discharge the duties of his office (§ 2594). 
 If two or more executors disagree regarding 
 the custody of the estate funds, the surrogate will, 
 upon application, give directions regarding them 
 (§ 2602). 
 
 If no executors are appointed, letters of adiiiin- 
 istration with the will annexed may issue in the fol- 
 lowing priority : 
 
 1. To one or more residuary legatees; 
 
 2. To one or more of the principal or specific 
 legatees ; 
 
 3. To husband or wife, or to one of the next of 
 kin or heirs at law ; 
 
 4. To a creditor, or, in New York and Kings 
 Counties, to the public administrator (§ 2643). 
 
 A will of personal property once probated may be 
 again attacked and its probate confirmed or revoked 
 in a proceeding commenced by any person interested, 
 within a year from the recording of the decree 
 admitting it to probate (§§ 2647-8). The petition 
 must contain allegations against the validity of the 
 will or the competency of the proof received when 
 it was probated. Such a proceeding practically re- 
 opens the whole question, and the conclusive char- 
 
I02 A HANDBOOK OF THE CODE. 
 
 acter of the first adjudication of probate is thus sus- 
 pended in the surrogate's court for a year from its 
 rendition (§ 2626) and in the Supreme Court for 
 two years (§ 2653a). There must be cited upon 
 this proceeding, the executor, all of the devisees and 
 legatees, and all other parties to the first proceeding 
 (§ 2649). Upon being served with a citation, the 
 executor must suspend all proceedings relative to 
 the administration of the estate except the collection 
 and payment of debts and the recovery and preserva- 
 tion of the estate property (§ 2650). 
 
 Any will which has been probated by the surro- 
 gate may be again attacked and its probate con- 
 firmed or overturned in an action brought in the 
 Supreme Court in the county of its probate 
 (§ 2653a). Any person interested in sustaining or 
 overturning the will may bring the action; the ex- 
 ecutor and all parties interested under or against the 
 will must be made parties; a certified copy of the 
 will, with all testimony taken and the decree of pro- 
 bate, is transmitted by the surrogate to the county 
 clerk, and the testimony taken before the surrogate 
 of witnesses who are now dead, incompetent or ab- 
 sent is admissible ; the trial is had before a jury, and 
 its verdict is conclusive as to real and personal prop- 
 erty ; the party sustaining the will offers the will in 
 evidence and rests his case, whereupon the other 
 parties present their evidence against the will, the 
 party sustaining the will then offers his evidence, 
 and rebutting evidence may be thereafter received 
 as in other cases; the judgment entered on a verdict 
 sustaining the will contains a provision enjoining all 
 parties to the action and their successors in interest 
 
surrogates' courts. 103 
 
 from thereafter questioning the validity of the will. 
 Such an action must be brought within two years 
 from the probate of the will by the surrogate unless 
 disability of infancy, incompetency or absence from 
 the State exists, in which case it may be brought 
 within two years after the disability has been re- 
 moved (§ 2653a). 
 
 III. Administrators. 
 
 If a person dies intestate, i.e., leaves no will, 
 letters of administration upon his personal estate 
 may be granted by the surrogate of the county 
 where he was a resident at the time of his 
 death ; or, if a non-resident dies intestate within the 
 county leaving personal property in the State, or dies 
 without the State leaving personal property within 
 the county (§§ 2472, 2476). An administrator has 
 nothing to do with the decedent's real property, ex- 
 cept where in some cases he may bring a proceeding 
 to sell it to pay his debts ; see Subdivision V, post. 
 
 In granting letters of administration the surrogate 
 gives preference in the following manner : ( i ) To 
 surviving husband or wife; (2) to children; (3) to 
 parents; (4) to brothers; (5) to sisters; (6) to 
 grandchildren; (7) to other next of kin entitled to 
 share in distribution, etc. ; males are preferred to fe- 
 males of the same degree ; if no relative will accept 
 the appointment, a creditor may be appointed, ex- 
 cept in the City of New York the public administra- 
 tor has preference over a creditor (§ 2660). 
 
 If the husband does not take out letters of admin- 
 istration on the estate of his deceased wife, he is 
 
104 A HANDBOOK OF THE CODE. 
 
 presumed to have received therefrom assets suffi- 
 cient to satisfy her debts and is liable therefor; but 
 as her duly appointed administrator, he is liable only 
 to the extent of the assets received from her estate 
 (§2660). 
 
 No person may be appointed an administrator 
 who is an infant, an incompetent, a non-resident 
 alien, or who is adjudged unfit by the surrogate 
 (§ 2661). A person may renounce his right to ap- 
 pointment by means of a properly executed instru- 
 ment filed with the surrogate (§ 2663). 
 
 The person seeking appointment as administrator 
 presents a verified petition therefor to the surrogate ; 
 all persons shown by the petition to be residents of 
 the State and of prior or equal right, who have not 
 renounced, must be cited; if the petition shows no 
 such persons, letters may at once be issued to the 
 petitioner without citation (§ 2663). A person ap- 
 pointed administrator must file his oath to well, 
 faithfully and honestly perform his duties (§ 2594), 
 and must execute and file with the surrogate the 
 bond of himself and two sureties in at least double 
 the amount of the personal property conditioned for 
 the faithful performance by him of his trust 
 (§ 2664). 
 
 A person may be appointed temporary adminis- 
 trator where for any reason there is a necessary de- 
 lay in the granting of letters testamentary or of ad- 
 ministration, or in the probate of a will, or where a 
 person has disappeared and is presumed to be dead 
 and his property needs protection (§ 2670). Such 
 a temporary administrator has authority to collect 
 and preserve the decedent's or absentee's property, 
 
SURROGATES COURTS. lOJ 
 
 and under the special direction of the surrogate to 
 advertise for claims and to pay debts after the lapse 
 of specified periods, to provide for the family of the 
 absentee supposed to be dead, etc. (§§ 2673-83). 
 
 What are called "ancillary letters testamentary" 
 may be granted upon a will of personal property of a 
 non-resident testator, which has been properly pro- 
 bated in the country or state of his residence 
 (§ 2695). The surrogate must appoint any com- 
 petent person named in the will for such purpose 
 (§ 2697), and must prior thereto ascertain and cite 
 the resident creditors, must ascertain the amount of 
 their claims, and require proper security to be given 
 in an amount equal at least to twice the amount of 
 the ascertained claims. Such an ancillary executor 
 may be directed to pay the claims of residents out of 
 any property collected by him, and transmit the bal- 
 ance to the place where the principal letters were 
 granted (§§ 2700-1). 
 
 IV. Administration, Distribution and 
 Accounting. 
 
 An executor or administrator may compel a dis- 
 covery by any person, relative to his possession or 
 concealment of any of the decedent's property, in a 
 proceeding for that purpose commenced as usual by 
 the filing of a petition containing proper allegations 
 and followed by the issuance and service of a cita- 
 tion; the surrogate directs the personal attendance 
 of the person cited by an endorsement to that efifect 
 on the citation ; if such person interposes a veri- 
 fied answer that he is the owner of the property, or 
 
1 66 A HANDBOOK OF THE CODE. 
 
 has a lien thereon entitling him to its possession, the 
 surrogate must dismiss the proceeding ; if the surro- 
 gate is satisfied that property of the decedent is 
 withheld or concealed by the person cited, a decree 
 may be entered directing its delivery, unless such 
 person previously gives security that he will deliver 
 the property and pay all damages awarded if it is 
 determined in an action or special proceeding that 
 the property belongs to the decedent (§§ 2707-10). 
 
 Two appraisers may be appointed by the surro- 
 gate to inventory and appraise the value of the de- 
 cedent's personal property; such inventory and 
 appraisement when made must be filed with the sur- 
 rogate, and the expense of making them at an 
 amount allowed by the surrogate is an estate charge 
 (§§ 2711-16). Among personal property are in- 
 cluded leases for years, fixtures, growing crops, and 
 rents accrued prior to the death of the decedent 
 (§ 2712). 
 
 Personal property may be sold at public or private 
 sale by the executor or administrator, when neces- 
 sary, in order to pay the decedent's debts and leg- 
 acies or distributive shares; articles not specifically 
 bequeathed are to be first sold (§ 2717). 
 
 A notice for creditors fo present claims with the 
 vouchers therefor at a place specified and before a 
 date named may be published in such papers as the 
 surrogate directs, once a week for six months ; satis- 
 factory vouchers may be required in support of any 
 claim presented, together with the claimant's affi- 
 davit that no payments have been made thereon and 
 that there are no of¥-sets (§ 2718). If the justice 
 
SURROGATES COURTS. lOJ 
 
 of a claim, in whole or in part, is doubted by the 
 executor or administrator, he may agree with the 
 claimant in writing to refer the matter to a referee 
 named, and such consent may be filed with the 
 county clerk, who thereupon enters an order refer- 
 ring the matter to the referee named; judgment is 
 entered on the report of the referee as though it 
 were rendered after the trial of a reference to hear 
 and determine directed in an action, and an appeal 
 therefrom lies in the same manner. Costs are to be 
 awarded against the executor only if the payment 
 of the claim has been unreasonably resisted 
 (§§ 1826, 2718). If the executor or administrator 
 rejects a claim presented to him, suit must be 
 brought upon it within six months thereafter, or it is 
 barred, unless a written consent is filed by both par- 
 ties with the surrogate that the claim may be heard 
 and determined upon the settlement of the executor's 
 account (§ 1822). 
 
 The reasonable funeral expenses of the decedent 
 are preferred over all classes of debts, and must be 
 paid out of the first moneys received ; payment may 
 be directed by the surrogate at any time after sixty 
 days have elapsed since the granting of letters 
 (§ 2729). The decedent's dehts must be paid in the 
 following order: (a) All debts entitled to a prefer- 
 ence under United States laws; (b) all taxes due 
 prior to his death; (c) all judgments and decrees ac- 
 cording to their priority; (d) all other debts 
 (§ 2719). An executor or administrator may not 
 pay his own debt until it has been first proved before 
 and allowed by the surrogate, usually at the time o£ 
 the accounting (§ 2719). 
 
I08 A HANDBOOK OF THE CODE. 
 
 Legacies are not payable until the expiration of 
 one year from the time of the granting of letters 
 upon the estate, unless directed by the will to be 
 sooner paid. If directed to be sooner paid, the 
 executor may require a bond conditioned for the 
 refunding of the sum paid, or a proper proportionate 
 amount thereof, if the testator's assets prove to be 
 insufficient to pay his debts and legacies (§ 2721). 
 After the expiration of the year the specific legacies 
 must be first discharged, and then the general leg- 
 acies, if there be sufficient assets, or if not, then the 
 general legacies must abate in equal proportion 
 (§ 2721). 
 
 The executor or administrator may present his 
 ■account for judicial settlement: (a) At any time 
 after one year has elapsed since the granting of 
 letters, or (b) where notice to creditors to present 
 claims has been duly published for six months 
 (§ 2928). The surrogate may require the render- 
 ing of such an account on the application of a 
 creditor or person interested in the estate or a 
 surety on the official bond of the accounting party 
 whenever (a) A year has elapsed since the granting 
 of letters; (b) where his letters have been revoked 
 or his powers have ceased; (c) where real property 
 has been sold for the payment of decedent's debts 
 pursuant to a proceeding therefor, or (d) where 
 any of the decedent's real property has been dis- 
 posed of pursuant to a power in the will and one 
 year has elapsed since letters were issued (§ 2726). 
 
 The first is termed a voluntary and the second 
 an involuntary accounting. The accounting party 
 
SURROGATES COURTS. IO9 
 
 may head off a proceeding for an involuntary- 
 accounting by filing his account and petitioning 
 for a voluntary accounting, in which case the sur- 
 rogate consolidates the two proceedings (§ 2727). 
 Upon the presentation of a petition for a volun- 
 tary accounting there must be cited to attend the 
 settlement : (a) The sureties on the bond of the 
 accounting party or their legal representatives; 
 (b) all creditors and persons claiming to be 
 creditors, except such as have been paid accord- 
 ing to vouchers filed with the court; (c) the de- 
 cedent's husband or wife, and (d) the next of kin, 
 and legatees, or their personal representatives, if 
 deceased (§ 2728). The account must contain a 
 statement of all receipts and disbursements, and 
 there must be filed therewith vouchers for all 
 payments exceeding twenty dollars (§ 2729). 
 Any party may contest the account, usually by 
 filing verified objections (§ 2533), and the account 
 may be sent to a referee to hear and determine all 
 questions arising upon its settlement subject to the 
 surrogate's confirmation, modification or rejection 
 
 (§ 2546). 
 
 The executor or administrator may be allowed 
 for his costs and counsel fee upon an accounting 
 twenty-five dollars if uncontested, seventy dollars 
 if contested, and ten dollars per day for each day 
 necessarily occupied in the trial or spent in the 
 preparation of the account or in preparation for 
 trial (§§ 2561-2). An objecting party may be 
 allowed seventy dollars and ten dollars per day for 
 each day, less two, occupied upon the trial. 
 
