iiii 8i fig % ■ ■■■- •■•■' ■sooc i| '- ' ' f.... , -'rim^. U .Hi- . - ?«( v Zrt|nnl ICtbranj KFN5995 C Z9D6r iVerS " y Library A liifiiiiiniiiiiliiiiiifcM Code o' civil I Cornell University f Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022819415 A DIGEST OF THE New York Code of Civil Procedure. BEING A SYNOPSIS OF THE CHAPTERS OF THE CODE RELATING TO GENERAL PRACTICE, IN A CONCISE AND READABLE EORM. EDITED BY CHAS. W. DISBROW, LL. B. OF THE NEW TOBK BAB. Albany, N. T. : MATTHEW BENDER. 1901. Copyright, 1S96, BY CHA.S. W. DISBROW. Copyright, 1901, BY CHAS. W. DISBROW. PREFACE The first edition of this work met with a very favor- able reception by the law students of New York State. Many unsought testimonials have been received testify- ing to its value, both in explaining difficult passages of the Code to the student unfamiliar with the technical language of the law, and in bringing together in their proper order, and in a concise form, all sections relating to the same subject, but widely separated in the Code. A great deal of time and thought has been expended upon this work. It is needless to state that its value depends inversely upon its size. The aim has been, not to make a substitute for the Code, but to make a refer- ence book to go with the Code which will show at a glance all of the provisions relating to any subject. Chas. W. Disbeow. A DIGEST OF THE CODE OF CIVIL PROCEDURE. INTRODUCTION. The present New York Code of Civil Procedure was enacted by the Legislature of the State of New York in two parte. The first part, consisting of the first thirteen chapters, went into effect June 2, 1876 ; the remaining chapters went into effect May 6, 1880. The Code pro- vides, however, that it shall be construed as if all of its parts had been enacted simultaneously. The Judicial power of the State is vested by the Code in certain courts which will be enumerated and de- scribed in a subsequent chapter. The various proceedings which may be brought in a 5 6 Introduction. court for the adjustment of controversies are the fol- lowing : 1. An Action. 2. A Special Proceeding. 3. Arbitration. 4. Submission op Controversy to the Court. 5. Provisional Remedies, and Writ of Replevin. 6. State Writs. An Action is an ordinary prosecution, in a court of justice, by a party against another party, for the en- forcement or protection of a right, the redress or preven- tion of a wrong, or the punishment of a public offence (Sec. 3333). Actions are divided into civil and criminal (Sec. 3335). This Code deals only with civil actions. An action is begun when the Court acquires jurisdiction of the parties — of the plaintiff by voluntary submission; of the defendant by the service of process upon him. When the parties are all before the Court the plaintiff serves upon the defendant a copy of his complaint, con- taining a statement of his cause of action against him. The defendant must answer this complaint; or he may demur to it because it is not such a complaint as he ought to be compelled to answer. The defendant may set up a counter-action in his answer, called a counter- claim, to which the plaintiff must reply. These various Introduction. 7 papers, i. e., complaint, answer, demurrer and reply, are called the pleadings. Where a thing is alleged upon one side and denied upon the other it is said to be at issue. A trial of the issues thus presented by the pleadings is had before a Judge, Jury, or Referee, and upon the de- cision of the Judge, verdict of the Jury, or report of the Referee, a judgment is entered by the Clerk of the Court. An appeal from the judgment, or from any final order, may be taken to a higher Court. The final judg- ment may be enforced by contempt proceedings, or by execution. Contempt proceedings are proceedings instituted by affidavit and order, to imprison a person for disobeying an order of the Court. An execution is a writ directed to the Sheriff com- manding him to collect a certain sum of money from the defendant ; or to imprison him ; or to deliver certain real property, or some chattel of the defendant, to the plaintiff, according to the nature of the action. Where no property of the defendant can be found by the Sheriff, a discovery of his property may be had by examining the defendant on oath concerning his prop- erty by virtue of an order of the Court, obtained in sup- plementary proceedings, or in a judgment creditor's action. 8 Introduction. A Special Proceeding is every prosecution in a court of justice which is not an action (Sec. 3334). A special proceeding is begun by petition or order to show cause, and ends in a final order or decree. This mode of proceeding is used exclusively in the Surro- gate's Courts, and may be used in many cases in the other Courts. Aebitration is the voluntary submission to one or more arbitrators, by two or more persons, of any contro- versy existing between them which might be the subject of an action (Sec. 2366). Submission of a Contboveesy is the voluntary sub- mission of a statement of facts to the Court with a prayer for the appropriate judgment thereon. This method is resorted to where the parties agree as to the facts, but disagree as to the conclusion of law to be de- rived therefrom. Peovisional Remedies are proceedings commenced concurrently with an action for the purpose of prevent- ing a dishonest defendant from absconding or from dis- posing of his property, or from wantonly injuring the same, before a judgment can be obtained in an action. These remedies are: 1. An Order of Arrest, directing that the party be im- Introduction. 9 prisoned pending the suit, unless bail be given for his appearance. 2. A Warrant of Attachment, directing that the prop- erty of the defendant be seized and held, pending the outcome of the suit. 3. An Injunction Order, directing the defendant to refrain from doing some act in relation to the property in suit. 4. The Appointment of a Receiver, to take care of the property in dispute pending the suit. A Writ of Replevin is practically a provisional rem- edy. An action to recover some chattel is begun in the regular way, but pending the suit a requisition is given to the Sheriff requiring him to seize the chattel in the possession of the defendant, which is alleged to belong to the plaintiff. The chattel, or an undertaking given in its place, is then held until the outcome of the suit. State Writs are commands issuing from the State, under the seal of the Court, directed to some person, body, court or officer, commanding immediate obedience to the directions contained in the writs. There are seven State Writs. 1. Habeas Corpus to bring up a prisoner to testify or answer. 2. Habeas Corpus to bring up a person held as a pris- oner and inquire into the cause of his detention. 10 Intboductioit. 3. Certiorari, to inquire into the cause of detention of a person. 4. Certiorari, to review the determination of some tri- bunal. 5. Mandamus, to require an act to be done. 6. Prohibition, to prevent the commission of an act. 7. Assessment of Damages, to ascertain the amount of damages suffered by a person from whom land is taken by right of Eminent Domain. COURTS. 11 CHAPTER I. COURTS. The Judicial power of the State is vested in the fol- lowing Courts, viz. : 1. Courts of Justices of the Peace in each town. 2. County Courts in each county except New York County. 3. Surrogates' Courts in each county. 4. The Supreme Court. 5. The Appellate Division of the Supreme Court in each department. 6. Court of Appeals. There are other courts enumerated, but they are either criminal tribunals or are of only local interest. Among these latter are the 7. District Courts in the City of New York, and 8. The City Court of the City of New York (Sees. 2-3). All the above named courts are termed Courts of Record, except Justices' and District Courts. A Couet of a Justice of the Peace is the lowest court in the State. 12 Couets. It is composed of one Justice who holds within his city or town a court for the trial of any action brought before him of which he has jurisdiction. As far as his jurisdiction goes, he is vested with all the necessary powers possessed by a Justice of the Supreme Court (Sec. 2868). His jurisdiction extends to cases involving not more than $200, (Sec. 2862), and involving only certain causes of action i. e. ; (1) Breach of contract, other than marriage contract ; (2) Personal injury; (3) Fine or penalty; (4) Upon a bond; (5) Upon a judgment rendered in a Justice's Court; (6) Eeplevin (Sec. 2862). It has no jurisdiction where the cause of action in- volves: ■ ; i ! ": ; ! ;■'! ?/j].| (1) The people of the State as a party, except for i fine; (2) The title to real estate; (3) A personal tort, as assault, etc. ; (4) An account where the aggregate of both sides of the account amount to more than $400; (5) Certain actions affecting estate of a decedent. The parties to the action, or one of them, must reside within the city or town of the justice, or within an ad- joining town (Sec. 2869). The proceedings in these courts are somewhat differ- ent from the proceedings in the higher courts, but for those who wish to pursue this topic, the provisions of the Code are very concise and it is unnecessary to stats Courts. 13 them here. See Sees. 2861 to 2893, 2934 to 3115, 3134 to 3158. An order of arrest (Sec. 2894), a warrant of attach- ment (Sec. 2905), or action of replevin (Sec. 2919), can be had in these eoiirts, but only in cases involving not more than $200. Special provisions of the Code govern the Justices' Courts in the City of Brooklyn (Sees. 3116 to 3133). In New York County there are no Justices' Courts; their place is taken by the District Courts. A County Court is a court one step higher than a Justices' Court. One of these courts is situated in each county of the State except New York County. It is composed of one Judge, who sits with or without a jury, and who must hold at least two terms for the transaction of business in each year (Sec. 355). Its jurisdiction extends to (1) actions affecting real estate situated within the county, as partition, dower, foreclosure, specific performance. (2) Action to fore-- close lien on chattel where chattel is within county and value does not exceed $1,000. (3) Action in favor of representative of judgment creditor to recover money due on a judgment rendered in same court. (4) For sum of money not exceeding $2,000, where parties to action, or one of them, is a resident of the county. (5) To replevin chattels of value not exceeding $1,000. 14 Couets. (6) To custody of person and care of property of in- competents, being residents of the county. (7) Pro- ceeding for sale of real property of religious corpora- tion. (Sec. 340.) In counties having a population of less than 40,000, it exercises also the powers of a Surrogate. It has also general criminal jurisdiction (See Cr. Code, Sees. 11- 39). Appeals from its decisions go to the Appellate Divi- sion of the Supreme Court. Where it has jurisdiction its powers are co-extensive with the Supreme Court (Sec. 348), and a County Judge has the same power out of court in regard to mat- ters before him, as has a Justice of the Supreme Court in a like case (Sec. 349). The practice and proceedings of this court are the same as in the other Courts of Record. In New York County the place of the County Court was taken by the Court of Common Pleas and by the City Court; the one having a greater, the other a less jurisdiction than a County Court. Upon the abolishment of the Court of Common Pleas, on January 1, 1896, much of the work fell upon the City Court, but no provision was made for enlarging that court's jurisdiction. CODBTS. 15 A Surrogate's Court is situated in each county. It is composed of one Judge, called a Surrogate. Where the county contains a population of less than 40,000, the County Judge acts as Surrogate. Its jurisdiction extends to all matters affecting the estate of a decedent, from the probate of a will or the granting of administration, to the final accounting of the executors or administrators and the distribution of the estate. All appeals from its decisions go to the Appellate Division of the Supreme Court. The practice and proceedings of this court are en- tirely different from the practice of the other Courts of Record, in that all matters are transacted by means of special proceedings. The Supreme Court is the highest court of original jurisdiction in the State. It is composed of seventy-six Justices, whose powers extend throughout the State (Sec. 235). Its business is carried on by means of: (1) Special Terms, (2) Trial Terms and (3) Appellate Divisions- Its jurisdiction extends to all cases in law and equity, and includes all the jurisdiction which was possessed and exercised by (1) The Supreme Court of the Colony of 1ST. Y. at any time, and by 16 Courts. (2) The Court, of Chancery in England on July 4, 1776, with the exception, additions and limitations cre- ated and imposed by the Constitution and laws of the State (Sec. 217). It has both civil and criminal jurisdiction. It has power to draw to itself actions pending in other courts (Sees. 218, 343). In the County of New York it hears appeals from the District Courts and from the City Court of the City of New York. Three Justices are designated to hold an Appellate Term of the court for this purpose. It has also general appellate powers which are exercised by its Appellate Divisions. This division hears appeals from the Justices' Courts, County Courts and Special and Trial Terms of the Supreme Courts. The special and trial terms are held at such times and by such Justices as the Justices composing the Appellate Divi- sion shall designate (Sec. 232). In the County of New York eight special terms and eleven trial terms have been thus established. A special term is held by one Justice sitting without a jury, for the trial of equity actions, issues at law, the hearing of litigated motions, and of many special pro- ceedings. A trial term is held by a Justice sitting with a jury, for the trial of common law actions. Any order or judgment made at a special or trial term may be appealed to the Appellate Division of this OOTJETS. 