 Commissions on the money received and paid 
 
I lO A HANDBOOK OF THE CODE. 
 
 out may be allowed to an executor or administrator 
 at the time of the settlement of the account as 
 follows : Five per cent, on the first thousand dollars, 
 two and a half per cent, on the next ten thousand 
 dollars, and one per cent, on all sums in addition to 
 the eleven thousand dollars (§ 2730). Each 
 executor or administrator of an estate amounting 
 to one hundred thousand dollars or more is en- 
 titled to full commissions (§ 2730). 
 
 The decree to be made upon an accounting must 
 direct the distribution to those entitled of any of 
 the estate remaining in the hands of the accounting 
 party (§ 2743). The shares to which the next of 
 kin are entitled in case of intestacy are detailed in 
 § 2732; the share of an infant may be directed to 
 be paid to his general guardian and applied to his 
 support and education in such amounts as the sur- 
 rogate deems necessary (§ 2746). Such decree is 
 conclusive evidence as against all parties duly cited, 
 or who appear, that the items of credit allowed are 
 correct, that the accounting party has been charged 
 with all accruing interest, that the amount charged 
 against him was all that was collectible, and that 
 he was correctly charged with increase and allowed 
 for decrease in the value of the property (§ 2742). 
 
 V. Sale of Decedent's Realty to Pay Debts 
 and Funeral Expenses. 
 
 This proceeding cannot be entertained where 
 the decedent's real property is devised expressly 
 charged with the payment of his debts and funeral 
 
SURROGATES COURTS. 1 1 I 
 
 expenses, or consists of an exempt homestead 
 (§ 2749)- 
 
 The proceeding may be instituted within three 
 years from the granting of letters upon the estate, 
 by the executor or administrator or a creditor 
 (§ 2750). The petition must state with particu- 
 larity the decedent's debts, the parcels of real 
 property and their character, the names of 
 the husband or wife and all the heirs and de- 
 visees, and if presented by the executor or adminis- 
 trator, the amount of the personal property re- 
 ceived and how applied by him (§ 2752). If the 
 surrogate is satisfied from the petition that the 
 debts and funeral expenses cannot be paid without 
 application of the real property, he must issue a cita- 
 tion directed to the persons named in the petition 
 (§ 2754), and upon its return day must hear the 
 allegations and proofs of the parties (§ 2755). 
 The decree must determine and specify the amount 
 of each debt established (§ 2758). Before he 
 makes a decree, the surrogate must be satisfied 
 (a) that the proceedings are regular, (b) that the 
 debts are valid, (c) that they are not secured by 
 mortgage or are a charge upon decedent's realty, 
 (d) that the property now sought to be disposed 
 of was not charged with the payment of the debts 
 or subject to a valid power of sale for such purpose, 
 and (e) that the decedent's personal property has 
 been all applied to payment of debts and funeral 
 expense (§ 2759). The decree may direct that the 
 property be mortgaged or leased, if sufficient 
 money can be so raised (§ 2760), but if not, a sale 
 may be directed of all the property, or so much as 
 is necessary (§ 2761). 
 
112 A HANDBOOK OF THE CODE. 
 
 VI. General Guardian. 
 
 The surrogate has full powers of appointment of 
 a general guardian of an infant's person and 
 property (§ 2821). An infant of fourteen years 
 or over may present a petition for the appointment 
 of a general guardian, (a) where no general guar- 
 dian has been previously appointed by any other 
 court or by the will of either parent, or (b) where 
 a general guardian appointed has died, become in- 
 competent, or disqualified, or has been removed 
 (§ 2822). The petition must show whether 
 either parent is living; if other than a parent is 
 sought to be appointed, the petition must show 
 why the appointment of such other person is 
 expedient, and the father, or if he is dead the 
 mother, must be cited upon the application 
 (§ 2823). The general guardian must be nomi- 
 nated by the infant subject to the surrogate's ap- 
 proval (§§ 2824-6). A relative or any other person 
 may secure in like manner the appointment of a 
 temporary guardian for an infant under fourteen 
 years, the appointment to continue until the infant 
 is fourteen (§§ 2827-8). 
 
 A general guardian must give bonds for the 
 faithful performance of his trust before he is ap- 
 pointed, and take and file his judicial oath 
 (§§ 2594, 2830). Letters of guardianship once 
 issued may be at any time revoked for the 
 guardian's misconduct or non-residence (§ 2832). 
 A general guardian must, in the month of January 
 of each year, file an annual inventory of the infant's 
 property, together with an account of all his re- 
 
SURROGATES COURTS. I 1 3 
 
 ceipts and disbursements during the preceding- 
 year; such inventory and account must be verified 
 by his affidavit as to its completeness and correct- 
 ness (§§ 2842-3). These inventories and accounts 
 must be examined under the surrogate's direction, 
 and a deHnquent guardian may be required to file 
 the same (§§ 2844-5). 
 
 A surrogate has power to direct the application 
 of so much of the income of the infant's property, 
 or so much of the principal itself when the income 
 is inadequate, as is deemed necessary to his support 
 and education (§ 2846). 
 
 A judicial settlement of the guardian's account 
 may be compelled when the ward has attained his 
 majority, or is dead, or when a successor has 
 been appointed, or the guardian's letters re- 
 voked (§ 2847). A guardian may request such a set- 
 tlement and a discharge under like circumstances 
 (§ 2849). The proceedings upon such settlement 
 are similar to the proceedings upon the settlement 
 of the account of an executor or administrator, for 
 which see supra, subdivision 4. 
 
 A guardian appointed by will must, before he 
 is entitled to act, obtain letters of guardianship 
 from the surrogate admitting the will to probate 
 (§ 2851). A guardian appointed either by will 
 or by deed may be required by the surrogate, in 
 his discretion, to give security to the same effect 
 and in the same form as in the case of a general 
 guardian (§§ 2853-4). Such a guardian may be 
 compelled to render his account for judicial set- 
 tlement in any case where a general guardian may 
 be so compelled (§ 2856). 
 
CHAPTER X. 
 
 STATE WRITS. 
 
 Certain special proceedings in which the people 
 have either a direct, or more or less indirect, interest 
 are instituted by what are called "State writs;" 
 after commencement by service of such State writ, 
 issue is usually joined by the filing of a return, i.e., 
 an answer, to the writ, and the issues proceed tc de- 
 termination in methods substantially similar to 
 any other special proceeding. The circumstances 
 under which these writs may be issued are defined 
 by the Code; they are five in number, and are 
 considered here separately. Before a writ will 
 issue, the judge presiding over the court from 
 which it issues, or a judge out of court, must first 
 endorse an allowance upon the writ (§ 1996). The 
 writ is issued in the name of the people and under 
 the seal of the court (§ 1992). Where the people 
 are directly interested or a party to the proceeding, 
 the attorney general or a district attorney makes 
 the application for the writ (§ 1993); a writ may 
 be issued upon the application of a private person, 
 in which case it is issued in the name of the people, 
 but must show that it was issued upon the relation 
 of the private person, called the relator (§ 1994). 
 The title to a proceeding prosecuted by a private 
 person is "People, c.v rcl. (or "upon the relation 
 of") John Doe v. Richard Roe." A person 
 
PROCEEDINGS BY STATE WRITS. I I 5 
 
 against whom the writ is issued is styled the de- 
 fendant (§ 1994). The writ may be made return- 
 able, i.e., require obedience to its command, or cause 
 shown, either forthwith, or at a future day speci- 
 fied (§ 1998). It is served personally, in like man- 
 ner as a summons, in the absence of special provis- 
 ions therefor (§ 1999) ■ A final determination of the 
 proceeding is called a final order (§ 1997), from 
 which an appeal lies as from an order in an action 
 (§§ 1356, 1360). Non-payment of costs awarded 
 by a final order may be punished as for a contempt 
 of court (§ 2009). 
 
 The writ of habeas corpus is of two kinds, 
 (a) to inquire into the cause of a person's deten- 
 tion, and (b) to bring a prisoner before the court 
 to testify in a pending action or proceeding. 
 
 The writ to inquire into the cause of detention 
 may be granted to any person restrained of his 
 liberty, or a writ of certiorari may be granted 
 (§ 2015). Either writ is an absolute right, unless 
 the prisoner is detained under a mandate from a 
 court or judge of the United States, or under a 
 final judgment or decree of a competent tribunal 
 of civil or criminal jurisdiction, or its final order 
 in a special proceeding, except a contempt pro- 
 ceeding, or under a mandate issued to enforce such 
 a judgment, decree or final order (§§ 2015-6). 
 Either writ is obtained upon a verified petition pre- 
 sented by the prisoner, or any person on his behalf, 
 which must show in substance, (a) the fact of im- 
 prisonment, (b) that the one imprisoned is not de- 
 tained under the excepted court process as above, (c) 
 
Il6 A HANDBOOK OF THE CODE. 
 
 the alleged cause of the imprisonment, and if under a 
 court mandate, a copy must be annexed, and 
 (d) wherein the imprisonment is claimed to be 
 illegal (§ 2019). The application must be made to 
 the Supreme Court, at a special term or appellate 
 division within the judicial district, or to a justice 
 of the court in any part of the State, or to a county 
 judge within the county, and must be granted 
 under heavy penalty (§§ 2017, 2020). The form 
 of each writ is given in Sections 2021-2. Such a 
 writ must be issued by a judge without application 
 therefor, when he has evidence before him of an 
 illegal imprisonment (§ 2025). The writ of habeas 
 corpus directs the production of the body of the 
 prisoner at a time and place specified, accompanied 
 by an explanation of the cause of the imprison- 
 ment; the writ of certiorari directs that the cause 
 of the imprisonment be certified to the court at a 
 time and place specified (§§ 2020-2). 
 
 The writ of habeas corpus must be served by an 
 elector of the State, and if the prisoner is in legal 
 custody the fees allowed by law must be paid at 
 the time of the service, and a bond furnished for 
 the payment of return charges and that the prisoner 
 will not escape (§ 2000). Where a person to whom 
 a writ is directed cannot be found, or conceals 
 himself, it may be served upon the person having 
 charge of the prisoner, or if admittance is refused 
 the writ may be affixed in a conspicuous place 
 on the outside of the place of detention (§ 2003). 
 The writ of habeas corpus may be returnable 
 forthwith, in which case it must be obeyed within 
 twenty-four hours at a place within twenty miles 
 
PROCEEDINGS BY STATE WRITS. II 7 
 
 of the place of service, with an additional day for 
 each additional twenty miles (§ 2006). 
 
 The return or answer to the writ must be verified 
 (unless made by a sworn officer), and must state 
 plainly whether or not defendant detains the 
 prisoner, and if so, the authority and true cause 
 of the imprisonment, at length (§ 2026). If the 
 writ commands the production of the body of the 
 prisoner it must be obeyed, unless the return states 
 that such production would endanger the prisoner's 
 life or health (§ 2027). This return may be denied 
 by the prisoner or the applicant for the writ. 
 The judge must immediately inquire into the facts 
 and discharge the prisoner if no lawful cause of 
 detention is shown (§§ 2031, 2039). ^^ shown to 
 be lawfully detained, the prisoner must be re- 
 manded and the writ dismissed (§§ 2032-3). The 
 legality or justice of any final process or determina- 
 tion, under which the prisoner is held is not to be 
 inquired into (§ 2034). An appeal lies from a 
 refusal to grant the writ, and from a final order 
 upon the return of said writ to discharge or re- 
 mand the prisoner, or to dismiss the proceeding 
 (§ 2058). 
 
 The ■mrit of habeas corpus to bring up a person 
 to testify as a witness in behalf of the applicant 
 may be issued out of any court of record upon 
 the appHcation of a party to an action or special 
 proceeding (§ 2008). A Supreme Court justice, or 
 a county judge, may allow such writ upon the ap- 
 plication of a party to a special proceeding pending 
 before any body or officer authorized to examine a 
 
Il8 A HANDBOOK OF THE CODE. 
 
 witness, or upon the application of a party to an 
 action pending before a court not of record 
 (§§ 2009-10). Such a writ cannot be issued 
 where the prisoner is under sentence of death, or 
 under any other sentence for a felony (§ 201 1). 
 The return to the writ must state for what cause 
 the prisoner is held, and he must, after having 
 testified, be remanded to prison if it appear he .is 
 held by authority of court process (§ 2013). 
 
 The writ of mandamus issues to command the 
 performance of a specified act by a public servant, 
 or a public body or board, or persons acting singly 
 or together in a quasi-public capacity. The writ 
 is either the writ of peremptory mandamus, which 
 commands the performance of a specified act, or an 
 alternative writ, which commands the performance 
 of an act or requires cause to be shown why its 
 command should not be obeyed. It may be 
 granted only at a special term of the Supreme 
 Court, or, when directed to a judge of the Supreme 
 Court, may be granted by an appellate division 
 (§ 2068). 
 
 A peremptory zvrit of mandamus may be issued 
 where the petitioner's right to it depends only upon 
 questions of law, and notice of the application for 
 the writ has been served upon the person or officer 
 against whom it is sought, either eight days before, 
 or such other shorter time as has been fixed by a 
 judge in an order to show cause (§ 2070). The 
 papers upon which the application is based must 
 be served with the notice. With this exception a 
 peremptory writ cannot usually be issued, until de- 
 
PROCEEDINGS BY STATE WRITS. II9 
 
 fault is made in answering an alternative writ dul}' ' 
 issued and served (§ 2070). It is made returnable 
 at a term of the court from which it issues (§ 2072), 
 and the return or answer is annexed to a copy of 
 the writ and filed with the county clerk before the 
 expiration of the first day of the term, or delivered 
 in open court (§ 2074). A motion to set aside or 
 quash the writ may be made at any term where the 
 writ might have been granted (§ 2075). A failure 
 to make a return may be punished as a contempt 
 (§ 2073). Upon the granting or denial of a per- 
 emptory writ without the issuance of a previous 
 alternative writ, costs not exceeding fifty dollars 
 may be allowed (§ 2086). 
 
 An alternative writ of mandamus must be made 
 returnable twenty days after service and at the 
 office of the county clerk (§ 2072). The writ must, 
 in the same way as the complaint in an action, 
 state the facts showing the relator's grievance, and 
 separately state and number two or more grievances 
 (§ 2076). Within twenty days after service of the 
 writ, the defendant must either demur or make 
 return thereto; such demurrer or answer must be 
 filed with the county clerk, and notice of filing 
 served upon the attorney for the people, or for the 
 relator (§ 2081). The defendant may demur to 
 the writ, or any separate statement of a grievance, 
 on the same grounds that he could demur to a 
 complaint (§ 2076), or the defendant may make a 
 return, which is subject to all the rules respecting 
 the form and contents of an answer (§ 2077). The 
 people, or the relator, may within twenty days after 
 notice of filing the return, demur to the return on 
 
I20 A HANDBOOK OF THE CODE. 
 
 the ground that it is insufiEicient in law upon its 
 face to answer the grievances complained of 
 (§ 2078). Issues of fact are raised by a denial in 
 the return of an allegation in the writ, and by 
 force of statute upon an allegation of new matter 
 contained in the return (§ 2079). The subsequent 
 proceedings upon the trial of the issues so raised 
 are the same as in an action, and the writ and 
 return are deemed the pleadings ; a final order may 
 be enforced by peremptory mandamus so far as to 
 command obedience to the specific act, but such 
 part as cannot be so enforced may be entered and 
 docketed and enforced as a judgment in an action 
 (§ 2082). The issues of fact are triable as of right 
 by a jury (§ 2083). Costs may be awarded as in 
 an action, but rest in the discretion of the court 
 (§^086). 
 
 The writ of prohibition may be either absolute, 
 or in the alternative. The writ issues from the 
 special term of the Supreme Court to an inferior 
 court, prohibiting the doing of some judicial act 
 which is threatened to be done; or, it may issue 
 from the appellate division directed to one or 
 more of the justices of the Supreme Court, or a 
 justice holding or to hold a special term thereof 
 ( §§ 2091-3). The absolute writ may only be 
 issued after an alternative writ has been issued and 
 duly served, and the return day thereof has 
 elapsed (§ 2094). The command of the alternative 
 writ is that the defendant desist or refrain from 
 any further proceedings in the action or special 
 proceeding, or with respect to the particular 
 
PROCEEDINGS BY STATE WRITS. 12 1 
 
 matter or thing described therein, until the further 
 direction of the court issuing the writ, and also to 
 show cause why further proceedings should not be 
 absolutely restrained (§ 2094). Such writ may be 
 returnable forthwith, or at a future day specified; 
 service of the writ must be made upon the court 
 or judge, and upon the adverse party to the action 
 or special proceeding (§ 2095). If no return be 
 made to the writ, the relator is entitled to an abso- 
 lute writ (§ 2096). The return must be delivered 
 in open court on the return day, or filed with the 
 clerk (§ 2096). An objection to the legal- suf- 
 ficiency of the papers upon which the writ was 
 granted may be taken in the return. The issues of 
 fact raised by the return are triable by the court 
 without a jury, but the court may, in its discretion, 
 direct a trial by a jury of any of the issues (§ 2099). 
 The proceeding ends in a final order, and if in re- 
 lator's favor, grants an absolute writ of prohi- 
 bition (§ 2100). 
 
 The writ of assessment of damages is em- 
 ployed in a proceeding whereby the damages of 
 the owner of real property taken by the State is 
 assessed. The application is made in the name 
 of the governor, and the writ issues to the 
 sherifif of the county where the property is located 
 (§§ 2103-6.) The writ describes the property as in 
 a deed and commands the sheriff to empanel a 
 jury and inquire what damages, if any, will be 
 sustained by the owner from the taking of the 
 property for the use of the State (§ 2107). This 
 question is determined by the jury, the members 
 
122 A HANDBOOK OF THE CODE. 
 
 whereof must view the property and may hear such 
 testimony as may be offered respecting the value 
 (§ 21 1 1). The court, on application, may confirm 
 or set aside the jury's finding (§§ 21 13-4). If the 
 finding is confirmed, the State treasurer pays the 
 amount thereof to the governor and the governor 
 pays the same into court, and thereupon the title 
 to the real property becomes vested in the State 
 (§§ 21 15-6). The United States may similarly 
 condemn lands for its use when the legislature of 
 the State has consented to such taking (§ 21 19). 
 
 The writ of certiorari to review the determina- 
 tion of an inferior tribunal issues only to review 
 the determination of an officer or public body other 
 than a judge or court, except that a defect in the 
 record before an appellate court may sometimes 
 be corrected by an issuance of the writ to the lower 
 court to obtain a further record of its proceedings 
 (§§ 2120, 2124). The determination of the officer 
 or public body, in order to be reviewed in this pro- 
 ceeding, must be final, and one which cannot be 
 adequately reviewed by an appeal to some court, or 
 other body, or officer, or be re-heard before some 
 officer or body (§ 2122). The writ must be applied 
 for within four months from the time the de- 
 termination sought to be reviewed became bind- 
 ing upon the relator, unless he was then an 
 infant, an incompetent, or a criminal imprisoned 
 for less than life, in which case the appellate 
 division may issue the writ within twenty 
 months after the expiration of the four months 
 (§§ 2125-6). The application is made upon 
 
PROCEEDINGS BY STATE WRITS. 1 23 
 
 an affidavit or verified petition, which may be 
 accompanied by other written proof, and is made 
 upon or without notice in the discretion of the 
 court; if notice be required, it must be accompanied 
 by a copy of the papers to be presented upon the 
 appHcation (§ 2128). 
 
 The writ may be granted only at special term or 
 appellate division (§ 2127). It is directed to the 
 body or officer whose determination is sought to 
 be reviewed, and must be made returnable within 
 twenty days after service; the defendant must 
 make and file his record, consisting of a transcript 
 of the record or proceedings required to be certified 
 (§ 2134). An omission to make return to the 
 writ may be punished as a contempt (§ 2135). 
 Either party may notice the matter for a hearing 
 at a term of the appellate division; it must be 
 heard upon the writ and return and the papers 
 upon which the writ was granted (§ 2138). The 
 only questions to be determined by the court are : 
 (a) Had the body or officer jurisdiction of the 
 subject matter; (b) was the authority of the board 
 or officer legally pursued in order to authorize it 
 to make the determination; (c) has any rule of 
 law been violated to the relator's prejudice; 
 (d) was there competent proof of all facts neces- 
 sary to authorize the determination; and (e) if 
 such competent proof was given, was there never- 
 theless such a preponderance against the existence 
 of any material fact that a jury's verdict thereon 
 would be set aside as against the weight of 
 evidence (§ 2140). 
 
 The court's final order may annul, confirm or 
 
124 A HANDBOOK OF THE CODE. 
 
 modify the determination given, wholly or in part 
 d 2141). The order must be entered in the office 
 of the clerk where the writ was returnable, and is 
 enforceable only upon the clerk's attaching and 
 filing the papers upon which the matter has been 
 heard, with a certified copy of the final order and 
 of each order involving the merits or affecting the 
 iinal order (§ 2144). 
 
CHAPTER XI. 
 
 PROCEEDINGS INSTITUTED WITHOUT 
 STATE WRIT. 
 
 Such proceedings are enumerated in Chapter 
 XVII of the Code. Those only which are of fre- 
 quent occurrence and importance will be briefly re- 
 viewed. 
 
 Summary proceedings to recover possession 
 of real property provide a speedy method to 
 obtain the ouster of a delinquent tenant or an im- 
 proper or unauthorized occupant (§§ 2131-2, 2237). 
 Application may be made to a justice of the peace 
 (and in New York County to the municipal courts), 
 as well as to any court of record except the 
 supreme and surrogate's courts; it may also be 
 made to the mayor or recorder of the city wherein 
 some of the property is situated (§ 2234). A 
 petition is presented by the person claiming to be 
 entitled to possession, describing the property and 
 the interest of the petitioner, and stating the facts 
 authorizing the removal of the person in possession 
 (§ 2235). The most frequent ground for removal 
 is non-payment of rent, or breach of a covenant in 
 a lease. 
 
 A precept is issued directed to the occupant, and 
 requiring him to remove, or show cause why pos- 
 
126 A HANDBOOK OF THE CODE. 
 
 session of the property should not be deUvered to 
 the petitioner; such precept is returnable not less 
 than three or more than five days from issuance 
 (§§ 2238-9); it may be served personally as a sum- 
 mons, but in the absence of the occupant may be 
 served upon a person of suitable age and discretion 
 residing at his dwrelling house, or upon some such 
 person residing or employed at the property 
 sought to be recovered; or if no such service can 
 be had, it may be affixed upon a conspicuous part 
 of the property (§ 2240). The occupant may file 
 an ansiver verified as an answer in an action, which 
 may raise an issue by denying any material allega- 
 tion of the petition or setting up new matter con- 
 stituting a defense or counterclaim, as though the 
 claim for rent asserted in the petition was the sub- 
 ject matter of an action (§ 2244). Unless a jury 
 is demanded, the trial must be had before the 
 justice (§ 2247). If the petitioner is successful, 
 the final order awards delivery to him of the pos- 
 session of the property (§ 2249); thereupon the 
 justice must issue a warrant directed to the sherifif 
 or a marshal, describing the property, and directing 
 the officer to remove all persons therefrom and put 
 the petitioner into full possession (§ 2250). An 
 appeal lies from the final order as from a judgment 
 of the same court; in order to stay execution of 
 the warrant, an order must be procured from a 
 judge of the appellate court (§§ 2260-2). 
 
 A committee of the person and property of an 
 incompetent may be appointed by the supreme court, 
 or a county court (§ 2320). A verified petition for 
 
PROCEEDINGS WITHOUT STATE WRIT. 12/ 
 
 • 
 
 such appointment may be presented by any person 
 to the special term or a judge at chambers; it must 
 state the names of the husband, or wife, and all the 
 next of kin and heirs at law of the alleged incom- 
 petent, so far as known to the petitioner^ and the 
 probable value of his property and the character of 
 his alleged incompetency; notice of the application 
 may be required, or may be dispensed with (§ 2323- 
 5 ) . The court upon the application may direct that 
 a commission (called a commission de hmatico in- 
 quirendo) issue to one or more fit persons, or may 
 direct that a jury trial be had of the questions pre- 
 sented by the petition ( § 2327) . If a commission be 
 issued, it directs the commissioners named to procure 
 a jury which shall inquire into the condition of the 
 alleged incompetent and the amount of his property 
 and income (§ 2328). The report of the commission- 
 ers and the jury is called an "inquisition" ; it must be 
 signed by a majority of them, and returned to the 
 court and filed with the clerk (§ 2322). If a jury 
 trial is directed, it is held at a trial term of the 
 court; the order states the questions to be 
 tried, and the subsequent proceedings are the same 
 as where questions of fact in an action are directed 
 to be tried by a jury pursuant to an order for that 
 purpose (§ 2334). Upon either species of trial of 
 the question, evidence as to incompetency must be 
 limited to a period within two years prior to the 
 trial, unless the court has otherwise specially di- 
 rected (§ 2335). The inquisition, or the verdict of 
 the jury, is only advisory, and may be confirmed or 
 rejected by the court at special term ; if the person is 
 found to be incompetent, the court, upon confirming 
 
128 A HANDBOOK OF THE CODE. 
 
 • 
 
 the inquisition or verdict, appoints a committee 
 ( § 2336) . The person appointed committee receives 
 letters therefor from the court, and gives a bond for 
 the faithful performance of his trust ; he may main- 
 tain actions in his own name as committee ; he must 
 file annual inventories and accounts as a general 
 guardian (§§ 2337-42). He is not to be sued with- 
 out leave of the court appointing him. Upon recov- 
 ery of the incompetent, the committee must be dis- 
 charged by the court and the incompetent's property 
 restored to him ; the committee's powers cease upon 
 the incompetent's death (§§ 2343-4). 
 