17 court in that Judicial Department embracing the county in which the term was held (Sec. 1355). An Appellate Division of the Supreme Court is composed of certain Justices designated by the Governor from among all the Justices elected to the Supreme Court. The term of office is five years. The State is divided into four Judicial Departments, each department consisting of one or more counties. There is one Appellate Division in each department. They are held in the following cities : New York City, Brooklyn, Albany and Rochester. The first department consists of the County of New York, and is composed of seven Justices. The second, third and fourth departments take in the rest of the State, and are composed of five Justices each. Four Justices constitute a quorum to do business, and the concurrence of three Justices is. necessary to a de- cision. If they do not concur a reargument is ordered in another department (Sees. 230-231). This court has no original jurisdiction; its jurisdic- tion is that which was formerly exercised by the Gen- eral Terms of the Supreme Courts and of the Superior City Courts. These courts ceased to exist January 1, 1896. It has also such further jurisdiction as the Legislature may confer upon it. It hears appeals from the Special and Trial Terms of the Supreme Court, 18 Couets. and from the Surrogates' County and Justices' Courts (Sees. 219-220). The Court of Appeals is the highest court of appel- late jurisdiction in the State. It is composed of seven Judges, five of whom must sit together to make a quorum to do business, and four must concur to render a decision. It has appellate jurisdiction only, and is limited to the review of questions of law (Sec. 191) ; except where the judgment appealed from is that of death. It hears appeals from the determinations of the Appellate Di- visions of the Supreme Court only (see Appeals). Its decisions are remitted to the court below for en- forcement (Sec. 194). From its decisions there can be no appeal, except in certain cases to the United States Supreme Court. This court has power to make rules regulating the admission of attorneys and counsellors at law to practice in all the courts of record in the State (Sec. 193). The decisions of the court are reported by a State Reporter appointed by the court (Sec. 209). The District Courts in the City of New York take the place of the Justices' Courts for that city. These courts are each composed of one Justice, who holds a court in the district assigned to him. For this Courts. 19 purpose the City of New York is divided into eleven districts. Its jurisdiction is slightly larger than that of a court of a Justice of the Peace; it extends to cases involving not more than $250 (Sec. 3215). Provision is made for removing a case involving a greater sum than $100 to the City Court of the City of New York, by giving security for the payment of any adverse judgment which may be rendered in that court (Sec. 3216). The practice of this court is found in the Consolida- tion Act and amendments thereto and the charter of the City of Greater New York. The practice is about the same as the practice in the Justices' Courts. The City Court of the City of New York, for- merly known as the Marine Court, then as the City Court of New York, is composed of six Justices, one of whom is the Chief Justice ( Sec. 320) . The Court holds one special term, four trial terms, and one general term. A special term is held by one judge, a trial term by a judge and jury, and a general term by three judges sit- ting together. The general term meets but once a month. It hears appeals from the special and trial terms. Appeals may be taken from the general term to the Appellate Term of the Supreme Court (not the Appellate Division, but to three justices of the Supreme 20 Couets. Court in the first department designated to hear appeals from this court and from District Courts). The Code contains many special provisions applicable to this court (Sees. 315-339, 3159-3195). A Coubt of Recoed Has Powee: (1) to compel the attendance of witnesses, by subpoena; (2) to administer oaths to witnesses; (3) to devise and make new process and forms for pro- ceeding necessary to carry into effect the powers and jurisdiction possessed by it (Sec. 7) ; (4) to punish for a criminal contempt (Sec. 8) by fine of $250, or less, or by imprisonment for thirty days (Sec. 9) ; (5) to punish by fines and imprisonment for neglect or violation of duty, by an attorney, clerk, Sheriff or Coroner (Sec. 14), or any person for putting in fictitious bail, or for refusing to obey a man- date or order of the Court. Any party to an action may appear in court, and prosecute or defend his own case in person (Sec. 55), but cannot appear on behalf of another person unless he is regularly admitted to practice as an attorney and counsellor at law. The sittings of all courts are public (Sec. 5). They are not open on Sundays except to receive a verdict. A Courts. 21 magistrate, however, may exercise his jurisdiction on Sunday where necessary to preserve the peace. The Chief Officer of the Court is the Sheriff. In each county there is one sheriff who is the conserva- tor of the peace therein. He has power to call upon all male citizens (Sees. 104, 106), to help him in keeping the peace, and if this is not sufficient he may apply \o the Governor of the State, who may then order out the militia (Sec. 107). He is the keeper of the jails, and is responsible for the safety of all prisoners. He must execute all mandates issuing from the courts and directed to him, according to the command therein contained (Sec. 102). He must summon jurors for the court. He must form a jury of twelve men, known as a Sheriff jury, to try the title to property seized by him, by direction of any mandate of the Court, when this property is ad- versely claimed by a third party (Sec. 108). 22 Statute of Limitations. OHAPTEK II. STATUTE OF LIMITATIONS. The time within which an action can be brought has been limited by law. The time of the courts cannot be wasted over stale claims, nor shall a party be compelled to search for the evidence of a transaction after a great elapse of time. The Court has no power to extend the time (Sec. 784) . The only action not so limited is one upon a bill or note of a monied corporation, or issued or put in cir- culation as money (Sec. 393). An action affecting real estate when the State, or one claiming under it, is plaintiff must be brought within forty years after the accruing of the cause therefor (Sec. 362). When a private person is plaintiff the action must be brought within twenty years (Sec. 365). A person can thus acquire a title to real property by the adverse holding of the same for twenty years, as the courts will then refuse to help the true owner to regain bis possession, and even an actual entry by him upon the property would not be sufficient to revest the title (Sec. 367). Statute of Limitations. 23 To hold by adverse possession there must be an. open, continuous, notorious and actual occupation and posses- sion of the premises (Sec. 371). It is deemed an actual occupation and possession: (1) Where the premises have been protected by a sub- stantial enclosure. (2) Where they have been usually cultivated or im- proved. Where possession is taken by a party under the be* lief that he possesses a good title thereto, but the title afterwards proves defective, and the party nevertheless continues to hold the premises, it is known as holding under "color of title." In this case the premises are deemed to be occupied and possessed: (1) Where it has been enclosed, as above. (2) Where it has been cultivated, as above. (3) Where, although not enclosed, they have been used for the supply of fuel or fencing timber. (4) Where part of a known farm has been duly occu- pied (Sees. 369, 370). This limited time during which the action must be commenced does not begin to run, however, while the true owner is incapable of bringing a suit at law for the recovery of the possession. If he is, when the right to maintain the action accrues (Sec. 408) (1) within the age of twenty-one years; (2) insane; or (3) impris- oned upon a criminal charge for a term less than for 24 Statute of Limitations. life, the time of such disability, or either of them, is not a part of the time limited, except that such time can- not be extended more than ten years after the disability ceases (Sec. 375) (i. e., siich person is entitled either (1) to twenty years after the accruing of the cause of action; or (2) to the full length of his disability and ten years in addition thereto, whichever term is the longest). An action must be brought within twenty years when it is founded upon: (1) A judgment of a court of record (Sec. 376). (2) A sealed instrument (Sec. 381), or is brought (3) To redeem from a mortgage (Sec. 379). Within ten years : (1) Equity actions (Sec. 388). Within six years: (1) Upon a contract, obligation or liability, except a sealed instrument. (2) Upon a liability created by statute. (3) To recover for an injury to person or property, ex- cept a penalty or a forfeiture. (4) To recover a chattel. (5) Upon a judgment of a court not of record. (6) To recover a judgment, other than for a sum of money, on the ground of fraud in certain cases (Sec. 382). (7) To establish a will. Statute of Limitations. 25 Within three years: (1) Against a Sheriff for non-payment of money col- lected. (2) Against a constable for omission of official duty, except an escape. (3) For a penalty or forfeiture to a private person. (4) Against an executor, administrator, &c, for injury to property caused by decedent. (5) Upon a personal injury caused by negligence. (6) Against a director or stockholder of a moneyed cor- poration to recover a penalty or forfeiture or to enforce a statutory liability (Sec. 394). Within two years: (1) For damages for libel, slander, assault, battery or false imprisonment, seduction, criminal conver- sation, malicious prosecution or malpractice. (2) Upon a statute for a penalty or forfeiture to the people or to a private person, where such person neglects to sue for it (Sec. 387). Within one year: (1) Against a Sheriff for an omission of duty in his official capacity. (2) Against any officer for an escape of a civil prisoner. (3) For a penalty or forfeiture to a private person. If such person neglects to sue within one year, the Attorney-General may sue within two years (Sec. 387). 26 Statute of Limitations. It is a question of great importance to know when the time commences to run ; and when, if at all, it ceases to run; and in what cases, if any, the time is extended. The following provisions have been made : (1) The time of computing the periods of limitation must be from the time of the accruing of the right to relief by action, except as hereinafter stated (Sec. 415). (2) Where there has been a mutual, open and current account, where there have been reciprocal demands be- tween the parties, the cause of action is deemed to have accrued from the time of the last item proved in the account on either side (Sec. 386). (3) Where an injury results from the act of an agent, the time within which the principal may bring an action against the agent commences from the time of the re- covery of a judgment against the principal for such damages caused by the agent (Sec. 407). (4) Where a demand is necessary to entitle a person to maintain an action, the time begins to run as soon as the right to make the demand is complete (Sec. 410). (5) W nere a P ar ty against whom a cause of action arises has departed from the State before the right ac- crues, the time begins to run from the time of his return (Sec. 401). , ■ ' . , (6) An action by a non-resident against a non-resi- dent, not affecting real property situated within the State, can be brought only within the time allowed for Statute of Limitations. 27 such action by the laws of the residence of the defend- ant (Sec. 390). An action may be brought by a resident against such non-resident, however, (1) if the cause originally ac- crued in the favor of the resident; or (2) if it was assigned to him, and the assignment has been made within the time limited for the bringing of such an action by the laws of the residence of the defendant (Sec. 390). Where the party entitled to maintain an action not affecting real estate is disabled, as aforesaid, when the right to maintain the same accrued, the time of such disability is not part of the time so limited, except that the time cannot be extended more than five years by any such disability (except infancy), nor in any case more than one year after such disability ceases. This does not apply, however, to actions for a penalty or a forfeiture, or against the Sheriff for an escape (Sec. 396). After the time has commenced to run it does not cease to run, except in the following cases, and then only dur- ing the time of such disability : (1) Where the commencement of the action has been stayed by the Court (Sec. 406). (2) Where the parties, within the time limited, have stipulated to submit the matter to arbitration and the submission has afterwards been revoked (Sec. 411). (3) Where the cause of action has been interposed as 28 Statute of Limitations. a counterclaim against the same defendant in some other action and that action has been discontinued without a final decision on the merits (Sec. 412). (4) When the defendant has departed from the State and resided continuously out of the State for one year, or is within the State under a false name, and unknown to the plaintiff (Sec. 401). (5) Where either party is an alien, subject to a coun- try at war with the United States (Sec. 404). (6) Where the defendant dies, (a) If he dies with- out the State, the time does not run from the time of such death until eighteen months after letters of admin- istration upon his estate have been issued within the State (Sec. 391). (b) If he dies within the State the time does not run during a period of eighteen months after his death (Sec. 403). The time within which an action may be maintained may be extended in the following cases : (1) Where the action is regularly commenced, but afterwards abates under conditions not prohibiting the bringing of a new action. Such new action may be brought within one year notwithstanding the expiration of the limited time (Sec. 405). (2) Where the person entitled to maintain such an action dies before the expiration of the time limited for the commencement of the action, and the cause of action survives, an action may be commenced by his representa- Statute of Limitations. 29 tives after the expiration of that time and within one year after his death (Sec. 402). (3) Where the defendant dies within the State, and letters testamentary or of administration are not issued upon his estate until some time during the six months immediately preceding the expiration of the limited time, such time is extended one year (Sec. 403). 30 Pbooeedings in an Action. CHAPTEK III. PROCEEDINGS IN AN ACTION. Article I. Summons. II. Parties. III. Pleadings. IV. Trial. V. Evidence. VI. Judgment. VII. Appeal. VIII. Execution. Article I. SUMMONS. A civil action is commenced when the Court acquires jurisdiction of the defendant, either by his voluntary appearance or by the service of a summons upon him (Sees. 424, 416). A summons contains (1) the title of the action; (2) the name of the Court; (3) the names of the parties; (4) the signature of plaintiff's attorney; (5) the ad- dress of plaintiff's attorney. Pkoceedings in an Action. 31 For form of summons see Sec. 418. In matrimonial actions the nature of the action must be legibly written on the summons (Sec. 1774). A summons is served upon a defendant in one of three ways: (1) Personally; (2) by an order of the Court; (3) by publication. Personal Seevice. The summons is served personally by handing the same to and leaving it with the defendant in person, within the State, by any person other than a party to the action (Sec. 425). If the defendant is an infant, under fourteen years of age, service must be made upon the infant, and also upon the father, mother or guardian. If neither the father, mother, nor guardian is within the State service must be made upon one having the care and control of the infant, or upon one with whom he resides, or upon his employer (Sec. 426). If the defendant has been judicially declared incom- petent to manage his affairs, service must be made upon the defendant and also upon his committee (Sec. 426). If the defendant is a Sheriff, and the action is for an escape, service may be made upon the defendant or upon the under Sheriff, or the summons may be left at the office of the Sheriff during business hours (Sec. 426). If the defendant is a domestic corporation service 32 Proceedings in an Action. may be made upon its (1) president, (2) secretary, (3) cashier, (4) treasurer, (5) director or (6) managing agent (Sec. 431). If the defendant is a foreign corporation service may be made upon its (1) president, (2) secretary, (3) treas- urer, or officer having corresponding functions, or (4) a person designated to receive such service, by an instru- ment filed with the Secretary of State. If the cause of action arose within the State, or if property of the de- fendant is here, service may also be made upon its (5) cashier, (6) director, (7) managing agent (Sec. 432). If the defendant is the City of New York service may be made upon the (1) Mayor, (2) Comptroller or (3) Counsel to the Corporation. If any other city is the defendant service may be made upon its (1) Mayor, (2) Counsel, (3) clerk or offi- cer having corresponding functions (Sec. 431). Seevice by Obdee. An order may be obtained from the Court permitting service to be made upon a defendant residing within the State, by (1) leaving a copy of the summons and of the said order at the residence of the defendant with a per- son of suitable age and discretion ; or, if admittance can- not be gained to the house, by affixing the same to the outer door of such residence, and (2) mailing a copy of Proceedings in an Action. 33 the same to him. Before this order will be granted it must appear by affidavit or by a Sheriff's certificate, to the satisfaction of the judge that (1) the defendant can- not be found after diligent effort and his place of so- journ cannot be ascertained, or (2) that the defendant avoids service of the siimmons (Sec. 435). If no resi- dence can be found, then as Court directs (Sec. 436). Such service must be made within ten days after ob- taining the order therefor (Sec. 437). Service by Publication. An order may be obtained from the Court directing service of a su mm ons upon a defendant by (1) pub- lishing the summons in two newspapers, designated in the order, once a week for six successive weeks, or at the option of the plaintiff, by service of the summons and a copy of the complaint and order without the State, upon the defendant personally in the proper manner (Sec. 440) ; and (2) mailing the summons, complaint and order to the defendant at his last known place of resi- dence (Sec. 440). This order will be granted upon submitting to the Court a verified complaint show- ing a sufficient cause of action against the defendant, and affidavits showing that the defendant cannot be personally served within the State, and that either (1) the defendant is a foreign corporation; or is (2) a non- resident; or is (3) a resident who has left the State with 34 Proceedings in an Action. intent to defraud his creditors; or (4) to avoid service of a summons ; or (5) if within the State he keeps him- self concealed with like intent; or (6) that he has been continually without the United States for a period of six months, and has not made a designation of a person to receive such service for him; or (7) is unknown to plaintiff, or (8) whether or not he is a resident of the State is unknown to plaintiff; or (9) that the complaint demands judgment annulling a marriage, or for a di- vorce or separation; or (10) that the defendant be ex- cluded from a vested or contingent interest in or lien upon specific real or personal property within the State, or otherwise affecting the title to such property; or (11) that the defendant is a resident, or a domestic cor- poration, that service of a summons has been attempted, and that the statute of limitations would have run with- in 60 days next preceding the application for the order if the time had not been extended by the attempt to commence the action (Sec. 438) ; (12) that the action is against the stockholders of a corporation and is au- thorized by the State, and the defendant is a stockholder thereof (Sec. 438). Proceedings in an Action. 35 Article II. PARTIES. The parties to a civil action are: (1) As party plaintiff; (a) one who has an interest in the subject of the action and (b) has an interest in obtaining the judgment demanded (Sec. 446). (2) As party defendant ; (a) one claiming adversely to the plaintiff or (b) one necessary for the com- plete determination of the question (Sec. 447). The real party in interest prosecutes the action, ex- cept that (a) an executor or administrator or (b) a trus- tee of an express trust or (c) one expressly authorized by statute may sue without joining with him the person for whose benefit the action is prosecuted (Sec. 449). An unknown defendant may be sued under a fictitious name, but a description must be added, identifying the person intended (Sec. 451). An infant may bring an action in his own name, but he must have a guardian appointed who will be responsi- ble for the costs of the action (Sec. 469). An infant may defend an action through a guardian ad litem ap- pointed by the Court to protect his interests ( Sees. 471, 472). A married woman sues and is sued as if single (Sec. 450). 36 Proceedings in an Action. A poor person may sue as plaintiff or defendant with- out being liable for the costs or fees of the action upon obtaining an order from the Court to that effect. In his petition for this order he must allege that he is not Avorth one hundred dollars, and that he has a good cause of action (Sec. 458). Parties united in interest are joined as plaintiffs or defendants. If one united in interest with the plaintiff objects to being made a party plaintiff, he may be made a party defendant, the reason thereof being stated in the complaint. Where a question is (1) of general interest to many persons, or (2) the parties to the action are numerous one party may sue or defend for the benefit of all (See. 448). All persons who are liable on a written or negotiable instrument may be sued in one action (Sec. 454). Parties necessarily joined as defendants, but against whom no personad claim is made may be served with a notice to that effect at the time of serving the summons (Sec. 423). One defendant joined with another may have the same relief as if sued alone (Sec. 455). When jurisdiction is obtained by service of a sum- mons upon some of the defendants, but not upon all of them, the plaintiff may proceed against those served, as if they were the only defendants in the action (Sec. 456). Proceedings in an Action. 37 Where the summons is served upon all of the defend- ants, ihe plaintiff may take judgment against one or more of them where he would be entitled to judgment if the action was against him or them alone. Where judgment is so taken the action may be severed, by order, and the plaintiff may proceed against the other defend- ants (Sec. 456). New parties to the action are brought in by amend- ment and supplemental summons (Sec. 453). Article III. PLEADINGS. The defendant having been brought within the juris- diction of the court, must within twenty days, appear and demand service of a copy of the complaint (contain- ing the plaintiff's cause of action against him), or if he fails so to do, judgment will be granted to the plaintiff by default (Sec. 421). The complaint must be served within twenty days after this demand. In general practice the complaint is served with the summons ( Sec. 419). The defendant must then both appear and an- swei the complaint within the twenty days (Sec. 422). The Complaint Contains : (1) The title of the action. (2) The name of the court, specifying the county. 38 Proceedings in an Action. (3) The names of all parties. (4) A plain and concise statement of the facts consti- tuting each cause of action without unnecessary repetition. (5) A demand for the appropriate judgment (Sees. 482, 478, 485). Two or more causes of action may be united in one complaint, whether legal or equitable, when the facts constituting each cause are properly separated and num- bered, and when both causes appear from the face of the complaint: (1) To be consistent with each other. (2) To affect all the parties to the action. (3) To require the same place of trial, and (4) To both belong to one of the following subdivisions, i. e.: An action brought to recover: (a) Upon a contract, express or implied. Cb) For personal injuries, except libel, slander, crim- inal conversation or seduction. (c) For libel or slander, or both. (d) For injury to real property. (e) Real property in ejectment, with or without dam- ages for withholding the property. (/) Injuries to personal property. (g) Chattels, with or without damages. Prooeedigns in an Action. 39 (h) Against trustee by virtue of a contract or by opera- tion of law. (i) Claims arising out of same transaction, or (j) Transactions connected with the same subject mat- ter and not included in above. (h) For penalties under fisheries, game and forest laws (Sec. 484). Upon receiving the complaint the defendant must, within 20 days, either (1) demur to the complaint, or (2) answer the complaint (Sec. 487). A Demurrer to the Complaint may be interposed if it appears from the face thereof that : (1) The court has no jurisdiction over the defendant or over the subject matter. (2) Plaintiff has not legal capacity to sue. (3) There is a misjoinder of parties plaintiff. (4) There is a defect of parties, plaintiff or defendant. (5) Two or more causes of action are improperly united. (6) It does not state facts sufficient to constitute a cause of action. (7) That another action is pending between the same parties for the same cause of action (Sec. 488). A demurrer cannot be taken on the ground that the 40 Proceedings in an Action. claim is barred by the Statute of Limitations (Sec. 413). The method of demurring is to serve upon the plain- tiff's attorney a written notice that defendant demurs to the complaint, stating the ground upon which the de- murrer is taken (Sec. 488). A demurrer raises an issue of law only, leaving the facts alleged in the complaint to be considered as true. This issue of law is brought on for argument before a judge at a special term of the Court, and judgment is rendered either (1) sustaining the demurrer, and dis- missing the complaint or permitting it to be amended, or (2) overruling the demurrer, and granting judgment to the plaintiff or permitting the defendant to plead anew (Sec. 497). An Answer to the Complaint contains: (1) A denial, general or specific, (ft) of each material allegation of the complaint controverted by the defendant, or (b) of any knowledge or information sufficient to form a belief as to the same. (2) iSTew matter, by way of confession and avoidance, in ordinary and concise language without repe- tition (Sec. 500). (3) ISTew matter by way of a counterclaim. This new matter must tend to diminish or defeat the de- Proceedings in an Action. 41 fendant's recovery; it must arise between a de- fendant or one or more defendants and a plain- tiff, or a plaintiff's representative, between whom a separate judgment might be had in the action; and it must arise out of the same transaction or out of independent contracts (Sec. 501). ~No cause of action pan be interposed as a counter- claim except such as are enumerated in the chapter of the Code relating to limitations, being Sections 376 to 397 ; see Sec. 397. All new matter contained in the answer is deemed to be denied without further pleadings (Sec. 522), unless it is new matter by way of a counterclaim. To a coun- terclaim plaintiff must either (1) demur or (2) reply. If plaintiff fails so to do judgment on the counterclaim will be rendered to the defendant (Sec. 515). A Demurrer to the Counterclaim may be inter- posed where it appears from the face thereof that: (1) The Court has no jurisdiction of the subject matter. (2) Another action is pending between the same parties for the same cause. (3) Defendant has not legal capacity to sue. (4) The counterclaim is not of the character specified in Section 501 (see above). (5) It does not state facts sufficient to constitute a cause of action (Sec. 495). 42 Proceedings in an Action. A Reply to a Counterclaim contains: (1) A denial, general or specific, of (a) each, material allegation of the counterclaim controverted by the plaintiff, or (b) any knowledge or informa- tion thereof sufficient to form a belief as to such matters. (2) New matter by way of defense, not inconsistent with the complaint. The defendant may demur to the reply on the ground that it is insufficient in law upon the face thereof (Sec. 493). All new matter set up in a reply is deemed to be de- nied without further pleading (Sec. 522). There can be no further pleading, and the case is now ready for trial (Sec. 964). Miscellaneous Matters of Pleading and Prac- tice. An Order is a written direction of a Court or Judge made in an action or special proceeding, and not con- tained in a judgment (Sec. 767). A Motion is an application for an order (Sec. 768). A motion made in an action in the Supreme Court must be made within the judicial district in which the action is triable, or in a county adjoining that in which it is triable ; except that where it is triable in the first judicial district the motion must be made there, and a Pboceedings in an Action. 43 motion cannot be made in that district in an action tri- able elsewhere (Sec. 769). A Verification is an affidavit that the pleading ia "true to the knowledge of the deponent except as to the matters therein stated to be alleged on information and belief and as to those matters he believes it to be true" (Sec. 526). Where a pleading is verified, each subsequent plead- ing must be verified except (1) a demurrer, (2) a gen- eral answer of a guardian ad litem, (3) privileged mat- ter (Sec. 523). A verification must be made by (1) the party; or (2) one of the parties, who is acquainted with the facts; or (3) if the party is a domestic corporation, by an officer thereof; or (4) if the party is New York State, or a public officer, by any one acquainted with the facts ; or (5) by the attorney or agent, when the party is (a) a foreign corporation; or (i) is not within the county where the attorney resides or has his office; or (c) where the action or defense is founded upon a written instru- ment for the payment of money only, which instrument is in the possession of the attorney or agent; or (d) where all the material allegations are within the knowl- edge of the attorney or agent (Sec. 525). If a pleading is not properly verified, where the com- plaint has been verified, it may be treated as a nullity, 44 Peoceedings in an Action. providing the adverse party is so notified with due dili- gence (Sec. 528). If a complaint is not verified the answer need not be verified, hut an affidavit of merits, sworn to by the de- fendant, must be served upon the plaintiff or his at- torney. A defendant may verify his counterclaim when he also sets up new matter by way of confession and avoid- ance, and the reply thereto must be verified (Sec. 527). Pleadings must be liberally construed (Sec. 519). Each pleading must be subscribed by the attorney (Sec. 520). Each pleading may be amended once as of right, within twenty days of its service upon the adverse party, or before the time to answer it has expired. The amended pleading must be answered as if it was an original pleading (Sec. 542). A supplemental complaint, answer or reply, alleging material facts occurring after service of the former pleading, or of which he was ignorant at the time, may be made and served if the Court so allows (Sec. 544). A private statute is pleaded by stating (1) the chap- ter, title and year or (2) by other sufficient description (Sec. 530). An account is pleaded by stating the amount due. The defendant may demand a Bill of Particulars of the items constituting the account. This must be served Pboceedings in an Action. 