 A change of name of an individual may be 
 permitted by a county court, or in New York County 
 by the supreme or city court ( § 2410) . A change of 
 name of a domestic corporation may be permitted by 
 the supreme court (§ 241 1). A verified petition 
 must be presented, specifying the grounds of the 
 application, the name of the individual or corpora- 
 tion, and the name he or it proposes to assume, and 
 if an individual, his age and residence must be 
 added (§ 2412). Notice of such an application by 
 an infant's next friend must be served upon the in- 
 fant's father, or, if dead, his mother, or if both are 
 dead, upon his general guardian; notice of such an 
 application by a corporation must be published once 
 a week for six successive weeks in two newspapers 
 (§ 2413). If the court grants the application, an 
 order is made authorizing the petitioner to assume 
 the proposed name after a day specified; the order 
 must direct that it shall be entered by the county 
 clerk within ten days after it is granted and a copy 
 
PROCEEDINGS WITHOUT STATE WRIT. 12^ 
 
 published in a designated newspaper once in the case 
 of an individual and once a week for four successive 
 weeks if a corporation (§ 2414). An affidavit of 
 such publication must be filed with the county 
 clerk, and thenceforth, from the day specified in the 
 order, the petitioner shall be known by the name as- 
 sumed (§ 2415). The change of name has no effect 
 on pending actions, or proceedings, and the new 
 name may be substituted by amendment (§ 2416). 
 Changes of names are annually reported to the Sec- 
 retary of State by the clerks, and are published in the 
 Session Laws (§ 2417). 
 
 A voluntary dissolution of a domestic corpora- 
 tion may be directed by the supreme court upon the 
 application of a majority of the directors, who have 
 (a) discovered that it is insolvent, or (b) for any 
 other reason deemed it beneficial to the interests of 
 the stockholders to dissolve ( § 2419) ; or where there 
 is an equal division of the ownership of the stock 
 between contending and irreconcilable interests 
 (§ 2420). The petition must be verified by the affi- 
 davit of each petitioner (§ 2422), and must state in 
 detail the reasons for dissolution, the corporate as- 
 sets and liabilities, with the name and residence of 
 each creditor and stockholder ( § 242 1 ) . Upon pres- 
 entation of the petition, the court makes an order re- 
 quiring all persons to show cause at a time and place 
 specified not less than three months thereafter why 
 the corporation should not be dissolved ; the petition 
 and order must be entered within ten days in the of- 
 fice of the county clerk of the county where the cor- 
 poration's principal office is located; a temporary 
 
I30 A HANDBOOK OF THE CODE. 
 
 receiver of an insolvent corporation may be ap- 
 pointed by the order upon notice to the attorney- 
 general, and the creditors may be enjoined from 
 commencing or continuing any actions against it 
 ( § 2423) . A copy of the order must be published as 
 directed in the order, and a copy personally served on 
 each creditor and stockholder at least twenty days 
 before its return day, or by mail at least forty days 
 prior thereto (§§ 2424-5). The court, or a referee 
 appointed for that purpose, takes proof of the allega- 
 tions of the parties, and renders a decision in writing, 
 which must contain a statement of the corporate 
 debts and assets (§ 2426). The referee's decision 
 must be passed upon by the court on notice ( § 2428) . 
 In a proper case the court must make a final order 
 dissolving the corporation and appointing one or 
 more receivers of its property; thereupon the cor- 
 poration is dissolved and the receivers proceed to 
 collect its assets and distribute them among those en- 
 titled (§ 2429). 
 
 Other special proceedings of rather minor im- 
 portance treated in this chapter are : Proceedings re- 
 lating to the discharge of an insolvent from his 
 debts, the operation of which has been practically 
 superseded by the United States Bankruptcy Act 
 (§§ 2149-99) > proceedings to punish for a civil con- 
 tempt and to collect a fine (§§ 2266-2301) ; proceed- 
 ings to discover the death of a life tenant by the per- 
 son who is entitled to succeed to an interest in real 
 property upon the determination of the life estate 
 (§§ 2302-19) ; sale of infants' or incompetents' real 
 property where the income therefrom is insufficient 
 
PROCEEDINGS WITHOUT STATE WRIT. I31 
 
 to maintain him (§§ 2348-64); arbitrations 
 (§§ 2365-86) ; foreclosure by advertisement, which 
 is rarely used in place of the ordinary foreclo- 
 sure suit (§§ 2387-2409) ; supplementary proceed- 
 ings, already treated (pp. 76-8) ; delivery of public 
 books and papers by the prior incumbent to his suc- 
 cessor (§ 2471a). 
 
CHAPTER XII. 
 
 SPECIAL PROVISIONS RELATING TO 
 PARTICULAR ACTIONS. 
 
 I. Actions affecting real property. 
 
 II. Matrimonial actions. 
 
 III. Judgment-creditors' suits. 
 
 IV. Decedents' estates. 
 V. Joint debtors. 
 
 VI. Other miscellaneous rights of action. 
 
 I. Actions Affecting Real Property. 
 
 A lis pendens — i.e., a notice of the pendency of 
 an action affecting real property — may be filed with 
 the complaint in the office of the clerk of each county 
 where the real property is situated, which notice 
 must contain the names of the parties, the object of 
 the action, and a brief description of the property to 
 be affected thereby; such notice may be filed before 
 service of the summons, but must be followed by 
 personal service upon one of the defendants, or by 
 the commencement of substituted service, within 
 sixty days after filing (§ 1670). 
 
 The notice is immediately recorded by the 
 county clerk and indexed against specified de- 
 fendants, in accordance with a direction which 
 the plaintiff's attorney appends at the foot of 
 the notice (§ 1672). The effect of this notice is of 
 
PROVISIONS REGULATING PARTICULAR ACTIONS. 1 33 
 
 the highest importance; any person thereafter ac- 
 quiring ari interest in or hen upon the property, from 
 or under a defendant against whom a notice is in- 
 dexed, takes such interest or Hen subject to and 
 bound by all proceedings in the action, including of 
 course any final judgment therein (§ 1671). The 
 notice may be canceled only after the action is set- 
 tled, discontinued or abated, or final judgment ren- 
 dered against the party filing it and his time to 
 appeal therefrom has expired, or in case plaintiff 
 unreasonably neglects to proceed in the action 
 (§ 1674). A defendant may file a similar notice 
 upon a counterclaim (§ 1673). 
 
 The expenses of the sale of real property, pursuant 
 to a provision in a judgment, include the payment of 
 taxes, assessments and water rates which are liens 
 upon the property, and the redemption of the prop- 
 erty from prior sales therefor which have not be- 
 come absolute; the referee or other officer making 
 the sale is required to satisfy such liens out of the 
 purchase money (§ 1676). 
 
 A judgment affecting real property in any other 
 county than where it is rendered must be entered 
 in the clerk's office of such county (§ 1677). 
 
 Sales of real property under a judgment therefor 
 must be made to the highest bidder ; published notice 
 of the time and place of sale must be given; at the 
 time of the sale the terms thereof must be made 
 known, and if sold subject to any incumbrance, that 
 fact must be declared (§ 1678). The officer mak- 
 ing the sale, or the guardian of an infant party, shall 
 not purchase or be interested in a purchase of any 
 of the property sold (§ 1679). 
 
134 A HANDBOOK OF THE CODE. 
 
 The testimony of a person may be taken, for the 
 purpose of perpetuating it, upon the application of 
 one in possession of real property. Such testimony 
 is taken upon notice to all persons having adverse 
 interests, and may be received in evidence, in any 
 subsequent action, if the witness is dead, insane or 
 absent, against the party taking it or against any 
 person to whoin notice of its taking was given 
 (§§ i688a-i688i). 
 
 Ejectment is brought to recover specific real 
 property. To his claim for possession the plaintiff 
 may add a claim for damages suffered by reason of 
 the withholding of the possession ; such damages in- 
 clude the rents and profits, or the value of the use 
 and occupation of the property within six years 
 (§§ 1496-7, 1531). The value of improvements 
 made by a defendant in good faith must be allowed 
 against the plaintiff's damages, but not beyond the 
 amount of the damages (§1531)- If after the lis 
 pendens is filed a person purchases the property, that 
 person may thereby make himself liable to plaintiff 
 for the value of the use and occupation during the 
 time he possessed the property, if plaintiff is unable 
 to collect such damages from defendant (§ 1685). 
 
 Any person entitled to the possession of land (ex- 
 cept a widow seeking to enforce her dower interest) 
 may be the plaintiff (§ 1499). A mortgagee is not 
 entitled to possession and cannot sue in ejectment 
 (§ 1498). One or more of several joint tenants or 
 tenants in common may maintain the action to re- 
 cover his or their undivided shares without joining 
 the others (§ 1500). A deed is void when made by 
 
PROVISIONS REGULATING PARTICULAR ACTIONS. 1 35 
 
 a person at a time when the land is held adversely, 
 but the grantee under such a deed is given the right 
 to bring ejectment in the name of the grantor 
 ( § 1 501 ) . A tenant in common or joint tenant majr 
 maintain the action against his co-tenant, but must 
 prove an actual ouster, or a total denial of plaintiff's 
 right (§1575). If the original plaintiff dies, pend- 
 ing the trial of the action, and different persons suc- 
 ceed to his right to damages, and to the property, the 
 action may be divided into two actions (§ 1523). 
 
 The occupant must be made a defendant; if the 
 land is unoccupied the action may be maintained 
 against the person exercising acts of ownership 
 thereupon (§ 1502). Any other person claiming 
 title to or right of possession of the land adversely 
 to plaintiff may be made a defendant (§ 1503). A 
 tenant six months or more in arrears of rent may be 
 ejected in this species of action, but may secure a 
 dismissal of the action at any time before the judg- 
 ment-roll is filed by paying accrued rent with inter- 
 est and costs (§§ 1504-6). 
 
 The complaint should describe the land with 
 common certainty, as in a deed ( § 1 5 1 1 ) • Plaintiff's 
 attorney may be required to show written authority 
 to commence the action (§§ 15 12-4). 
 
 The issues of fact must be tried by a jury ( § 968 ) . 
 The judgment is conclusive as to the parties against 
 whom it is rendered, and those claiming under them 
 by title accruing after the filing of the lis pendens. 
 unless a new trial is granted (§ 1524). Within 
 three years after judgment, and upon the application 
 of the unsuccessful party or his successor in interest, 
 the court, upon payment of all costs, must make an 
 
136 A HANDBOOK OF THE CODE. 
 
 order vacating the judgment and granting a new 
 trial (§ 1525). Within two years after the second 
 final judgment, the court may make an order vacat- 
 ing the second judgment and granting a new trial, 
 upon like terms, if satisfied that justice will be pro- 
 moted and the parties' rights more satisfactorily as- 
 certained and established (§ 1525). A judgment 
 upon default becomes conclusive after three years, 
 but the court may vacate it and allow a new trial at 
 any time before five years, if satisfied that justice 
 will be promoted (§ 1526). These period? are 
 computed after the ceasing of the disability of in- 
 fancy, insanity or imprisonment, if existing when 
 the judgment-roll was filed (§ 1527). 
 
 An action for the partition of real property lies 
 when two or more persons hold or are in possession 
 of land, as joint tenants or tenants in common, and 
 have an estate of inheritance, or for life, or for years 
 therein; if the property cannot be partitioned with- 
 out great prejudice to the owners, a sale thereof and 
 partition of the proceeds, according to the respective 
 interests, may be decreed (§ 1532). 
 
 Only a joint tenant or a tenant in common may 
 be a plaintiff ( § 1538) . An infant may bring the ac- 
 tion only upon written authority from the surrogate 
 of the county, and the court may enter final judg- 
 ment only when satisfied that the infant's interests 
 will be promoted thereby (§ 1534). The validity 
 of a devise may be put in issue in an action brought 
 by an heir at law who alleges that the devise is void 
 
 (§ 1537)- 
 All persons having an undivided share in posses- 
 
PROVISIONS REGULATING PARTICULAR ACTIONS. 1 37 
 
 sion or otherwise, absolute or contingent, must be 
 made defendants; also, every person having an in- 
 choate right of dower, or whose existing dower right 
 has not been admeasured (§ 1538). Provision is 
 made for protecting creditors of a decedent in their 
 right to have the proceeds of the real property ap- 
 plied to the payment of their claims, by compelling 
 a deposit of such proceeds (§1538). At plaintiff's 
 option, all persons may be made defendants who 
 have a limited estate in the entire property, or a 
 creditor or other person having a lien or interest 
 attaching to the entire property, and a final judg- 
 ment may award to such defendant his entire right 
 or interest (§ 1539) ," and plaintiff may, at his elec- 
 tion, join as defendants all persons having liens on 
 tmdivided shares, but whether or not they are made 
 parties, their liens upon partition of the property at- 
 tach to the share set off to the party against whom 
 the lien exists (§ 1540). 
 
 Where the summons is served by substituted ser- 
 vice upon an unknown defendant, there must also be 
 subjoined a statement of the object of the action and 
 a brief description of the property ( § 1 541 ) . 
 