45 within ten days after demand (Sec. 531) or an order may be obtained preventing the plaintiff from giving evidence upon the trial of any of the items of the ac- count. A judgment is pleaded by stating it "to have been duly given or made." A defendant may specifically deny this, and it must then be proved upon the trial (Sec. 532). A condition precedent is pleaded by alleging that the party has "duly performed all the conditions on his part." If defendant controverts this, it must be proved upon the trial (Sec. 533). A written instrument for the payment of money only, may be pleaded by setting forth the instrument at length, stating what is due thereon, and making a claim for that amount (Sec. 534). In an action for libel or slander, plead "that it was published or spoken concerning him" (Sec. 535). Under a plea of "justification" of libel or slander, defendant may prove mitigating circumstances (Sec. 535). A defendant may plead facts in mitigation of dama- ges, with or without other defense in an action for (1) Breach of promise to marry; (2) Tort to person; (3) Tort to property. He may still prove such facts upon an inquest, taken because of his failure to plead (Sec. 536). 46 Peooeedings in an Action. A frivolous pleading is one bad in law. A sham pleading is one false in fact. Either may be stricken out upon application to Court upon five days' notice to the adverse party (Sees. 537, 538). Irrelevant, redundant or scandalous matter may be stricken out by the Court upon motion (Sec. 545). A variance is a difference between the allegations of the pleading and the testimony of the witnesses at the trial ; but unless it actually misleads the adverse party it is not material, and the pleading may be amended (Sees. 539, 540). A Failure of Proof is, a lack of sufficient evidence to back up the allegations of the pleading, and is fatal to the case (Sec. 541). Where a pleading is indefinite, it may be stricken out unless made certain (Sec. 546). Where a party wants to impeach the certificate of a notary public as to the protest of a note, he must serve an original affidavit to that effect with his pleading, or within ten days after joining issue (See. 923). When the judgment may determine the ultimate rights of two or more defendants as between themselves, and either of such defendants wants such a determina- tion, he must demand it in his answer, and serve his answer upon the other defendants, and upon the plain- tiff, twenty days before trial (Sec. 521). Pboceedings in an Action. 47 See also Sees. 721 to 788 for miscellaneous regular tions. In an action by or against a corporation the complaint must state whether the corporation is domestic or for- eign, and, if the latter, the State, County or Government by or under whose laws it was created (Sec. 1775). Plaintiff need not prove the incorporation upon the trial unless it is specifically put in issue by a verified answer (Sec. 1776). A corporation must plead to a misnomer of its cor- porate name in its first pleading, or not at all (Sec. 1777). In an action against a corporation, foreign or domes- tic, upon a promissory note or other evidence of debt, the corporation must serve with its answer an order of a Judge directing that the issues be tried. If this order be not served judgment, as upon a default, may be entered. Article IV. TEIAX. An action is brought on for trial by serving upon the adverse party a notice that the case will be reached for trial at a certain time and place. This notice must be served after the joinder of issue and fourteen days be- 48 Proceedings on an Action. fore the commencement of the term of the Court (Sec. 911). A note of issue must be filed with the Clerk of the Court at least twelve days before the term. This must contain (1) the title of the action; (2) the names of all the attorneys in the case; (3) the date of issue (*. e., time of service of last pleading) ; (4) the nature of issue (i. e., whether of fact or of law, to be tried before a jury or a Judge, etc.). Upon the receipt of a note of issue the Clerk numbers the case and places it in its regular order on the Calen- dar according to its date of issue (Sec. 977). Some cases are taken out of their regular order and placed at the head of the Calendar as "preferred" causes; either because they will take but a short time to try, or because of the importance to the community of a speedy trial (Sec. 791). To obtain a preference a party must incorporate a de- mand for the same in his notice of trial and must move for a preference before the Court at the opening of the term (Sees. 789-793). The Issues in a Case are Tried by: (1) A Judge, (2) A Referee, or (3) A Judge and jury (Sec. 969). An Issue arises where a fact or a conclusion of law is maintained by one party and controverted by the other (Sec. 963). Pboceedings in an Action. 49 The issues are presented by the pleadings. They are of two kinds: (1) Of law, and (2) of fact (Sec. 963). An issue of law arises only upon a demurrer; An issue of fact arises upon an allegation upon one side and a denial upon the other (Sec. 964). The trial is had before a Judge, sitting without a jury (i. e., at a Special Term of the Court, Sec. 976) ; (1) Where the issue is one of law; or, (2) Where the issue is one of fact; but, (a) A jury is not permitted by law (Sec. 969) ; or (b) the right to a jury has been waived by the parties, and the Judge assents to the waiver (Sec. 1008). A party may waive his rights to a trial by jury by (1) Failing to appear at the trial. (2) Filing a written waiver. (3) Consenting thereto in open Court. (4) Moving the case without a jury, or neglecting to object when the opposing side so moves (Sec. 1009). The trial is had before a Referee : (1) As of right: Where the parties consent thereto, except in the fol- lowing cases (Sec. 1011): (a) Matrimonial action. Wind-up of a corporation, (c) Where one party is an infant (Sec. 1012). 50 Pboceedings in an Action. (2) In the discretion of the Court: (a) In one of above cases. The Court must then choose the Referee. (&) Where the examination of a long account is neces- sary, and no difficult questions of law are in- volved (Sec. 1013) ; or (c) To take an account after interlocutory judgment has been entered (Sec. 1015) ; or (d) To obtain certain information for the Court (Sec. 1015). A Referee is a person to whom the Court delegates certain of its powers. He must be free from all just objections. Upon the trial, or hearing before him, he is sworn to faithfully execute his duties (Sec. 1025), and has then the powers of a Judge (Sees. 1016, 1017, 1018). The Court may appoint one or three Referees to hear a case. When the reference is by consent of the parties five Referees may be appointed (Sec. 1025). All of the Referees must hear all of the testimony, but a majority only is necessary for a decision (Sec. 1026). The trial is had before a Judge and a jury: (1) As of right, and unless jury is waived or a refer- ence is ordered, in cases of (a.) ejectment, (6) dower, (c) waste, (d) nuisance, (e) replevin, (/) for recovery of a sum of money only (Sec. Pboceedings in an Action. 51 968), (g) where so entitled by constitution or by express provision of law (Sec. 970). (2) In the discretion of the Court, (a) upon a question of fact arising upon an issue of law (Sec. 971), (b) where parties not entitled, as of right). The Place of Teial. Where the action is brought in the Supreme Court, the particular county in which the plaintiff desires the trial to be had must be desig- nated by him by endorsement on the papers. The proper county for trial is: (1) Of an issue of fact. (a) If the action affects read estate the proper county is the county where the real estate is situated. (b) If the action is for a penalty or a forfeiture; or against a public officer, as such; or to recover a destrained chattel, or damages for destraining, the proper county is the county wherein the cause of action arose (Sec. 983). (c) If the action is brought for any other cause the proper county is the county where either of the parties reside, or if neither reside within the State, then in any county (Sec. 984). (2) Of an issiie of law : Any county within the judicial district (Sec. 990). If the county designated by the plaintiff is the wrong 52 Pboceedings in an Action. county, the action may nevertheless proceed unless the Court or the defendant objects thereto (Sec. 985). If the objection is raised and defendant serves a written demand for a change of venue which is not ac- ceded to, the Court may, upon motion, change the place of trial (Sec. 987). The change will be made : (1) Where the county designated is the wrong county, as above. (2) Where an impartial trial can not be had in the present county. (3) Where the convenience of witnesses or the ends of justice will be promoted. The Pboceedings upon a Tbial. (1) If the matter is an issue of law: An oral argument is had before the Court, the papers on both sides are submitted, briefs are handed in, and the Judge, after due deliberation, renders his decision. (2) If the matter is an issue of fact: (a) A jury is impaneled (if one is required). The jury consists of twelve men, citizens of the United States, residents of New York State, between the ages of 21 and 70 years ; the owner, or the husband of the owner, of $250 of real or personal property; intelligent, of sound mind and able to read English. These men have been Proceedings in an Action. 53 summoned by the Sheriff to appear in. court and act as jurymen (Sec. 1079). (b) The plaintiff, or the one pushing the case for trial, furnishes the Court with a copy of the pleadings (Sec. 981). (c) The plaintiff opens the case by a brief address stat- ing the nature of the action, and then proceeds to produce his evidence. If the evidence is given orally a witness is called to the stand, sworn, and examined by the attorney calling him. This is called the direct examination. The op- posing attorney then cross-examines the witness, con- fining his questions to matters brought out on the direct examination. When the plaintiff ha,s produced all of his evidence he rests his case. The defendant then pro- duces the evidence on his side. When the defense is finished, the plaintiff may call witnesses to rebut statements made by the defendant's witnesses. Both sides then rest. If the case is before a Judge and jury the Judge charges the jury — i. e., tells them the law relating to the subject; the lawyers "sum up," and the jury retires to a private room to deliberate. When all twelve of the jury have agreed upon the verdict, they are brought into the Court and their ver- dict is entered upon the minutes by the clerk (Sec. 1189). If they do not agree they are discharged, and a new trial is had (Sec. 1181). 54 Proceedings in an Action. The verdict is either (1) general or (2) special, or (3) "subjct to the opinion of the Court" (Sec. 1234). It is general when the jury find both the facts and the law; special when they find the facts only, leaving the Judge to decide the law (Sec. 1186). In an action to recover real property, a chattel or a sum of money, the jury may return either kind of a verdict in its discretion; in other actions the Judge may direct which kind of verdict shall be brought (Sec. 1187). If a special verdict is found a motion is made at Special Term of the Court for the proper judgment thereon (Sec. 1233). If a general verdict is found judgment is entered at once. On a verdict "subject to the opinion of the Court," judgment can only be granted by the Appellate Division of the Supreme Court (Sec. 1234). The defeated party may move, however, for a new trial, either at once before the Judge who tried the case (Sec. 999), or later to the Court at Special Term, upon the printed minutes taken at the trial, and upon the ground that the verdict is : (1) Excessive; or (2) insufficient; or (3) contrary to evidence; or (4) contrary to the weight of evi- dence (Sec. 999). Proceedings in an Action. 55 If the motion is granted, the trial begins all over again ; if denied, judgment as above is entered. This motion for a new trial is a very important mat- ter, as it is only by appealing from the order made upon this motion that the facts in the case can be brought up for review. It is a fundamental rule that the jury settles the facts, and its findings, taken as they are from conflicting evi- dence, are deemed conclusive. Nevertheless, upon an appeal from this order the higher Court will scrutinize the evidence to see if the verdict was against the weight of the evidence, or excessive or insufficient in amount, and if the Court finds it so, they will grant a new trial of the issues. If the case is before a Judge without a jury, or before a Referee, the matter is decided either at once, or, if be- fore a Judge, within twenty days after the end of the term; if before a Referee, within sixty days after the submission to him. The decision or report is then filed in court, directing the entry of final or interlocutory judgment (Sec. 1021). It is ground for a new trial if the decision is not filed in time (Sec. 1019). The decision or report may state separately the find- ings of facts and conclusions of law, or may state con- cisely the grounds upon which the issues have been decided (Sec. 1022). Judgment will be entered as directed. 56 Peoceedings in an Action. During the trial of the action either party may object to the admission or exclusion of any evidence, and if the objection is overruled and the evidence admitted or excluded an exception may be taken, i. &., the objection may be noted in the stenographer's minutes (Sec. 992). An exception may also be taken to any ruling of the Court, and to those portions of the Judge's charge to the jury as are deemed to be erroneous statements of the law. An exception is taken to a ruling of law only (Sec. 992). Where the case is tried before a jury an exception must be taken at the time of trial and before the return of the verdict. Where an issue of fact is tried by a Referee or a Judge without a jury, a notice of excep- tions to the conclusions of law found by the Judge or Referee may be filed with the clerk of the Court, and served upon the adverse party within ten days after the filing of the decision (Sec. 994). This notice of exceptions is made part of the judg- ment roll. These exceptions are of great importance, as an Ap- pellate Court will not review a question of law unless a proper exception was taken at the proper time. Proceedings in an Action. 