 The complaint describes the property as in a deed, 
 and specifies the rights of the various parties as they 
 are known to the plaintiff (§ 1542). Issue may be 
 raised by any defendant over the plaintiff's title, or 
 over the title or interest of any co-defendant; if a 
 defendant questions the title or interest of a co-de- 
 fendant, he must serve his answer upon that de- 
 fendant at least twenty days before the trial (§§ 521, 
 
 1543)- 
 
 The issues of fact raised in the answers must be 
 
138 A HANDBOOK OF THE CODE. 
 
 tried by a jury and upon the pleadings, unless an 
 order stating the issues has been made by the court, 
 in which case the jury's verdict is upon the questions 
 stated in the order (§ 1544). In case of default, or 
 where a party is an infant and no issue of fact is 
 raised, the court, without a jury, must ascertain the 
 rights of the respective parties (§ 1545). After 
 trial of the issues, an interlocutory judgment is ren- 
 dered, which states the rights of the various parties 
 and directs a partition according thereto, unless it 
 has been found that the property cannot be properly 
 partitioned, in which case it is directed to be sold and 
 the proceeds divided (§ 1546). 
 
 If partition be directed, three commissioners are 
 appointed for such purpose, who proceed to divide 
 the property into distinct parcels, and allot them 
 according to the rights of the respective parties. A 
 full report of their proceedings is made to the court, 
 and if confirmed by it, final judgment is rendered 
 directing delivery of the possession to each party of 
 the parcel allotted to him, which judgment is con- 
 clusive upon the parties, and all claiming under them 
 
 (§§ 1549-58). 
 
 The interlocutory judgment may direct a sale of 
 the property and division of the proceeds according 
 to the rights of the respective parties. A dower in- 
 terest in the entire property may be directed to be 
 sold, and in such case the right of dower in the prop- 
 erty is extinguished and the dowress becomes en- 
 titled to receive a gross sum in satisfaction of the 
 right, or to have one-third of the proceeds paid into 
 court to be invested for her benefit (§ 1568). Simi- 
 lar provisions exist respecting dower interests in un- 
 
PROVISIONS REGULATING PARTICULAR ACTIONS. 139 
 
 divided shares (§ 1569). The officer making the 
 sale files his report with the clerk, and if the sale is 
 confirmed a final judgment is entered confirming it 
 and directing the officer to execute proper convey- 
 ances and make proper division of the proceeds 
 (§§ 1576-7). Shares of infants may be paid to the 
 general guardian or directed to be invested 
 ( § 1 581 ) . Shares of absent or unknown owners are 
 to be retained for a period of twenty-five years 
 (§ 1582). Final judgment may be recorded as a 
 deed (§ 1595). 
 
 An action for dower must be commenced within 
 twenty years, unless at the time of her husband's 
 death the widow was an infant, incompetent or a 
 prisoner; damages for withholding her dower may 
 be asserted in the same action, but for a period of not 
 more than six years (§§ 1596, 1600). The accept- 
 ance by the widow of a voluntary assignment of her 
 dower bars the action (§ 1604). If the widow's 
 right of dower is established as against the heirs at 
 law, an interlocutory judgment is rendered appoint- 
 ing a referee or commissioner to admeasure her 
 dower right — i.e., the right to have lands equal in 
 value to one-third of the amount of real property of 
 which her husband died seized set off to her for her 
 life) . The final judgment which confirms the report 
 of the referee or the commissioner either awards the 
 widow a distinct parcel for life subject to the pay- 
 ment of all thereafter accruing taxes and charges, 
 or provides that a sum fixed by the court equal to 
 one-third of the rental value of the entire property 
 be paid to her during life and be a charge upon the 
 property (§§ 1607-13). 
 
140 A HANDBOOK OF THE CODE. 
 
 The judgment in an action for foreclosure of a 
 mortgage must direct the sale of the mortgaged 
 property or so much as is necessary to satisfy the 
 mortgage debt, with the expenses of the sale and the 
 costs of the action (§ 1626). After foreclosure has 
 begun, no other action can be commenced or main- 
 tained without leave of court to recover any part of 
 the mortgage debt (§ 1628). 
 
 All persons having claims subordinate to the lien 
 of the plaintiff's mortgage must be made parties 
 defendant, in order that a sale of the property may 
 extinguish their interest; where a person is made 
 defendant against whom no personal claim is made, 
 a notice subscribed by plaintiff's attorneys setting 
 forth the general object of the action, and a brief 
 description of the property affected by it, and that 
 no personal claim is made against such defendant, 
 may be served with the summons ; if such a notice is 
 served and the defendant unreasonably defends the 
 action, costs may be awarded against him (§ 423). 
 
 The complaint must state whether any other ac- 
 tion has been brought to recover any part of the 
 mortgage debt, and if so, what part, if any, has been 
 collected (§ 1629). If any such action has been 
 brought, execution upon a final judgment therein 
 must have been returned wholly or partly unsatisfied 
 before an action can be commenced to foreclose the 
 mortgage (§ 1630). 
 
 A deficiency judgment may be entered against an}' 
 defendant who is liable to plaintiff for the payment 
 of the mortgage debt, whether he has signed the bond 
 or thereafter assumed the payment of the mortgage 
 debt (§ 1627). 
 
PROVISIONS REGULATING PARTICULAR ACTIONS. Hi 
 
 Plaintiff cannot take final judgment until twenty 
 days after he has filed a notice of pendency of the 
 action, which must state the parties, the object of 
 the action, a description of the property, the date 
 and parties to the mortgage, and the time and place 
 of recording it (§§ 1631, 1670). 
 
 If answers are interposed, the trial is had by the 
 court without a jury. In case of the defendant's de- 
 fault in answering, the court may direct a reference 
 to compute the amount of the mortgage debt, and if 
 an infant is a party, the referee is directed to exam- 
 ine the plaintiff or his agent under oath as to any 
 payment. Upon the decision, or report, iinal judg- 
 ment of foreclosure and sale is entered, which fixes 
 the sum due upon the mortgage, and the costs, ap- 
 points the officer to make the sale, directs the pay- 
 ment by the officer of the expenses of the sale and 
 the costs^ and the amount so found due, and also 
 provides for the temporary disposition of any sur- 
 plus, and an award of a deficiency judgment if the 
 proceeds of the sale prove insufficient. 
 
 The method of sale and what are to be included in 
 the expenses of the sale have already been men- 
 tioned at the beginning of this chapter. (See 
 §§ 1676, 1678.) The surplus realized is paid into 
 court for the benefit of the persons entitled (§ 1633) , 
 and surplus money proceedings are thereafter insti- 
 tuted by which the rights thereto are determined. 
 
 The conveyance executed by the officer making 
 the sale vests in the purchaser the estate which the 
 mortgagee would have acquired had the equity of 
 redemption been foreclosed in his favor ; the convey- 
 ance is valid as though executed by the mortgagor 
 
142 A HANDBOOK OF THE CODE. 
 
 and mortgagee, and is an entire bar against each of 
 them and against all parties to the action properly 
 summoned and all persons claiming an interest in 
 the property acquired after the filing of the lis pen- 
 dens (§ 1632). 
 
 An action for foreclosure of a mechanic's lien 
 
 may be brought in any court which has jurisdiction 
 of an action founded on a contract for an amount 
 equal to the lien (§ 3399). Under this provision a 
 mechanic's lien of five hundred dollars or less may 
 be foreclosed in the municipal court of the City of 
 New York, for two hundred dollars or less in jus- 
 tices' courts. 
 
 The procedure in an action brought in a court not 
 of record differs considerably from the procedure 
 when the action is brought in a court of record. 
 
 When the action is brought in a court of record, 
 the Code provisions relating to the foreclosure of 
 mortgages and the sale of the property and distribu- 
 tion of the proceeds apply (§ 3401) ; as parties de- 
 fendant must be joined all subsequent lienors by 
 judgment, mortgage, mechanic's lien or otherwise, 
 and all mechanic's lienors of equal or prior right 
 (§ 3402). The court may determine the equities 
 between all the parties to the action as well as the 
 priority of the different liens (§ 3403). 
 
 In a court not of record the summons with a 
 verified complaint must be personally served upon 
 the owner at least eight days before the return day 
 (§ 3404), but in case of his absence from the State 
 or concealment therein, such service- may be made 
 by leaving a copy of the summons at his last place 
 
PROVISIONS REGULATING PARTICULAR ACTIONS. I43 
 
 of residence, and publishing a copy thereof once a 
 week for three successive weeks (§ 3405). In case 
 of defendant's default, judgment may be rendered 
 for the amount claimed (§ 3406). An issue may be 
 raised by verified answer filed on the return day of 
 the summons, and the issue tried as other issues in 
 the same court (§§ 3406-7). Execution issued upon 
 such a judgment shall direct the ofificer to sell the 
 title or interest of the owner in the premises charged 
 with the lien (§ 3408). 
 
 An action to foreclose a lien on a public i-.nprove- 
 ment may be brought in the same manner as upon 
 any other mechanic's lien (§ 3400). If the lien is 
 established, the judgment directs the municipal cor- 
 poration defendant to pay the lienors, in the order of 
 their priority and to the extent of the sums found 
 due them, so much of the amount then due from the 
 municipal corporation to the contractor as will sat- 
 isfy the liens but not exceed the amount due to the 
 contractor (§ 3418). 
 
 II. Matrimonial Actions. 
 
 In any one of the three matrimonial actions, if the 
 summons is served without the complaint it must 
 bear an inscription on it specifying the particular 
 nature of the action — viz., whether "an action to 
 annul a marriage" or "an action for a divorce" or 
 "an action for a separation" ; otherwise plaintifif will 
 not be allowed to take judgment by default if de- 
 fendant fails to appear in the action (§ 1774). 
 
 When a married woman commences one of these 
 actions, she is deemed a resident within the stat- 
 
144 A HANDBOOK OF THE CODE. 
 
 utory requirements if she dwells within the State at 
 the time of such commencement, although her hus- 
 band resides elsewhere (§ 1768). 
 
 Pending the trial of an action for divorce or for 
 separation, the court may, in its discretion, require 
 the payment by the husband to the wife of alimony 
 and counsel fee and a sum for the support of the 
 children of the marriage. For the purpose of enforc- 
 ing such an order, the court may require security to be 
 given; or upon the husband's default in making the 
 payment, the court may make an order sequestrating 
 his personal property and the rents and profits of his 
 real property, and appoint a receiver thereof; or if 
 such sequestration proves ineffectual, or appears use- 
 less, the husband may be punished for a contempt of 
 court and imprisoned, and his action may be stayed 
 or his defense stricken out (§§ 1769-73). Impris- 
 onment under such an order may continue not more 
 than three months for the non-payment of a sum less 
 than five hundred dollars, and six months if exceed- 
 ing that sum ( § 1 1 1 ) . 
 
 An action to annul a marriage, i.e., to have 
 it judicially declared void from the beginning, may 
 be brought by either party on the grounds 
 
 (§1743): 
 
 I. That one or both of the parties had not attained 
 the age of legal consent, and have not freely 
 cohabited for any time after attaining such age 
 (§ 1744). (It may be brought by the infant, his 
 parent or guardian, or next friend; it cannot be 
 brought by the one of the parties who was of the age 
 of consent when the marriage was contracted) 
 (§ 1744). 
 
PROVISIONS REGULATING PARTICULAR ACTIONS. 1 45 
 
 2. That a former husband or wife of one of the 
 parties was Hving and the former marriage was in 
 force (and if one of the parties contracted the 
 marriage in good faith, the issue thereof are deemed 
 for aU purposes legitimate children of the parent 
 competent to contract the marriage ( § 1 745 ) . 
 
 3. That one of the parties was an idiot or lunatic 
 (may be brought by any relative or next friend) 
 (§§ 1746-8). 
 
 4. That the consent of one of the parties was 
 obtained by force, duress or fraud (may be main- 
 tained by the party whose consent was so obtained,, 
 or any relative of such party, but only if the parties 
 have not voluntarily cohabited, and with knowl- 
 edge of the fraud if based on that ground) 
 
 (§ 1750). 
 
 5. That one of the parties was physically in- 
 capable of entering into the marriage state for an 
 incurable cause (may be maintained against the one 
 incapable within five years from marriage; or may 
 be maintained by the one incapable, provided he 
 was unaware of the incapacity, or of its incurable 
 character) (§ 1752). 
 
 The woman may, in addition, maintain such an 
 action where she was under sixteen and the mar- 
 riage took place without the consent of her parents 
 or guardian and has not been followed by consum- 
 mation or cohabitation, and was not ratified after 
 she became sixteen years of age (§ 1742). 
 
 In no case shall judgment annulling a marriage 
 be rendered upon default without proof of the 
 facts showing the ground therefor; the declaration 
 or confession of either party is not alone sufficient 
 
146 A HANDBOOK OF THE CODE. 
 
 as such proof; the court must, upon appHcation of 
 either party, or may of its own motion, send the 
 issues of fact to be tried by a jury (§ 1753). 
 
 An action for an absolute divorce, dissolving 
 the marriage (with the effect that the parties no 
 longer continue to be husband and wife, and 
 nothing remains of the marriage status, in the way 
 of rights and duties from one to the other, save 
 those prescribed by statute, or directed by the 
 judgment) may be maintained against the party 
 to the marriage guilty of adultery (§ 1756) : 
 
 1. Where both parties were residents of the State 
 when the offense was committed. 
 
 2. When the parties were married in the State. 
 
 3. Where the plaintiff was a resident of the State 
 when the offense was committed and is a resident 
 when the action is commenced. 
 
 4. Where the offense was committed within the 
 State, and the plaintiff, when the action is com- 
 menced, is a resident. 
 
 The court has no jurisdiction to decree a divorce 
 except in the cases enumerated in the statute, and 
 the complaint must show and the proof must es- 
 tablish that the jurisdictional requisites exist. 
 
 If the defendant does not appear or answer, 
 plaintiff must establish the material allegations of 
 the complaint before he is entitled to judgment, 
 and, in addition thereto, must (by his own testi- 
 mony or otherwise) prove that no divorce has been 
 rendered against him in the State (§ 1757). 
 
 The defendant's answer need not be verified, 
 
PROVISIONS REGULATING PARTICULAR ACTIONS. I47 
 
 notwithstanding the verification of the complaint 
 
 (§ 1757)- 
 
 The issues raised by the answer must be tried by 
 a jury, if either party makes appHcation therefor 
 or the court so directs (§ 1757). 
 
 A co-respondent may be served by either party 
 with his or her pleading; in such case, the co- 
 respondent may appear and defend the issues so 
 far as they af¥ect him ; or he may at any time before 
 entry of judgment appear on his own motion and de- 
 fend (§ 1757). 
 
 Although plaintiff establishes the fact of the de- 
 fendant's adultery, he is nevertheless not entitled 
 to a decree of divorce (a) if the adultery was com- 
 mitted by his procurement or connivance, or (b) has 
 been forgiven, (c) if he has voluntarily cohabited 
 with the defendant after knowledge of the adultery, 
 (d) if five years have elapsed between its discovery 
 and the commencement of the action, or (e) where 
 plaintiff has also been guilty of adultery (§ 1758). 
 
 In this action, the plaintiff and defendant are 
 entirely incompetent as witnesses against the other, 
 except to prove the marriage and disprove the 
 allegation of adultery (§ 830). The plaintiff, how- 
 ever, on the trial, or in case of default, is allowed 
 to negative the existence of a previous divorce, and 
 ex necessitate, is permitted by the court to further 
 negative forgiveness and connivance, procurement, 
 voluntary cohabitation with knowledge of the fact, 
 and the lapse of five years since discovery by him, 
 as required by statute (§ 1758). 
 
 After securing a decree of absolute divorce, 
 plaintiff may marry again, but the defendant is 
 
148 A HANDBOOK OF THE CODE. 
 
 forbidden to marry during the plaintiff's life 
 
 (§ 1761). 
 
 If the wife is the plaintiff, the legitimacy of any 
 child born or begotten prior to the commencement 
 of the action is not affected by the judgment; such 
 judgment may require the defendant to provide 
 suitably for the education and maintenance of the 
 children of the marriage and for plaintiff's support, 
 but this provision may at any time thereafter be 
 annulled, varied or modified; the wife's right to 
 dower existing down to the time of the judgment 
 remains unaffected (§ 1759). 
 
 If the husband is the plaintiff, the legitimacy cf 
 any child born or begotten before the commission 
 of the offense is not affected by the judgment, but 
 the legitimacy of any subsequent child may be de- 
 termined as one of the issues, although legitimacy 
 is presumed in the absence of contrary proof; the 
 wife's dower interest in plaintiff's property is de- 
 stroyed by the judgment (§ 1760). 
 
 An action to procure a separation (a limited 
 divorce, which prevents the exercise of some of the 
 marital rights, but leaves the marriage status 
 otherwise unaffected) may be maintained by either 
 party to a marriage because of (a) cruel and in- 
 human treatment; (b) such conduct as renders 
 continuance of cohabitation unsafe and improper; 
 (c) abandonment of the plaintiff, or (d) the neglect 
 or refusal by the defendant husband to provide for 
 the plaintiff (§ 1762); but in order that the court 
 may entertain the action, either (a) both parties 
 at the time of its commencement must be residents 
 
PROVISIONS REGULATING PARTICULAR ACTIONS. I49 
 
 of the State, or (b) the marriage must have been 
 solemnized within the State, and the plaintiff a 
 resident when the action is commenced, or (c) the 
 parties must have become residents of the State for a 
 term of one year, and the plaintiff is a resident 
 when the action is commenced (§ 1763). 
 
 The complaint must show these necessary juris- 
 dictional facts; it must also specify particularly the 
 nature and circumstances of the defendant's mis- 
 conduct, with time and place thereof (§ 1764). 
 
 The answer may, in addition to defenses, set up 
 plaintiff's misconduct of a character which would 
 entitle defendant to a decree of separation; if the 
 charge is established, the defendant is entitled to 
 judgment in the action (§ 1765). 
 
 A party is not entitled as of right to a trial by 
 jury, but the court may, in its discretion, direct a 
 jury trial of one or more questions of fact raised 
 in the action (§ 971). 
 
 Final judgment may separate the parties from 
 bed and board forever, or for a limited time; upon 
 the joint application of the parties, with proof of 
 their reconciliation, the court may revoke the 
 judgment at any time (§ 1767). 
 
 A final judgment in favor of the wife may direct 
 that defendant provide for her suitable mainte- 
 nance, and for the education and maintenance of 
 the children (§ 1766). 
 
 III. Judgment Creditors' Suits. 
 
 The action is somewhat in the nature of supple- 
 mentary proceedings ; it may, however, be ancillary 
 thereto and brought when the debtor or other person. 
 
ISO A HANDBOOK OF THE CODE. 
 
 as a witness upon supplementary proceedings, dis- 
 closes that property exists which can be reached 
 in the action. After return of an execution upon 
 a judgment unsatisfied, the judgment-creditor may 
 bring the action to reach and apply non-leviable 
 assets of the judgment-debtor, or to set aside 
 an apparent bar and reach leviable assets 
 (§§ 1871-3). The execution upon plaintiff's judg- 
 ment must have been issued to the sheriff of the 
 county where the judgment-debtor resides, or if 
 he is a non-resident, to the sheriff of the county 
 where he has an office for the regular and personal 
 transaction of business, or if he has no such office, 
 to the sheriff of the county where the judgment- 
 roll is filed (§ 1872). 
 
 A temporary injunction may be issued restrain- 
 ing the transfer by the judgment-debtor or the 
 payment to him of any property which might be 
 applied to satisfy plaintiff's judgment (§ 1876). 
 A temporary or permanent receiver may be ap- 
 pointed, to whom the debtor or any other defendant 
 may be directed to deliver any property or docu- 
 ments relating thereto, and to execute any neces- 
 sary instrument of transfer (§ 1877). The debtor 
 or other defendant may be compelled to appear 
 before the court or a referee and be examined 
 under oath concerning the debtor's property 
 (§ 1878). 
 
 A judgment may be sued upon by the judgment- 
 creditor and a new judgment obtained (a) where 
 ten years have elapsed since it was docketed, or 
 (b) if it was rendered upon defendant's default in 
 
PROVISIONS REGULATING PARTICULAR ACTIONS. I5I 
 
 answering and appearing, and upon substituted 
 service of the summons, or (c) if the court in which 
 the second action is brought has previously made 
 an order upon notice to the judgment-debtor 
 granting leave to bring the second action (§ 191 3). 
 
 IV. Actions Affecting Estates of Decedents. 
 
 A creditor of a decedent may bring an action 
 against the persons who have received, as legatees, 
 next of kin, or husband or wife, any of the decedent's 
 personal property or the proceeds of its sale, and 
 in such action may recover satisfaction of his debt to 
 the extent of such assets as were received by the de- 
 fendants (§ 1837). The creditor may sue one or all 
 of the persons to whom distribution of su-ch assets 
 was made; if brought against all of them jointly, 
 the amount recovered must be apportioned among 
 the defendants in proportion to the respective 
 amounts received by them; if brought against one 
 of them severally, the recovery cannot exceed the 
 amount which the creditor would have been en- 
 titled to recover against him in a joint action 
 (§§ 1838-40). 
 
 A similar action may be maintained by a creditor 
 against the heirs of an intestate, or devisees of a 
 testator, but only in case three years have elapsed 
 since the decedent's death, or since letters testa- 
 mentary or of administration were granted upon 
 his estate (§§ 1843-4). During such three years, 
 the creditor's remedy is by a proceeding in the 
 surrogate's court to have such real estate sold and 
 applied to the payment of debts (§ 2749, etc.). 
 
152 A HANDBOOK OF THE CODE. 
 
 Such an action must be brought jointly against 
 all the heirs at law or all the devisees, and the 
 recovery apportioned among them (§§ 1846-7). 
 It is necessary for plaintiff to establish that the 
 decedent's personal assets were insufficient to pay 
 plaintiff's debt (§ 1848). 
 
 An action to establish a will may be brought 
 in the Supreme Court where a will of personal 
 property has been duly executed by a non-resident 
 according to the laws of his residence, and the 
 case is not one where the surrogate's court can 
 admit the will to probate; or where a will executed 
 in any such manner as to entitle it to probate 
 cannot be obtained from another jurisdiction, or 
 has been lost or destroyed by accident or design 
 before probate (§ 1861). The contents of such a 
 will must be incorporated into the final judgment 
 establishing it, which judgment the surrogate may 
 record and letters testamentary must be granted 
 thereupon (§§ 1862-4). The provisions of a lost 
 or destroyed will must be clearly and distinctly 
 proven by at least two credible witnesses, a correct 
 copy or draft being equivalent to one witness 
 (§ 1865). 
 
 The validity, construction and effect of a linll of 
 real property within the State may be made the 
 subject of an action in like manner as a deed 
 (§ 1866). Any person interested in support of or 
 against a will admitted to probate by a surrogate 
 may, within two years from such probate, bring an 
 action to determine its validity by a trial before a 
 jury (§ 2653a). 
 
 An action to recover his share of the decedent's 
 
PROVISIONS REGULATING PARTICULAR ACTIONS. 1 53 
 
 estate may be maintained by an after-born child 
 against whom, for that reason, the will is a nullity 
 (§ 1868). 
 
 A legatee, or ne.vt of kin, may, after the expira- 
 tion of one year from the granting of letters testa- 
 mentary, or of administration, maintain an action 
 against the executor, or administrator, after refusal 
 by the latter to pay the legacy, or distributive 
 share (§ 1819). 
 
 V. Joint Debtors. 
 
 An action against joint debtors may proceed to 
 final judgment although some only of the de- 
 fendants have been served or have appeared 
 (§ 1932). In such case, the judgment is conclusive 
 evidence of the liability of each defendant served 
 or who appeared, and is binding upon the joint 
 property of all the defendants and the individual 
 property of the defendants serving or appearing 
 (§§ I933"5)- The clerk, upon docketing the judg- 
 ment, must endorse the words "not summoned" 
 against the name of each defendant not served and 
 who has not appeared (§ 1936). 
 
 Upon failing to obtain satisfaction of this 
 original judgment, the plaintifif may thereafter 
 bring an action against any one or more of the 
 defendants who were not summoned in the original 
 action (§ 1937). The complaint must be verified, 
 and must allege that the judgment is not paid, and 
 state the sum then remaining unpaid (§ 1938). 
 The answer may contain, in addition to the defenses 
 which might have been set up in the original action, 
 
154 A HANDBOOK OF THE CODE. 
 
 objections to the judgment, and defenses and 
 counterclaims thereafter arising (§ 1939). 
 
 Joint debtors who are not co-partners may 
 compound separately, and the composition dis- 
 charges only the debtor making it; this modifies 
 a common law rule that such a composition by a 
 joint debtor would inure to the benefit of all and 
 extinguish the debt (§§ 1932-4). 
 
 VI. Provisions Relating to Other Miscella- 
 neous Rights of Action. 
 
 An action by a resident, or domestic corporation, 
 against a foreign corporation may be main- 
 tained for any cause of action; an action by a non- 
 resident or foreign corporation against a foreign 
 corporation may only be maintained (a) upon a 
 contract made within the State or relating to 
 property situated within the State at the time of 
 its making; (b) to recover real property or a 
 chattel within the State; (c) upon a cause of action 
 arising within the State, unless affecting real 
 property outside of the State (§ 1780). 
 
 An action by a private person upon the 
 official bond of a public officer (which reads to 
 the people of the State) cannot be prosecuted with- 
 out leave of court first obtained. This leave may be 
 obtained without notice upon affidavits showing the 
 ground of action existing in favor of the applicant 
 (§§ 1880-92). 
 