57 Article V. EVIDENCE. The evidence given at a trial may consist of (1) the oral testimony of witnesses, (2) the depositions of ab- sent witnesses or (3) documentary or other evidence. Oral Testimony op Witnesses. The oral testimony of a witness is obtained by his ap- pearing in the witness stand, taking the required oath, and testifying in answer to questions propounded to him. The oath is taken in the usual mode, by (1) laying the hand on the Gospel and expressing assent to the oath (Sec. 845), or (2) by swearing in the presence of the "Ever Living God," (Sec. 846), or (3) by solemnly, sincerely and truly declaring and affirming, or (4) by any other mode which will bind the conscience more firmly (Sees. 848, 849). If the witness is an infant or apparently of weak intellect, he is examined as to his capacity (Sec. 850). The witness either (1) appears voluntarily, or (2) comes by command of a writ of subpoena. A writ of subpoena is a mandate of the Court issued by a Judge, Referee or arbitrator requiring the attend- ance of a person therein named, if found within the State, to testify in a cause pending in that Court (Sec. 7). A witness failing to appear is punished for a con- tempt (Sec. 14), and also for all damages sustained by 58 Proceedings in an Action. reason of his non-appearance (Sec. 855), and lie for- feits $50 in addition thereto (Sec. 853). A subpoena is served by showing to the witness the original, paying him his fee (fifty cents) and his travel- ing expenses (eight cents per mile one way), and de- livering to him a copy or a "ticket" containing the sub- stance of the subpoena (Sec. 852). If the witness, duly subpoenaed, fails to appear, a warrant of attachment will be issued directing the Sheriff (Sec. 858) to arrest him (Sec. 855) and bring him before the Court. Depositions of Absent Witnesses. The deposition of a witness is the testimony, now re- duced to writing, given by him when under oath in answer to questions propounded to him. A deposition may be taken to be used either (1) in this State or (2) out of the State. To be Used in this State. A deposition to be used in this State may be taken of a witness who is either (1) in the State, or (2) out of the State. When the witness is in the State he must, when so ordered, appear before the Judge or Referee (Sec. 876), anywhere within the county where he resides or has an office for the regular transaction of business (Sec. 886) ; or, if he is a non-resident, in the county where served with the subpoena, providing his regular witness fees Proceedings in an Action. 59 have been paid, and providing he is not in jail ; in which latter case the Judge decides how his testimony shall be taken (Sec. 877). The parties may agree what questions shall be asked and reduce the same to writing (Sec. 879) ; or, the matter may be conducted orally (Sec. 879). The ex- amination is subject to the same rules as upon a trial (Sec. 880). The testimony is reduced to writing, subscribed by the witness, certified to by the Judge or Referee, and within ten days filed in the office of the Clerk of the Court (Sec. 880). A deposition, when read in evidence, has the same effect, and no other, as the oral testimony of the witness would have if given on the trial, and is subject to the same objections (Sec. 883). Such a deposition, no matter how taken, cannot be used upon the trial unless it is proved (1) that the witness himself cannot be present, by reason of his death, sickness, insanity, or infirmity or impriso nm ent, or (2) in the case of a party to the action, that his testi- mony has been obtained at the instance of an adverse party, or that the examination has been taken by consent of both parties (Sec. 882). Such a deposition may be taken of (1) a party to a pending action; or, (2) one who expects to be a party to an action about to be brought (Sec. 870) ; or, (3) a 60 Pboceedings in an Action. witness who is material and necessary for any party to an action pending or about to be brought (Sec. 871), providing the witness is (a) sick, (b) infirm, or (c) about to leave the State (Sec. 872) ; (4) in an action to recover damages for a personal injury and then a physical examination may be had (Sec. 873) ; (5) where a motion is about to be made, and the testimony of a person not a party to the suit is necessary (Sec. 886). To obtain an order to take such a deposition a motion must be made to the Court upon affidavits (Sec. 872), or the consent of both parties to the action must be ob- tained (Sec. 879). When the witness is out of the State, and his testi- mony is necessary to the applicant, a commission may be issued to one or more competent persons named nesses named therein under oath upon the written questions annexed to the commission; to take and cer- terrogations annexed to the commission ; to take and cer- tify the deposition of each witness, and to return the same, with the commission according to the directions threin contained (Sec. 887). The questions to be asked are agreed upon by the par- tieSj or the Judge decides which of the questions pro- posed may be asked (Sec. 891) ; they are then annexed to the commission (Sec. 872). It sometimes happens that the name of a witness is Proceedings in an Action. 61 not known, or the nature of the evidence which he can give is not known, in which case an open commission may issue, whereby oral questions may be propounded (Sees. 893, 894, 897). This kind of commission is limited to the United States and to Canada, nor can such an examination be had of an infant or one judi- cially declared to be insane or an habitual drunkard (Sec. 895). The examination is taken much the same as when a deposition is taken within the State (see Sec. 901). The deposition, when complete, is returned to the Clerk of the Corrt and there remains on file until re- quired at the trial (Sec. 909). The deposition of a witness, when read on the trial, has the same effect and no other as the oral testimony of the witness would have, and is subject to the same objections (Sec. 911). If the deposition is irregular in any way it may be suppressed (Sec. 910). Such a deposition may be taken (1) of one or more witnesses not within the State; or (2) of the applicant; or (3) of any other party (Sec. 887), when: (1) Issue is joined, and the testimony of the witness is material to the applicant. (2) Before issue is joined, if the witness is about to die or become unable to testify, or is about to remove from the State; or 62 Pboceedings in ait Action. (3) When required upon an inquest; or (4) To carry a judgment into effect; or (5) Where there is an appeal pending, and a new trial may be granted; or (6) In special proceedings (Sec. 888). When a witness is in a foreign country, beyond the jurisdiction of the Court, a commission would have no force or effect, excxept by permission of the foreign government; therefore letters rogatory are sent, which are in effect a request to a foreign court to collect the required evidence in its own manner, and to send the same to the Court issuing the request (Sec. 913). To be Used Out oe the State : The Code has made ample provision for fulfilling any such request to this State on the part of foreign coun- tries (see Sees. 914 to 920). Documentary Evidence : If documentary evidence is required upon the trial, it may be obtained by : (1) Subpoena duces tecum (Sees. 867-869). (2) Discovery (Sec. 803). (3) A notice to produce (Sec. 809). (4) A transcript of the record (Sec. 866). A subpoena duces tecum is the same as an ordinary subpoena, with the addition of a clause demanding that the witness bring with him certain described papers, books, etc. < : | PROCEEDINGS IN AN ACTION. 63 Discovery is a method to obtain an examination of books in possession of an adverse party, by petitioning the Court for an order to that effect. If such an order is granted and the adverse party still refuses to permit an examination, besides punishing him for a contempt, he may be precluded from himself using the books on the trial of the action (Sees. 803 to 809). A notice to produce is a notice served upon an ad- verse party, requiring him to produce upon a trial cer- tain papers, &c, in his possession, and upon his failure so to do, other or secondary evidence of their contents may be offered (see Rules of Practice). If the origi- nals are not then produced, copies are admitted in evi- dence. Any fact, act, record, proceeding or document may be proved according : (1) To the rules of the common law; or by (2) Other competent proof (Sec. 962) ; or (3) By the methods allowed by the Code (see Sees. 921 to 961). Competency of Witnesses : Evidence in Pae- tictjlae Cases. A person shall not be excluded or excused from being a witness by reason of: (1) having an interest in the event, (2) being a party thereto, (3) being a husband or wife of a party, or person on whose behalf the action is being prosecuted or defended (Sec. 828). 64 Pboceedings in abt Action. A person interested in the event shall not give testi- mony against the executor or administrator of a de- ceased person, or committee of a lunatic, concerning any personal transaction between the witness and such de- ceased person or lunatic; unless the executor or admin- istrator, or such committee first gives testimony about same. This is a rule of public policy to prevent the looting of a decedent's or lunatic's estate. An attorney shall not disclose any confidential com- munication of his client. (Sec. 835). A competent witness can not refuse to answer on the ground that it will render him liable to a debt, or civil action (Sec. 837). Testimony of one party taken at instance of adverse party may be rebutted (Sec. 838). Admission of mem- ber of corporation is not evidence against the corpora- tion, unless he was engaged in that particular mater as an authorized agent of the corporation (Sec. 839). A seal is presumptive, but not conclusive, evidence of consideration (Sec. 840. Seven years unexplained absence raises presumption of death (Sec. 841). The testimony taken at a former trial of a person since deceased or otherwise rendered incompetent, may be read at a subsequent trial (Sec. 830). An husband or wife is not competent to testify against the other in an action founded upon an allegation of Proceedings in an Action. 65 adultery; nor can one divulge a confidential communi- cation of the other made during marriage (Sec. 831). Conviction of a crime does not exclude witness (Sec. 832). A clergyman shall not disclose a confession made to him in the course of church discipline (Sec. 833). A physician shall not disclose any information ob- tained by him in his professional capacity (Sec. 834). Article VI. JUDGMENT. A judgment is the final determination of some issue. A judgment is either (1) interlocutory or (2) final (Sec. 1200). An Interlocutory Judgment is the final determination of some intermediate issue (as the right to recover, leav- ing the amount of recovery unfixed). A Final Judg- ment is the final determination of all the issues (Sec. 1200). A judgment is given by the Clerk of the Court (1) with, or (2) without, application to the Court. It may be given for or against one or more plaintiffs, or for or against one or more defendants. It may determine the ultimate rights of the parties on the same side as 66 Proceedings in an Action. between themselves, and it may grant to a defendant affirmative relief, to which he is entitled (Sec. 1205). A judgment is rendered without application to the Court upon (1) the consent of the parties, or (2) the default of the defendant in certain cases (Sec. 420), or (3) upon filing the decision of a Court or the report of a Referee directing such judgment (Sec. 1228). By Consent of the Parties : The defendant may offer to allow judgment to be taken against him in favor of the plaintiff, either for a sum, or property, or to the effect therein specified, with costs. If plaintiff accepts, judgment is entered by the clerk; if he refuses to accept, and upon the trial does not recover more favorable judgment than the offer, he must pay costs from the time of the offer (Sec. 738). A judgment by confession may be entered without action for money due or to become due, or to secure a person against a contingent liability in behalf of de- fendant (Sec. 1293). fendant (Sec. 1293). This is done by filing a written statement, made, signed and verified by the defendant to the following effect: (1) It must state the sum for which judgment may be entered, and authorize the entry of judgment therefor. (2) It must state concisely the facts on which the debt Proceedings in an Action. 67 arose or which constitutes the liability (Sec. 1274). The statement may be filed with the Clerk of the Court any time within three years, and judgment will be entered in like manner as a judgment in an action (Sec. 1275). The Clerk must attach together and file the state- ment and a copy of the judgment which constitutes the judgment roll. The jtidgment may be docketed and enforced against the property in the same manner as a judgment in an action (Sec. 1276). One or more joint debtors may confess a judgment for a joint debt, due or to become due (Sec. 1278). Upon Default of the Defendant. A judgment may be entered by the Clerk without ap- plication to the Court where the case is one of liqui- dated damages on contract (Sees. 1212, 420), and (1) the defendant has been duly personally served with the summons and with (a) a copy of the complaint, or (b) with a notice that judgment will be taken against him by default for a certain specified sum if he fails to ap- pear; and (2) the defendant, being so served, fails to appear or answer; or, having appeared, he makes de- fault in pleading. The plaintiff must file with the Clerk (1) the summons, with the complaint or notice; (2) proof of due service of the same; (3) affidavit 68 Pboceedinqs in an Action. that defendant has not appeared, or has made default in pleading (Sec. 1212). The amount for which judgment will be rendered if the defendant has defaulted will then be determined as follows, viz. : (1) If the complaint is verified — by the amount therein demanded, or for a smaller sum at the option of the plaintiff. (2) If the complaint is not verified — (a) by assessing the amount due upon an instrument for the payment of money only, or (b) by examining the plain- tiff under oath as to any other cause of action (Sec. 1213). Judgment shall not be more favorable to the plaintiff than that demanded in the complaint (Sec. 1207). Upon the Decision of a Court. Upon filing a decision of a Court or the report of a Referee directing a judgment, the Clerk will enter judgment at once (Sec. 1228), except in a matrimonial action (Sec. 1229). An application for judgment must be made to the Court where (1) the defendant has made default in ap- pearing or pleading (Sec. 1214), and (2) the case is not one of liquidated damages on contract, or (3) the service has not been other than personal (Sec. 1216). The plaintiff must, in that case, file with the Clerk (1) the summons, (2) proof of service of the same, and (3) the affidavit of the defendant's default (Sec. 1214). Proceedings in an Action. 