 An action to recover damages for a wrongful 
 act, neglect or default, by which the decedent's 
 
PROVISIONS REGULATING PARTICULAR ACTIONS. I 5 J. 
 
 death was caused, may be maintained by the 
 executor or administrator; such action must be 
 brought within two years, and the damages re- 
 covered are exclusively for the benefit of the wife 
 or husband and next of kin (§§ 1902-3). The 
 damages awarded may be such a sum as the jury 
 deems to be a fair and just compensation for the 
 pecuniary injuries resulting to the persons for 
 whose benefit the action is brought; the clerk must 
 add to the amount awarded interest from the de- 
 cedent's death (§ 1904). At common law, no 
 action of this character existed, and the right of 
 action created by these sections refers only to a 
 death so caused within the State. 
 
 An action of slander may be maintained by a 
 woman upon words imputing unchastity to her 
 without alleging or proving special damages 
 (§ 1906). At common law no such action would 
 lie without showing special damages resulting. 
 
 An action may be maintained by a taxpayer of 
 the particular locality to prevent waste of public 
 funds or property (§ 1925). 
 
INDEX. 
 
 [Numbers refer to Pages.] 
 
 ACCOUNTING by executor or administrator, 108-110. 
 ACTIONS, CIVIL, defined, iS. 
 
 when barred by Statute of Limitations, 22-23. 
 
 when right of, assignable, 24. 
 
 procedure in ordinary course of, 24-86. 
 
 joinder of, 32. 
 
 provisions regulating place of trial of, 59. 
 
 bringing to trial, 60-61. 
 
 placing on calendar, 61. 
 
 preferences among, 61. 
 
 costs in, 68-6g. 
 
 appeals in, 79-84. 
 
 procedure in, in courts not of record, 87-89. 
 ADMINISTRATOR. See Executor and Administrator 
 
 and Surrogates' Courts. 
 ADMINISTRATOR, TEMPORARY, when appointed, 104. 
 
 powers and duties, 105. 
 ADMINISTRATOR WITH WILL ANNEXED, when ap- 
 pointed, 100. 
 
 powers and duties of, 100. 
 
 in what priority letters to, may issue, loi. 
 ALIMONY AND COUNSEL FEE, in matrimonial actions, 
 
 pending trial, 144. 
 .AMENDMENT of pleadings, 38-39. 
 
 ANNULMENT OF MARRIAGE, ACTION FOR, when 
 maintainable, 144. 
 
 procedure in, 145-146. 
 ANSWER, contents of, 34-36. 
 
 effect of denials in, 34. 
 
 character of denials in, 34. 
 
 new matter in, 35. 
 
 counterclaims in, 35-36. 
 
158 A HANDBOOK OF THE CODE. 
 
 APPEALS, generally, 79-82. 
 
 to Appellate Division, 82-83. 
 
 to Court of Appeals, 83-85. 
 
 to Appellate Term, 85. 
 
 to General Term of the City Court of New York, 86. 
 
 how taken, generally, 79. 
 
 time of taking, 79. 
 
 stay of proceedings pending, 80. 
 
 on what papers heard, 80. 
 
 certification of record on, 81. 
 
 review of exceptions on, 81-82. 
 
 what questions reviewed on appeal, by Appellate Divi- 
 sion, 82. 
 
 id. by Court of Appeals, 84. 
 
 from courts not of record, 89. 
 
 from surrogate's court, 96. 
 APPEARANCE by defendant, effect of, 30. 
 
 how made, 30. 
 
 may contain demand for complaint, 32. 
 
 in surrogate's court, 94. 
 APPELLANT, defined, 79- 
 
 who may be, 79. 
 APPELLATE DIVISION, organization and jurisdiction of, 
 5-6, 82-83. 
 
 appeal to, on what heard, 80. 
 
 time of taking appeal to, 83. 
 
 judgment after decision by, 83. 
 APPELLATE TERM, how constituted, 85. 
 
 jurisdiction of, 85. 
 
 time of taking appeal to, 85. 
 ARBITRATION, defined, 18. 
 
 effect of, 18. 
 
 procedure under, 130. 
 ARREST, ORDER OF, when obtained, 43. 
 
 of woman for wilful injury only, 43. 
 
 by whom granted, 43. 
 
 contents of, 43-44. 
 
 upon what papers, 43. 
 
 how vacated, 44. 
 
 imprisonment under, 44. 
 ASSESSMENT OF DAMAGES, offer permitting, at speci- 
 fied sum, 55. 
 
IXDEX. 
 
 159 
 
 ASSESSMENT OF DAMAGES, WRIT OF, 121-122. 
 
 See, also. State Writs. 
 ASSOCIATION, VOLUNTARY, how to sue and be sued, 26. 
 ATTACHMENT, WARRANT OF, when obtained, 46-47. 
 upon what papers granted, 47. 
 by whom granted, 47. 
 contents of, 47-48. 
 how executed, 48-49. 
 how vacated or discharged. 50. 
 ATTORNEYS AT LAW, admission of, how regulated, 
 5, 16. 
 appearance of, 16. 
 suspension of, 16. 
 lien of, 16. 
 
 certain acts of, prohibited, 16-17. 
 powers of, 16-17. 
 
 liable until security for costs given, 54. 
 competency as witness, 66. 
 may satisfy judgment, 76. 
 BILL OF PARTICULARS, defined, 40. 
 
 when awarded, 40. 
 BOND, ACTION UPON, of public officer, 154. 
 CASE ON APPEAL, defined, 80. 
 of what consists, 81. 
 certification of, 81. 
 CERTIORARI, WRIT OF, 115-117, 122-124. 
 
 See, also, Statk Writs. 
 CHANGE OF NAME, proceedings for, 128-129. 
 CHILD, ACTION BY AFTER-BORN, to obtain share of 
 
 estate, 152-153. 
 CITATION, defined, 90, 92. 
 contents of, 93. 
 how served, 93. 
 
 on probate of will, to whom directed, 98. 
 CITY MARSHALS, powers and duties of, 15. 
 
 service of summons by, in municipal courts, 29. 
 CITY COURT OF BROOKLYN, 6. 
 
 CITY COURT OF THE CITY OF NEW YORK, organiza- 
 tion and jurisdiction of, 9-10. 
 appeals from, 10. 
 appeals to General Term of, 86. 
 CLERK OF COURT, powers and duties of, 15. 
 
l6o A HANDBOOK OF THE CODE. 
 
 CODE OF CIVIL PROCEDURE, commissioners reporting 
 the, 2. 
 
 synopsis of chapters of, 2-3. 
 
 when taking effect, 2-3. 
 CODE OF PROCEDURE, its preparation and adoption, 1-2. 
 COMMITTEE OF INCOMPETENT, proceedings for ap- 
 pointment of, 126-128. 
 COMPLAINT, defined, 31. 
 
 contents of, 31. 
 
 joinder of actions in, 32. 
 CONSTABLES, powers and duties of, 15. 
 CONTEMPT, proceedings to punish for civil, 130. 
 CORONER, powers and duties of, 15. 
 CORPORATION, how to sue or be sued, 26. 
 
 domestic, service of suniinons upon, 28. 
 
 foreign, service of summons upon, 28. 
 
 capacity of, how put in issue, 35, 41. 
 
 capacity of, to be alleged, 41. 
 
 misnomer of, 42. 
 
 answer of, in action on note, 42. 
 
 proceedings to change name of, 128-129. 
 
 proceedings for voluntary dissolution of, 129-130. 
 
 actions against foreign, when maintainable, 154. 
 COSTS, amount of, 68-69. 
 
 how taxed, 69. 
 
 how taxation reviewed, 69. 
 
 in justice's judgment, to be paid on appeal taken, 89. 
 
 in surrogate's courts, 96. 
 
 security for, 53-55. 
 COUNTERCLAIM, defined, 34, 35- 
 
 in courts not of record, 88. 
 COUNTY CLERK, also clerk of Supreme Court, 15. 
 
 See, also. Clerk of Court. 
 COUNTY COURTS, jurisdiction and organization of, 7-8. 
 COUNTY JUDGE, when also surrogate, 8. 
 COURT OF APPEALS, 4-S, 83-85. 
 COURT OF CHANCERY, when abolished, i. 
 COURT OF COMMON PLEAS OF THE CITY OF NEW 
 
 YORK, 6. 
 COURT RULES, how established, 3. 
 
 effect of, 3. 
 COURTS, general organization of, I3-I7- 
 
 orders of, distinguished from judge's orders, 13. 
 
INDEX. l6l 
 
 COURTS OF RECORD, what are, 4. 
 
 procedure in, 24-86. 
 COURTS NOT OF RECORD, what are, 4. 
 
 jurisdiction of, 4. 
 
 procedure in, 87-89. 
 CREDITORS' SUITS, 149-150. 
 DEATH, ACTION FOR NEGLIGENTLY CAUSING, 
 
 154-155. 
 DECEDENTS' ESTATES, appraisement of, 106. 
 
 notice to present claims against, 106. 
 
 funeral expenses a preferred claim against, 107. 
 
 claims against, in what order paid, 107. 
 
 legacies, when payable out of, 108. 
 
 sale of realty to pay claims against, lio-iii. 
 
 special provisions regulating actions against, 151-153. 
 
 action by after-born child to obtain share of, 152-153. 
 
 action by legatee or next of kin to obtain share of, 153. 
 DECREE, SURROGATE'S, defined, 95. 
 
 may be docketed, 95. 
 
 execution upon, 95. 
 
 enforceable by punishment for contempt, 96. 
 
 effect of, upon an accotmting, no. 
 DEFENDANTS, who should be, 25. 
 
 unknown, how designated, 26. 
 
 how served with summons, 27-30. 
 DELIVERY OF PUBLIC BOOKS AND PAPERS, pro- 
 ceedings to enforce, 131. 
 DEMURRER, defined, 33. 
 
 to complaint, grounds of, 33. 
 
 to new matter in answer, 36. 
 
 to counterclaim, 36. 
 
 to reply, 37. 
 DEPOSITIONS, 56-58. 
 
 DISCOVERY AND INSPECTION, of books and docu- 
 ments, when allowed, 56. 
 
 of assets in surrogate's court, 105. 
 DISPOSSESS PROCEEDINGS, 125-126. 
 DISSOLUTION OF CORPORATION, proceedings for 
 
 voluntary, 129-130. 
 DIVORCE, ACTION FOR, when maintainable, 146. 
 
 special provisions regulating, 146-148. 
 DOCUMENTARY EVIDENCE, preparation of, 58-59- 
 
l62 A HANDBOOK OF THE CODE. 
 
 DOWER, ACTION FOR, special provisions relating to 
 
 procedure in, 139. 
 EJECTMENT, ACTION OF, special provisions relating to 
 
 procedure in, 134-136. 
 EVIDENCE, preparation of documentary, 58-59. 
 
 when certified copy admitted as, 58. 
 
 instrument acknowledged as, 59. 
 
 general provisions relating to, 64-67. 
 
 in equity cases, how taken, 64. 
 
 competency of certain persons to give, 65-67. 
 
 of adverse party, may be rebutted, 67. 
 
 effect of seal as, 67. 
 
 in surrogate's court, 94. 
 
 of witness as to right in real property, how perpetu- 
 ated, 134. 
 EXCEPTIONS, defined, 81. 
 
 how and when taken, 81. 
 
 not taken to denial of motion for new trial, 81. 
 
 heard by Appellate Court in first instance, 82. 
 
 in surrogate's courts, 95. 
 EXECUTIONS, 73-76. 
 
 when may be issued, TZ- 
 
 different kinds of, defined, TZ. 
 
 against property, to what county issued, Ti- 
 
 id., contents of, 73. 
 
 id., exemptions from levy under, 74. 
 
 id., personal property, how sold under, 74. 
 
 id., real property, how sold under, 75-76. 
 
 against person, 76. 
 
 on judgment of a court not of record, 89. 
 EXECUTOR OR ADMINISTRATOR, how to sue and be 
 sued, 26. 
 
 competency of interested witness in action against, 65. 
 
 letters issued to, 97. 
 
 when disqualified, 100, 104. 
 
 proceeding for discovery of estate property by, 105. 
 
 sale of estate property by, 106. 
 
 advertising for claims, 106. 
 
 may refer disputed claim, 107. 
 
 payment of funeral expenses by, 107. 
 
 payment of debts by, 107. 
 
 payment of personal claim, 107. 
 
 payment of legacies, 108. 
 
INDEX. 163 
 
 EXECUTOR OR ADMINISTRATOR— Cojih'jiM^rf. 
 accounting by, 108-110. 
 commissions of, 109. 
 
 proceedings by, to sell realty to pay claims, iio-iil. 
 may maintain action for negligently causing death, 
 
 IS4-ISS- 
 FORECLOSURE OF MORTGAGE, by advertisement, 130. 
 
 by action, 140-142. 
 GENERAL RULES OF PRACTICE, how established, 3- 
 
 effect of, 3. 
 GUARDIAN, GENERAL, when appointed, 112. 
 
 powers and duties of, 112-113. 
 
 not to purchase infant's real property at judicial 
 sale, 133. 
 GUARDIAN, SPECIAL, in surrogate's courts, 94. 
 
 costs allowable to, 96. 
 HABEAS CORPUS, WRIT OF, 115-118. 
 