69 The judgment to which the plaintiff is entitled will then be given (Sec. 1215). It must be consistent with the case made by the complaint and embraced within the issue (Sec. 1207). The amount of the judgment will be determined by the Court, or it may send the matter to a jury or to a Referee, or may issue a writ of inquiry to take proof of the facts (Sec. 1215). "Where the action is brought to recover damages for a personal injury, or for an injury to property, the damages must be ascertained by means of a writ of in- quiry, i. e., a writ directed to a Sheriff commanding him to empanel a jury, take proof of the facts, and return the verdict found (called an inquisition) to the Court for its further action (Sec. 1215). Either party may move for a new hearing before the Referee, or a new writ of inquiry, upon proof, by affi- davit, that error was committed to the prejudice of such party (Sec. 1232). Where the defendant is a non-resident, or a foreign corporation, and the summons was served by publica- tion, or other than personally, and the defendant has not answered, the plaintiff or his attorney must be ex- amined respecting any payment to the plaintiff on ac- count of his demand. The Court may also require that the plaintiff file an undertaking to abide the order of the Court, should the defendant afterward appear and defend the suit (Sec. 1216). 70 PROCEEDINGS IN AN ACTION. No such judgment against a foreign resident or a foreign corporation for a sum of money only shall be granted except for a cause for which an attachment could be granted (Sec. 1217) (see Sec. 635). In that case the plaintiff must file with the Clerk (1) affidavit showing that a warrant of attachment, granted in the action, has been levied upon the property of the defendant; (2) a description of the property and its value; (3) the undertaking as above (Sees. 1216, 1217). ISTo judgment shall be taken against an infaut de- fendant upon his default, until twenty days shall have expired since the appointment of a guardian ad litem (Sec. 1218). Such guardian is appointed by the Court, upon a motion, to protect the infant's interests. Judgment may be rendered for or against a married woman as if she was single (Sec. 1206). A judgment dismissing the complaint on some techni- cal ground and not upon the merits does not bar a new action for the same cause of action (Sec. 1209). A judgment bears interest from the time of its entry (Sec. 1211). In a complicated case several issues of fact or law, or both, may arise, which will be tried at different times and at different places. The action is often severed. Proceedings in an Action. 71 Final judgment is entered only when the last issue is disposed of (Sees. 1220, 1223, 1226). When judgment is rendered a judgment roll is made up by the attorney of by the Clerk (1239) and 41ed in the office of the Clerk of the Court. The Roll consists of (1) the summons, (2) the plead- ings, (3) the final judgment, (4) the interlocutory judgment, if any, and (5) each paper on file and each order involving the merits or affecting the judgment, ( 6 ) the report, decision, verdict or writ or inquiry upon which the judgment is. rendered (Sec. 1237). Notice of the entry of judgment need not be given to a defendant unless he has appeared generally or has demanded notice of the execution of any order of refer- ence or writ of inquiry (Sec. 1219). If the defendant has appeared generally, but has de- faulted in pleading, five days' notice of assessment of the amount by the Clerk, or eight days' notice of appli- cation to the Court for judgment must be given (Sec. 1219). When the roll is filed the Clerk makes an entry of the same in a judgment book, showing the date and minute of entry (Sees. 1236, 1239). If the judgment debtor has died before the entry of judgment, a memorandum of that fact is endorsed upon the docket ; and the judg- ment is not then a lien upon the property of the debtor, 72 Proceedings in an Action. but merely a debt to be paid in the regular course of ad- ministration (Sec. 1200). A transcript of this docket will be furnished upon application (Sec. 1247). Each County Clerk also keeps a judgment book (Sec. 1245) in which is docketed the name of the judg- ment debtor and other particulars (Sec. 1246) of all judgments rendered in the Supreme Court, or of a judgment rendered in some other Court when a trans- cript of the same is filed with him (Sec. 1247). This judgment book or docket is always kept open for public search and examination (Sec. 1249). The docketing of the judgment makes it a lien for ten years upon all the real property and chattels real in that county, of which the judgment debtor has or which he may acquire during the ten years (Sec. 1251). If the judgment debtor dies the time of the lien is extended three and one-half years (Sec. 1380). No judgment becomes a lien until so docketed (Sec. 1250). A purchase money mortgage is superior to this lien (Sec. 1254) ; nor does it affect one holding a contract for the purchase of the real estate when the judgment is rendered (Sec. 1253) ; nor is it a lien if the judgment debtor dies before entry of same (Sec. 1210). The lien of the judgment may be extended even after the expiration of the ten years by issuing a new execu- tion to the Sheriff and filing a notice, subscribed by the Proceedings in an Action. 73 Sheriff in the County Clerk's office describing the judg- ment, the execution, and the property levied upon. The object of filing the notice is to notify the world that the lien has been revived (Sec. 1252). A judgment when thus entered may be (1) Vacated and set aside, (2) paid and satisfied, (3) appealed from, (4) enforced. Vacated and Set Aside. A motion to vacate and set aside the judgment may be made on the ground of (1) "irregularity" within one year (Sec. 1282), or "error in fact, not arising upon the trial," within two years (Sec. 1290). The motion may be made by (1) the party against whom it was rendered (Sec. 1283), or (2) by the party in whose favor it was rendered if he has not enforced the judgment by execution or otherwise, and the same remains partly unpaid (Sec. 1283), or (3) by the rep- representative in interest of either party if they be dead (Sec. 1284). If two or more persons are entitled to move to vacate, either may move alone (Sec. 1286). Notice of motion must be given to the adverse party (Sec. 1287; and, if the judgment affects real property which has been conveyed by the adverse party, notice to every actual occupant of the same must be given (Sec. 1288). If property has been applied toward the satisfaction 74 Pkoceedings in an Action. of a judgment and the judgment is afterward vacated, restitution of the same will be ordered (Sec. 1292). If the judgment is vacated, the plaintiff must begin the action all over again. Paid and Satisfied. Where a judgment is for a sum of money only (Sec. 1272), a judgment debtor may offer to the person en- titled to enforce the judgment (1) the sum due upon the judgment, and (2) the fees allowed by law for tak- ing the acknowledgment of a deed, and (3) a blank satis- faction piece of the judgment (Sec. 1261). A satisfaction piece is a written instrument describ- ing the judgment and acknowledging that it has been paid. Such person must thereupon execute and ac- knowledge such satisfaction piece (Sees. 1261, 1262). It is then filed in the office of the Clerk where the judgment roll is filed, and the clerk must thereupon cancel and discharge the docket of judgment (Sec. 1260). The Clerk must then give a certificate of satisfaction to the party demanding the same, which may be filed in the office of the Clerk of each county where the judg- ment roll has been docketed, and each docket will then be cancelled and discharged (Sec. 1267). The satisfaction piece must be executed by (1) the party in whose favor the judgment was rendered ; or (2) his executor or administrator; or (3) if within two Proceedings in an Action. 75 years after the filing of the judgment roll, by the attor- ney of record of the party if his power has not been re- voked; or (4) if a proper assignment of the judgment has been filed (Sec. 1270), by the party appearing from such assignment to be the owner of the judgment; or (5) by the attorney in fact of a party entitled to execute, if the power of attorney is recorded in the register's office as a deed, or is filed with the satisfaction piece (Sec. 1260). The execution must be acknowledged or proved in the same manner as a deed to be recorded (Sec. 1260). Appealed From — See "Appeal." Enforced. A judgment may be enforced either (1) by serving upon the party against whom it is rendered a certified copy of the judgment, and, if he refuses to obey it, by punishing him for a contempt of court; or, (2) by execution (see "Execution"). It is enforced by contempt proceedings in the follow- ing cases : (1) Where the judgment is final and may not be en- forced by execution, or part of it may not. (2) Where the judgment is. interlocutory and requires the party to do or to refrain from doing some act. Except in a case specified in the next subdi- vision. (3) Where the judgment requires the payment of 76 Pboceedings in ah Action. money into Court, or to a Court office, except where the money is due upon a contract, or as damages for the non-performance of a contract (Sec. 1241). It is enforced by execution : (1 ) Where judgment is for a sum of money, in favor of either party, or directs the payment of a sum of money. (2) Where the judgment is in favor of the plaintiff in an action of ejectment or of dower. (3) Where the judgment awards a chattel to either party, in an action of replevin (Sec. 1240.) Abticle VII. APPEAL. An appeal is an application to a higher court for a review of some final determination of a lower court. An appeal may be taken by (1) any party considering himself aggrieved by the determination of the lower court; or (2) any person interested, and entitled to be substituted in the place of such person (Sec. 1296) ; or (3) the representative of a deceased person, when duly substituted within four months after such death (Sees. 785, 1297). No appeal can be taken where the judgment or order Pboceedings in an Action. 77 appealed from was rendered upon the parties' default (Sec. 1294). Where one of the parties to an appeal dies before the appeal is heard, and no representative is substituted, as per Sec. 785, within three months an order may be made requiring all the persons interested in the estate of the deceased to show cause on a day at least six months after the making of the order, why they should not prosecute the appeal, otherwise the same will be dis- missed (Sec. 1298). The party appealing is called the appellant, the other party is then the respondent (Sec. 1295). The title to the action is not otherwise changed, ex- cept that the name of the Appellate Court is substituted for that of the Court below (Sec. 1295). An appeal must be taken within a certain limited time, which time varies in the several Courts, as follows : (1) To THE COTTBT OF APPEALS. (a) From a final judgment of the Appellate Division, within one year after entry of judgment and filing of the roll. (b) From an order, within sixty days from the entry of same, and service of a copy of the same, with notice of entry thereof (Sec. 1325). 78 Proceedings in an Action. (2) To the Appellate Division of the Supeeme Couet. (a) From the County Court and Inferior Courts, (except appeals heretofore heard in Court of Common Pleas, i. e., District Courts in New York City) : (1) From a final judg- ment within thirty days after service of a copy of the judgment and notice of entry (Sec. 1341). (2) From an order affecting a substantial right, within sixty days after service of order and notice of entry (Sec. 1343). (b) From the Supreme Court, from either a judgment or an order, within thirty days from service of judgment or order and no- tice of entry (Sec. 1351). The time of appeal cannot otherwise be extended (Sec. 784), but the Court may permit the amendment of an irregular notice of appeal, or may permit it to be perfected where service has been made upon either the clerk or the attorney, but not upon both (Sec. 1303). An appeal is taken by serving upon the adverse party, and upon the Clerk of the lower Court, 'a "notice of appeal" (Sec. 1300). This notice must distinctly state from what the appeal is taken, and whether any intermediate orders which Proceedings in an Action. 79 may have been granted are to be brought up for review (Sec. 1301). An appeal from a final judgment brings up for review any interlocutory judgment or intermediate order speci- fied in the notice of appeal, and necessarily affecting the final judgment (Sec. 1316) which has not already been appealed. Where an appeal is taken to the Court of Appeals, the appellant must file in the office of the Clerk of the Court where the judgment or order is entered an undertaking with good and sufficient sureties in the sum of $500 as security to respondent for the costs of the appeal ; or he may deposit the sum of $500 with the said Clerk for the same purpose (Sees. 1326, 1306, 1307). This is called "perfecting the appeal." Where an appeal is taken to any other Court no security for costs is required (Sees. 1341, 1343, 1351). The appellant may file an undertaking conditioned for the perform- ance or the payment of the judgment, if the decision of the appeal is adverse to him. This has the effect of staying the enforcement of the judgment, and of all pro- ceedings pending the appeal (Sees. 1327 to 1331, 1341 to 1343, 1351, 1352). If a levy is already made under an execution it will be discharged (Sec. 1311). If such undertaking is not given, proceedings may be taken to enforce the judgment as if no appeal was pending; but, if the appeal is successful and the judgment is reversed, 80 Proceedings in an Action. the Court will order restitution of any property taken under the judgment, but not so as to affect injuriously the rights of innocent third parties (Sec. 1323). The Court may dispense with this security, or limit its amount, where the appellant is an executor, adminis- trator, trustee or person acting in another's right (Sec. 1312). Wo security is required where the appellant is a do- mestic municipal corporation (Sec. 1314), unless re- quired by the Court. The appellant must transmit to the Appellate Court, within twenty days after the appeal is perfected, all the papers necessary for the review of the case, namely: (1) From a final judgment: (a) A copy of the judg- ment roll; (b) a copy of all the evidence taken on the trial, with the exceptions; (c) a certified copy of the judgment given thereon, and (d) a certified copy of the notice of appeal (Sees. 1315, 1353). (2) From an interlocutory judgment, or from an order: (a) A certified copy of the order or judgment and of the notice of appeal, and (b) of the papers upon which the judgment or order is founded (Sees. 1315, 1353). An appeal may be taken from (1) an order, or (2) a judgment, or (3) an order granting or refusing a new trial. Proceedings in an Action. 81 In order to appeal the party must make a case and have the same settled and signed by the Judge before whom the matter was tried. A case contains so much of the evidence and other proceedings upon the trial as is material to the questions to be raised thereby; also the exceptions taken by the party making the case (Sec. 997). The case and points must be printed and certified to be correct by the Judge, and sixteen copies delivered to the Clerk of the Court to which the appeal is taken. The Rules of Practice prescribe the methods for bring- ing the appeal on for argument. A new note of issue must be filed and notice of argument given to the ad- verse party. The Court ov Appeals has exclusive jurisdiction to review upon appeal (Sec. 1324) the actual determin- ations made by the Appellate Division of the Supreme Court in either of the following cases and no others: (1) Where the Appellate Division certifies that one or more questions of law have arisen which ought to be reviewed by the Court of Appeals. Only the questions so certified are then brought up for review. (2) Where the party appealing stipulates that, if the judgment is affirmed, judgment absolute may be 82 Proceedings in an Action. entered against him — i. e., that the litigation will cease (Sec. 190). Appeals in criminal cases also go to this Court. An appeal from an order granting or refusing a new trial, or from an interlocutory judgment, cannot be appealed directly to this Court; but, upon an appeal from a final judgment entered upon such order or judg- ment, the same may be brought up for review (Sees. 1336, 1350). A unanimous determination by the Appellate Divi- sion that there is evidence supporting or tending to sus- tain a finding of fact, or verdict not found by the Court, cannot be reviewed (Sec. 191). Only questions of law are heard by this Court, except in one case — i. e., where the Appellate Division are divided on the question as to whether or not there is evidence supporting or tending to support a finding, or verdict not rendered by the Court (Sees. 1337, 191). Only those cases can be appealed to this Court which were commenced in the Supreme Court, the County Court or the Surrogate's Court, unless the Appellate Division allows the same by a written certificate (Sec. 191). ]STo appeal can be taken from a unanimous decision of the Appellate Division in certain actions (Sec. 191). The Court has power upon the appeal to either mod- ify or affirm the judgment or order appealed from, Pboceedings in an Action. 83 award a new trial, or grant to either party such judg- ment as such party may be entitled to (Sec. 1337). The Appellate Division of the Supreme Court has jurisdiction to review upon appeal: (1) A final judgment rendered by a County Court, or by any other court of record possessing original jurisdiction, where provision for its appeals are not otherwise made; and upon such appeal an order granting or refusing a new trial, or affect- ing a substantial right, and questions of fact, may be reviewed in the same manner as upon an appeal from the Supreme Court (Sees. 1340, 1342). (2) A final judgment rendered in the Supreme Court, as follows: (a) Upon questions of fact, law, or both, where the judgment was rendered upon a trial by a Judge without a jury, or by a Referee. (&) Upon questions of law, where the judgment was rendered upon the verdict of a jury (Sec. 1346). (3) An order made at a Special Term or a Trial Term, in either of the following cases ; i. e., where the order : (a) Grants, refuses, continues, or modifies, a provisional remedy. 84 Proceedings in an Action. (b) Grants or refuses a new trial. (c) Involves the merits. (d) Affects a substantial right. (e) In effect terminates the action. (/) Determines a Statute of the State to be un- constitutional (Sec. 1347). (4) An order made out of court, but upon notice, where an appeal could be taken if made in court (Sec. 1348). (5) An interlocutory judgment rendered at a Special or Trial Term, or rendered upon the report of a Eeferee (Sec. 1349). In the County of New York (First Department) the Appellate Division may designate three Judges of the Supreme Court to hold an Appellate Term, to hear appeals from the District Courts, and from the City Court of the City of New York (Sec. 1344), which prior to January 1, 1896, were heard at the General Terms of the Court of Common Pleas of New York and the Superior Court of Buffalo. Appeals from the Ap- pellate Term go to the Appellate Division m the follow- ing cases: (1) Where the determination involves great inter- ests; or (2) Where a principle of law is involved which will affect the decision of numerous other cases ; or (3) Where the decision is in direct conflict with one Proceedings in an Action. 85 rendered by the General Term (now Appellate Division) of the First Department. A reargument of the matter may be had in the discret- tion of the Court: (1) Where some decisive question has been overlooked by the Court. (2) Where the decision is in conflict with an express statute or a controlling decision. (3) Where, since the decision, the same principle has been decided in a different manner in the Court of Appeals or by the Appellate Division. Upon an appeal from a judgment or order the Appel- late Division to which the appeal is taken may reverse or affirm wholly or partially, or may modify the judg- ment or order appealed from, and each interlocutory judgment or intermediate order which it is authorized to review, as specified in the notice of appeal. It may grant a new trial or hearing (Sec. 1317). The judgment roll consists of a copy of the judgment, annexed to the papers upon which the appeal was heard (Sec. 1354). Article VIII. EXECUTION. An execution is a process of the Court from which it is issued (Sec. 1364). It is a writ, issued in the name 86 Pboceedings in an Action. of the Court, but by the attorney for the judgment cred- itor. It is directed to the Sheriff (Sec. 1362), com- manding him to obey the directions therein contained. If the Sheriff is a party to the action, or is interested in it, the execution is directed to the Coroner (Sec. 173), or to some third party designated by the Court (Sec. 1362). The execution must intelligently describe the judg- ment, stating the names of the parties in whose favor and against whom; the time when and the Court in which the judgment was rendered; also the time when and the Clerk with whom a transcript is filed, if it isr sued out of a Court other than that in which the judg- ment was rendered; and, if it was rendered in the Supreme Court, the county in which the judgment roll is filed (Sec. 1366). It must direct the officer how to execute the same, and it must require that it be returned, within sixty days after the receipt thereof, to' the Clerk where the judgment roll is filed (Sec. 1366), unless it is issued out of a Court other than the Court in which the judg- ment is rendered, when it must be made returnable to the Clerk of that Court (Sec. 1367). An execution may be issued by the party who recovers a final judgment, or by his assignor, or, if dead, by his representative (Sec. 1376). It may be issued as of course at any time within five years after the entry of Pkoceedings in an Action. 87 judgment (Sec. 1375), but after the lapse of five years it may only be issued in one of the following cases : (1) Where one execution has already been issued with- in the five years, but has been returned un- satisfied. (2) Where the Court, by order upon notice, grants leave to issue execution (Sees. 1377, 1378). Where the party against whom a judgment has been rendered dies, execution can only be issued in the fol- lowing manner: (1) Where the execution is for the recovery of the pos- session of real property, only by obtaining an order from the Court granting leave to issue and execute such execution. Twenty days' notice of application for this order must be given to the occupants of the land sought to be recovered, and to the grantees and devisees or heirs at law of the deceased (Sec. 1376). (2) Where the execution is to collect a sum of money, an order must be obtained from the Court out of which the execution is to issue, and a decree to the same effect must be obtained from the Sur- rogate who has duly granted letters upon the estate. Both the order and the decree must be obtained upon proper notice, and both must grant leave to issue the execution. The lien of the judgment is extended from 88 Peoceedings in an Action. ten years to tliirteen and a half years in this case (Sees. 1379, 1380, 1381). Execution may be enforced against the property of one or more surviving judgment debtors as if all the judgment debtors were living (Sec. 1383). There are four kinds of execution (Sec. 1364) : (1) An execution against property. (2) An execution against the person. (3) An execution for the delivery of the possession of real property, with or without damages for with- holding the same. (4) An execution for the delivery of the possession of a chattel, with or without damages for the tak- ing or the detention thereof (Sec. 1364). An Execution Against Peopeety. This can be issued only to a county in the Clerk's Office of which the judgment is docketed (Sec. 1365). It must require the Sheriff to satisfy the judgment out of the personal property of the debtor ; and, if sufficient personal property cannot be found, then out of the real property belonging to him at the time when the judg- ment was docketed in the Clerk's Office of the county, or at any time thereafter (Sec. 1369). It must specify the sum directed to be paid, the sum actually due thereon, and the day from which interest is to be computed (Sees. 1368, 1369). An execution against property is executed by the PROCEEDINGS IN AN ACTION. 89 Sheriff making a levy up (i. e., seizing) the property of the judgment debtor, and taking the same under his control. He then sells the same at public auction. At the sale the property must be in view of those attending the sale, and it must be sold in such lota and parcels as are calcu- lated to bring the highest price (Sec. 1428). At least six days' notice of the time and place of such sale must be given by posting conspicuously written or printed notices thereof in at least three public places of the town or city where the sale is made (Sec. 1429). The personal property of the judgment debtor must be exhausted before the real property can be reached. A levy upon personal property is made as follows : (1) Upon current coin, by seizing the same and turn- ing it over to the plaintiff at its face value (Sec. 1410). (2) Upon a bill or other evidence of debt issued by a moneyed corporation intended to pass as money ; or a bond or other instrument for the payment of money issued by a corporation, and in terms negotiable or payable to bearer or holder, by seiz- ing and selling the same (Sec. 1411). (3) Upon property pledged, by selling the right, title and interest of the judgment debtor therein (Sec. 1412). (4) Upon the interest of one partner in a partnership, 90 Proceedings in an Action. by seizing the whole partnership property and selling the right, title and interest of such part- ,ner. The other partners may substitute a bond in place of such partnership property (Sees. 1413, 1414). If personal property levied upon as the property of the judgment debtor is claimed by a third person as his property, the Sheriff may try the validity of the claim before a Sheriff's jury (Sec. 1418). If this jury finds that the property does not belong to the claimant, he may nevertheless have his action at law to recover the same (Sec. 1420). If the jury find that it does belong to the claimant, the Sheriff must turn the same over to him, unless the plaintiff gives an undertaking with sufficient sureties to indemnify the Sheriff in case the claimant proceeds at law and recovers damages against him (Sees. 1419, 1421, 1424). Certain personal property has been declared to be ex- empt from levy and sale under an execution; namely, household furniture (Sec. 1300), tools of a mechanic, a small number of domestic animals (Sec. 1300). The working tools and team, personal instruments, furniture and library, not exceeding $250, are also ex- empt when owned by a woman (Sec. 1392) or by one who supports a family, unless the judgment is obtained Peoceediitos in as Action. 91 for work performed as a domestic in such family (Sec. 1391). When the personal property of the judgment debtor is exhausted and the judgment still remains unsatisfied, the real property of the debtor may be sold. The expression "real property" includes leases having five years to run (Sec. 1430). A levy may be made upon real property held in trust for the debtor (Sec. 1431). Where the sum for which the judgment was rendered was secured by a mortgage on real property, a levy can- not be made upon the equity of redemption of the de- fendant in such mortgaged property. The attorney must so advise the Sheriff by a proper endorsement on the execution (Sees. 1432, 1433). Certain real property has been declared exempt from sale by execution, namely: (1) Land set apart as a private burial ground, not ex- ceeding one-fourth of au acre, and actually used as a burial ground (Sec. 1395). (2) Land not exceeding $1,000 in value set aside as a homestead (Sec. 1397). A notice of such exemption must be filed with the Clerk of the Court (Sees. 1396, 1404). Public notice of the sale of real property must be given by the Sheriff. If he neglects to give proper notice he forfeits $1,000 and damages (Sec. 1436). 92 Proceedings in an Action. Such notice must be given by publishing a written notice of the same, describing the property with reason- able certainty (Sec. 1435), at least once in each of the six weeks immediately preceding the sale, in a news- paper published in the county, if there is one; or, if there is none, in the newspaper printed at Albany in which legal notices are required to be published ; and by having such notice conspicuously posted up, at least forty-two days before the sale, in three public places in the town or city where the sale is to take place, and also in the town where the property is situated (Sec. 1434). The provision in regard to the State paper has been abolished. If the property consists of several parcels, each parcel will be sold separately. ISTo more will be sold than is sufficient to satisfy the judgment (Sec. 1437). The Sheriff delivers to the purchaser at the sale, or within ten days thereafter, a certificate of sale (Sec. 1439) containing: (1) The name of each purchaser and the time when the sale was made. (2) A particular description of the property sold. (3) The price bid for each distinct parcel. (4) The whole consideration money paid. The Sheriff also files a duplicate of such certificate with the Clerk of the county, who records the same (Sec. 1439). Proceedings in an Action. 