 Sec, also, State Writs. 
 HUSBAND AND WIFE, as parties to an action, 25. 
 
 as witnesses, 65-66. 
 INCOMPETENT, how made a party to an action, 25. 
 
 proceedings for appointment of committee of, 126-128. 
 
 proceedings for sale of real property of, 130. 
 INFANT, how made a party to an action, 25. 
 
 defendant, service of summons upon, 28. 
 
 special guardian for, in surrogate's court, 94. 
 
 general guardian of, 112-113. 
 
 proceedings for sale of real property of, 130. 
 INJUNCTION ORDER, when obtained, 44-45. 
 
 by whom granted, 45. 
 
 contents of, 45. 
 
 how vacated, 45. 
 
 damages under, how determined, 46. 
 
 in judgment creditor's suit, 150. 
 INSOLVENT, proceeding to obtain discharge of, 130. 
 ISSUES, defined, 31- 
 
 how raised, 31-37. 
 JAIL LIBERTIES, what are, 14. 
 JOINT DEBTORS as parties defendants, 26. 
 
 actions against, special provisions regulating, IS3-IS4- 
 
 may compound separately, 154. 
 JUDGE in or out of court distinguished, 13. 
 
164 A HANDBOOK OF THE CODE. 
 
 JUDGMENT, complaint must demand, 32. 
 
 how pleaded, 41. 
 
 oflfer of, 55. 
 
 entry of, of what consists, 70. 
 
 id., on default, 70. 
 
 id,, after jury trial, 71. 
 
 id., after trial by court, 71. 
 
 effect of, dismissing complaint, 72. 
 
 docketing of, 72. 
 
 lien of, 72-73. 
 
 when enforceable by execution, y^- 
 
 when enforceable by proceedings to punish for con- 
 tempt, 7z. 
 
 how satisfied under executions against property, 73-76. 
 
 how satisfied of record, 76. 
 
 execution against person upon, 76. 
 
 upon determination of Appellate Division, 83. 
 
 upon determination of Court of Appeals, 84. 
 
 in court not of record, 88. 
 
 afifecting real property, where entered, 133. 
 
 in action of ejectment, effect of, 135-136. 
 
 when action on, maintainable, 150-151. 
 
 upon default in action against joint debtors, 153. 
 JUDGMENT CREDITORS' SUITS, 149-150. 
 JUDGMENT ROLL, 71. 
 
 JURISDICTION OF CIVIL COURTS, 4-12. 
 JURORS, how notified to attend, 14. 
 JURY, what actions triable by, 62. 
 
 when trial by, directed by court, 62-63. 
 
 how waived, 63. 
 
 verdict of, 63-64. 
 
 in courts not of record, 88. 
 JUSTICES' COURTS, organization and jurisdiction of, 12. 
 LEGATEE, ACTION BY, to obtain legacy, 153. 
 LETTERS OF ADMINISTRATION, defined, 97. 
 
 effect of, 97. 
 
 may be revoked, 97. 
 
 to whom issued, 103. 
 
 proof before issuance of, 104. 
 
 security upon issuance of, 104. 
 LETTERS OF GUARDIANSHIP, defined, 97. 
 
 effect of, 97. 
 
 may be revoked, 97. 
 
INDEX. 165 
 
 LETTERS TESTAMENTARY, defined, 97. 
 
 eflfect of, 97. 
 
 may be revoked, 97. 
 
 when issued, 100. 
 
 ancillary, when issued, 105. 
 LIFE TENANT, proceedings to discover death of, 130. 
 LIMITATIONS, STATUTE OF, 20-23. 
 
 defined, 20. 
 
 acknowledgment or new promise under, 20. 
 
 certain time excluded, 20. 
 
 application of, when demand necessary, 21. 
 
 must be pleaded, 22. 
 
 action, how commenced under, 22. 
 
 when actions barred by, 22-23. 
 
 applies to special proceedings, 98. 
 
 when claim against an estate barred by, 107. 
 LIS PENDENS, 132-133. 
 
 defined, 132. 
 
 contents of, 132. 
 
 effect of, 133. 
 LUNATIC. See Incompetent. 
 MANDAMUS, WRIT OF, 1 18-120. 
 
 See, also, State Writs. 
 MARRIED WOMAN, when a resident for parpose of 
 
 bringing matrimonial action, 143. 
 MATRIMONIAL ACTIONS, 143-149. 
 
 references in, 63. 
 
 competency of parties as witnesses in, 65-66. 
 MECHANIC'S LIEN, ACTION TO FORECLOSE, spe- 
 cial provisions relating to procedure in, 142-143. 
 MINISTERIAL OFFICERS OF COURTS, enumerated 
 
 and defined, 14-16. 
 MUNICIPAL COURTS OF THE CITY OF NEW YORK, 
 organization and jurisdiction of, 10-12. 
 
 actions in, where brought, 11. 
 
 trials in, 12. 
 
 appeals from. 86. 
 NAME, proceedings for change of, 128-129. 
 NEGLIGENCE, ACTION FOR, when causing death, 154- 
 
 iSS- 
 NEXT OF KIN, ACTION BY, to obtain distributive 
 
 share of estate, 153. 
 NOTE OF ISSUE, 61. 
 
l66 A HANDBOOK OF THE. CODE. 
 
 NOTICE OF PENDENCY OF ACTION, 132-133- 
 
 NOTICE OF TRIAL, 60-61. 
 
 OFFER, of assessment of damages at specified sum, 55. 
 
 of judgment, $$. 
 ORGANIZATION OF CIVIL COURTS, 4-12. 
 PARTIES, to a civil action, 24-26. 
 
 omitted, may apply to be joined, 26. 
 PARTITION, ACTION OF, special provisions relating to 
 
 procedure in, 136-139. 
 PLAINTIFF, defined, 24. 
 
 who should be, 24. 
 
 when security for costs may be required of, 53. 
 PLEADINGS, purpose of, 31. 
 
 enumerated, 31. 
 
 to be subscribed, 31. 
 
 considered in detail, 31-37. 
 
 verification of, 37. 
 
 amendment of, 38-39. 
 
 variance between proof and, 39. 
 
 irrelevant matter in, 39. 
 
 frivolous, defined, 39. 
 
 frivolous, remedy against, 39. 
 
 sham, defined, 40. 
 
 sham, remedy against, 40. 
 
 supplemental, 40. 
 
 special provisions affecting, 40-42. 
 
 in courts not of record, 87. 
 POOR PERSON, who may be allowed to sue as, 25. 
 PRESUMPTION OF DEATH, when arises, 67. 
 PROBATE OF WILL, when surrogate may allow, 97-98. 
 
 who may apply for, 98. 
 
 who must be cited upon, 98. 
 
 proof of due execution before, 99. 
 
 when lost or destroyed, 99. 
 
 appeal from decree of, gg. 
 
 effect of, generally, gg-ioo. 
 
 id., of personal property, 101-102. 
 
 id., of real and personal property, 102-103. 
 PROCEDURE, in an action, in courts of record, 24-86. 
 
 id., in courts not of record, 87-89. 
 
 in special proceedings generally, 90-91. 
 
 in surrogates' courts, 92-113. 
 
 under State writs, 1 14-124. 
 
INDEX. 167 
 
 PROCEDTJKE— Continued. 
 
 in proceedings instituted without State writ, 125-131. 
 
 in various particular actions, 132-155. 
 PROCEEDINGS TO RECOVER LAND, SUMMARY, 
 
 125-126. 
 PROCEEDINGS UNDER STATE WRIT. 
 
 See State Writs. 
 PROCEEDINGS WITHOUT STATE WRIT, 125-131. 
 PROHIBITION, WRIT OF, 120-121. 
 
 Sec, also, State Writs. 
 PROVISIONAL REMEDIES, defined, 42. 
 
 enumerated, 42. 
 
 particular, considered, 42-51. 
 PUBLIC OFFICER, action upon bond of, 154. 
 RECEIVER, temporary, when appointed, 50. 
 REFERENCE, when ordered, 63. 
 
 powers of referee upon, 63. 
 
 form and effect of decision upon, 64. 
 
 in surrogate's court, 95. 
 
 upon disputed claim against an estate, 107. 
 REMITTITUR, defined, 85. 
 REPLEVIN, WRIT OF, 51-53. 
 
 contents of, 51. 
 
 when issued, 51. 
 
 what papers must show, 51-52. 
 
 security upon obtaining, 52. 
 
 how executed, 52. 
 
 custody of chattels taken under, 52-53. 
 REPLY, defined, 36. 
 
 when required by statute, 36. 
 
 when required by court, 36. 
 
 what may contain, 37. 
 
 effect of failure to serve, 37. 
 REPORTER, COURT, 16. 
 RESPONDENT, defined, 79- 
 RIGHTS, CIVIL, how enforced, 18-19. 
 SALES OF REAL PROPERTY UNDER JUDGMENT, 
 
 133- 
 what included in expenses of, 133. 
 
 how made, 133. 
 SECURITY FOR COSTS, 53-SS- 
 
 SEPARATION, ACTION FOR, when maintainable, 148- 
 149. 
 
l68 A HANDBOOK OF THE CODE. 
 
 SEPARATION, ACTION FOR— Continued. 
 
 special provisions regulating, 149. 
 SHERIFF, powers and duties of, 14-15. 
 SLANDER, ACTION FOR, by woman, 155. 
 SPECIAL PROCEEDINGS, defined, 18. 
 
 procedure in, 90-91. 
 
 Statute of Limitations applies to, 90. 
 
 instituted by State writ, 1 14-124. 
 
 instituted without State writ, 125-131. 
 
 See, also. State Writs and Proceedings without 
 State Writ. 
 STATE WRITS, 1 14-124. 
 
 defined, 114. 
 
 enumerated, 114. 
 
 allowance, by judge, 114. 
 
 title of proceeding under, 114. 
 
 when returnable, 115. 
 
 service of, 115. 
 
 habeas corpus, 115-118. 
 
 certiorari to review cause of detention, 115-117. 
 
 mandamus, 1 18-120. 
 
 prohibition, 120-121. 
 
 assessment of damages, 121-122. 
 
 certiorari to review determination, 122-124. 
 STATUTE OF LIMITATIONS, 20-23. 
 STATUTES, how proven, 58. 
 
 STAY OF PROCEEDINGS, how obtained on appeal, 80. 
 STENOGRAPHER, COURT, powers and duties of, 16. 
 SUBMISSION OF CONTROVERSY, 18. 
 SUBPCENA, of justice of peace, 88. 
 SUBPCENA DUCES TECUM, 58. 
 SUMMARY PROCEEDINGS to recover land, 125-126. 
 SUMMONS, character of, 27. 
 
 contents of, 27. 
 
 mistake in, how corrected, 27. 
 
 service of, 27-30. 
 
 in matrimonial actions, 27. 
 
 supplemental, 27. 
 
 substituted service of, against a resident, 29. 
 
 id., against a non-resident, 29. 
 
 effect of substituted service of, 30. 
 
 in court not of record, 87. 
 
INDEX. 169 
 
 SUM.MOiJS— Continued. 
 
 in matrimonial actions, inscription on, in certain cases, 
 143- 
 SUPERIOR CITY COURTS, 6. 
 SUPERIOR COURT OF BUFFALO, 6. 
 SUPERIOR COURT OF THE CITY OF NEW YORK, 6. 
 SUPPLEMENTARY PROCEEDINGS, 76-78. 
 
 defined, 76. 
 
 when judgment creditor may institute, 77. 
 
 order for examination in, 78. 
 
 when cannot be had, 78. 
 
 property which cannot be reached under, 78. 
 SUPREME COURT, jurisdiction and organization of, 5-6. 
 
 Appellate Divisions of, 5-6, 82-3. 
 
 Trial Divisions of, 5, 6. 
 
 Special Terms of, 6. 
 
 Trial Terms of, 6. 
 SURROGATES' COURTS, jurisdiction and organization of, 
 8, 92. 
 
 procedure in, 92-113. 
 
 citation in, 92. 
 
 costs in, 96. 
 
 appeals in, 96. 
 TAXPAYER, ACTION BY, 155. 
 TENDER, how made, 55. 
 
 effect of, 55. 
 TITLE, how tried by sheriff, 15. 
 TRIAL, fixing place of, 59-60. 
 
 how action brought to, 60-61. 
 
 mode of, 62-64. 
 
 mode of, in courts not of record, 88. 
 VENUE, how fixed, 59-60. 
 VERIFICATION OF PLEADINGS, defined, 37- 
 
 when required, 37. 
 
 by whom made, 38. 
 
 contents of, 38. 
 WILL, action to establish, when maintainable, 152. 
 
 action to determine validity, construction and effect 
 of, 152. 
 
 See Probate of Will. 
 WITNESSES, competency of, 65-67. 
 
 husband and wife as, 65-66. 
 
170 A HANDBOOK OF THE CODE. 
 
 WITNESSES— Continued. 
 
 privilege of clergymen, physicians and attorneys, 66-67. 
 
 evidence of, as to right in real property, proceeding to 
 perpetuate, 134. 
 WRONGS, CIVIL, how redressed or prevented, 18-19.