93 The purchaser upon such sale does not obtain an abso- lute title; he obtains the right, title and interest of the judgment debtor subject to the right of the said debtor, his heir, devisee, grantee or creditor, to redeem the said property. Property sold at public auction is often sold for less than its actual value, and hence provision is made to give the debtor a chance to get his land back, if he con- siders the selling price insufficient. The creditors of the judgment debtor are also permitted to redeem. The judgment debtor, his heir, devisee or grantee, having an absolute title to the property, may redeem the property sold, within one year after the sale, by pay- ing to the purchaser the sum paid by him at the sale, together with ten per cent, interest from, the time of the sale. If the purchaser refuses to take the money, it may be paid to the Sheriff. Upon such payment the sale and certificate of sale become null and void (Sees. 1446, 1447, 1448, 1462). If such redemption is not made within one year by such persons, then a creditor, having a judgment ren- dered or a mortgage recorded before the expiration of fifteen months after the sale, may redeem within three months after the end of the year, by repaying to the purchaser the sum paid by him, with seven per cent, in- terest from the time of sale, and by satisfying his own judgment or mortgage (Sees. 1450, 1463). 94 Pboceedings in an Action. In order to entitle such creditor by judgment to re- deem, he must file in the County Clerk's Office or deliver to the Sheriff, as the case equires, the following evi- dence of his right: (1) A certified copy of the docket of judgment. (2) Each assignment of the judgment, if any. (3) An affidavit stating the sum remaining due thereon (Sec. 1464). A creditor by mortgage must file : (1) A copy of the mortgage. (2) Each assignment of the mortgage, if any. (3) Affidavit of amount due (Sec. 1465). When a creditor has so redeemed the property, any other creditor who might have redeemed may now re- deem from him, by paying the sum advanced for re- demption. He must also pay the amount of the judg- ment or mortgage of the first creditor if such judgment or mortgage is a lien prior to the lien of the subse- quently redeeming creditor. If it is not a prior lien he need only pay the sum advanced for redemption. He must also satisfy his own judgment or mortgage (Sec. 1457). Subsequent creditors may redeem ad infinitum, each one having twenty-four hours after the last redemption (Sees. 1452-1455). Until such redemption the pur- chaser may use the property as follows: (1) In the same manner as it was used before the sale. Proceedings in an Action. 95 (2) He may make ordinary repairs, not extending to an alteration of the building. (3) He may use and improve the land in the ordinary way, but is not entitled to emblements. (4) He may use timber for repairing fences. (5) He may take necessary firewood if he actually occu- pies the property (Sec. 1441). If he commits waste he will be punished for a con- tempt of court (Sees. 1442-1445). At the expiration of the time to redeem, the Sheriff executes to the purchaser or to the last redeeming cred- itor a deed conveying the right, title and interest of the judgment debtor (Sees. 1471, 1472). When this deed has been recorded twenty years it is presumptive evidence of the facts contained therein (Sec. 1471). If the title of the purchaser is adjudged void in any action brought by the debtor or one claiming under him, the judgment shall have no force or effect unless within twenty days the said purchaser is paid the sum of money paid on the sale, with interest and costs (Sec. 1440). If such purchaser is evicted from the possession there- of, or judgment is rendered against him to recover the same on account of any irregularity in the proceedings concerning the sale, or in rendering the judgment, or issuing execution, he may recover the purchase price 96 Pkoceedings in an Action. and interest and costs f roni the party for whose benefit the property was sold (Sees. 1479, 1480). Where a judgment is against the real estate of two or more debtors it may be enforced against the property of either ; but the party who is forced to pay all may have contribution against the other debtor (Sec. 1481). Where one party, in order to redeem his own share, is forced to redeem the shares of others he may enforce contribution (Sees. 1482-1486). An execution becomes a lien upon personal property of the judgment debtor within the county from the time the same is issued to the Sheriff of that county (Sec. 1405), but the title of an innocent purchaser for value is not affected (Sec. 1409). The execution issued out of a court of record which is first in the hands of the proper officer is entitled to be fully satisfied before the later ones are considered (Sees. 1406, 1407). Th Sheriff within sixty days after recovering an exe- cution against property must return the same to the proper Clerk with the results of his efforts to enforce it endorsed thereon; i. e., "fully satisfied," "partly satis- fied," or "no property" (Sec. 1266). The Clerk then makes an entry to that effect on the judgment docket (Sees. 1264, 1265). A new execution may then be issued at any time dur- ing ten years after the entry of judgment. Pboceedings in ast Action. 97 Two or more of them upon the same judgment may be issued at the same time to two or more different coun- ties (Sec. 1365). An Execution Against the Peeson. This may be issued to any county (Sec. 1365). It must substantially require the Sheriff to arrest the judg- ment debor and co mmi t him to the jail of the county until the judgment is paid or he is discharged according to law (Sec. 1372). Such an execution can be issued only in the following cases: (1) Where the plaintiff's right to arrest depends upon the nature of the action (t. e., fraud, deceit), or (2) Where an order of arrest has been granted and exe- cuted against the judgment debtor. A woman cannot be arrested under the first division (Sees. 1487, 1488). An execution of this kind cannot be issued until an execution against the property has been issued and re- turned unsatisfied, unless the defendant is already in jail (Sec. 1409). The term of imprisonment cannot exceed three months where the judgment is for less than $500, nor for more than six months in any case (Sec. 111). The prisoner must support himself (Sec. 110), unless he takes oath that he is unable to do so, when he becomes a county charge. A debtor who has been imprisoned for thirty days 98 Proceedings in an Action. must be discharged upon the demand of the creditor. The creditor cannot then arrest the debtor again, but he may have an execution against the property (Sec. 1494). An Execution foe the Deliveey or the Posses- sion of Specific Reai, Pkopeety, or an Execution foe the Deliveby of the Possession of a Chattel, must require the Sheriff to deliver the possession of the property within his county to the party entitled thereto (Sec. 1373). The property or chattel must be particu- larly described (Sees. 1373, 1731). An execution for the delivery of the possession of real property must be issued to the county where the prop- erty, or a part thereof, is situated; for the delivery of the possession of a chattel to any county where the chat- tel is found, or to the county where the judgment roll is filed (Sec. 1365). SUPPLEMENTAEY PbOCEEDIJSTGS. 99 CHAPTEE IV. SUPPLEMENTARY PROCEEDINGS. In many cases after the issuing of an execution against property, the judgment debtor endeavors to se- crete his property or to fraudulently dispose of it The Court provides two methods of checking this: (1) By means of supplementary proceedings; (2) by a judgment creditor's action. Where a judgment is rendered in a court of record for $25 or over, upon a judgment debtor's appearance or personal service of the summons upon him, where the judgment debtor is not a corporation (Sec. 2460), and when an execution has been properly issued (Sec. 2458), and has been returned wholly or partly unsatisfied, the judgment creditor may at any time within ten years after such return, upon application to the Court, obtain an order requiring the judgment debtor to appear in court, or before a Keferee (Sec. 2442) therein ap- pointed, and be examined on oath concerning his prop- erty (Sec. 2435). He must answer all qiiestions touching the property which he now has, which he ever has had, or which he has the prospect of acquiring in the future. 100 SUPPLEMENTABY PkOCEEDIITOS. Such an order can also be obtained after the issuing, but before the return of an execution upon property, upon affidavit that the judgment debtor has property which he unjustly refuses to apply towards the satis- faction of the judgment (Sec. 2436). Upon proof that the judgment debtor is about to leave the State, a warrant of arrest may be obtained in place of such order (Sec. 2437). The debtor must then be imprisoned, or give bonds for his appearance when the same is required. Such an order can also be obtained after the issuing, but either before or after the return of the execution, against any third party who is shown to have property of the judgment debtor exceeding ten dollars in amount (Sec. 2441). Any property may be reached by these orders except (1) property specially exempt by law, (2) property held in trust for such jtidgment debtor, (3) earnings of the judgment debtor for services performed during the preceding sixty days, when those earnings are necessary for the support of his family (Sec. 2463). Either of these orders may contain an injunction for- bidding the debtor or any third party to dispose of or interfere with the property of the judgment debtor pending the examination (Sec. 2451). The order must be served by delivering to the debtor personally a copy thereof, and of the affidavit upon Supplementary Proceedings. 101 which it was made, and by exhibiting to such debtor the original order (Sec. 2452). If the debtor or third party refuse to obey such order, he may be punished for contempt of court (Sec. 2457). The debtor or third party cannot be compelled to ap- pear anywhere outside of the county of his residence, or where he has a place for the regular transaction of busi- ness (Sec. 2459). The proceedings upon the return of the order are the same as upon a trial. If the order is returnable before a Referee the Referee must take the regular oath (Sec. 2445). Either party may produce and examine wit- nesses. The Referee has the same power to issue sub- poenas as a Court. Great latitude is allowed in the ex- amination (Sec. 2460). The proceedings may be ad- journed from time to time in the discretion of the Court or Referee (Sec. 2444). If any property is discovered to be in the possession of the debtor or any third party an order may be made directing its payment at once to the Sheriff or to the Receiver of the property of the judgment debtor, if any such Receiver has been appointed (Sec. 2444). The Sheriff may receive the money whether he holds an execution or not (Sec. 2448). He may be directed by order to turn it over to the Receiver or to apply it to an execution then or to be issued (Sec. 2449). At any time after the making of such an order, or the 102 Supplementary Proceedings. issuing of a warrant of arrest, the Court may appoint a Eeceiver of the property of the judgment debtor. Two days' notice of this appointment must be given, unless the motion is made at the close of the examination, when the debor is in court (Sec. 2464). There can be but one Eeceiver at a time. If one is already appointed his receivership may be extended by order, so as to cover any subsequent proceedings (Sec. 2466). The order appointing a Eeceiver must be filed in the County Clerk's Office where the judgment roll or a transcript of the judgment is filed (Sec. 2467). The Eeceiver must be a resident of the State (Sec. 2469), and must give bond for the faithful discharge of his duties. The property, both real and personal, of the judg- ment debtor, vests in the Eeceiver (Sec. 2467). Judgment Creditor's Action. Where an execution issued to the proper county (Sec. 1872) upon a judgment recovered in a court of record against anyone not a corporation (Sec. 1879) has been returned wholly or partly unsatisfied, the judgment creditor may maintain an action against the judgment debtor, and any other person, to compel the discovery of any thing in action, or other property belonging to the judgment debtor, and of any money, thing in action, Supplementary Proceedings. 103 or other property due to him, or held in trust for him ; to prevent the transfer thereof or the payment or de- livery to him or to any other person ; and to procure the satisfaction of the plaintiff's demand (Sec. 1871). A temporary injunction may he granted, pending the action, restraining any transfer or interference with the debtor's property (Sec. 1876). A Eeceiver may also be appointed (Sec. 1877). Exempt property or personal earnings for the sixty days preceding the granting of the order, where they are necessary for the support of a family, cannot be reached (Sec. 1879). A discovery may be compelled by directing the per- sons required to make it to appear before the Court or a Referee, and be examined under oath concerning the matters pertaining to the discovery. The final judgment when obtained must direct the satisfaction of the plaintiff's judgment out of the prop- erty discovered (Sees. 1873, 1874). 104 A Special Pkoceeding. CHAPTER V. A SPECIAL PROCEEDING. A special proceeding is any prosecution, not an action, brought by a party, in a court, for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence (Sec. 3334). A special proceeding applies only to civil matters (Sec. 3343). The parties to a special proceeding are the same as the parties to an action. A special proceeding is commenced by filing with the Court a verified petition or affidavit setting forth the facts upon which the proceeding is based, and request- ing that the defendant be required to show cause why the petitioner's demand should not be granted. The Court then issues a citation, or an order to show cause, to the defendant, requiring him to appear in court on a day certain and show cause, etc. This is the usual method of proceeding in the Surro- gates' Court, but is used in many cases in the other Courts. See "Proceedings in Surrogates' Courts." The citation or order to show cause must be served A Special Pboceeding. 105 upon a defendant personally in the same way as a sum- mons, except that in a proceeding to punish for a con- tempt of court it must be served personally within the State (Sec. 433). Service cannot be made other than personally. Upon the return day of a citation or order to show cause, all parties appear in court and argue the matter. The facts are presented by affidavits. The Judge then hands down his decision in the form of a final order or decree. This has the same effect as a judgment. The final order or decree, if affecting a substantial right, may be reviewed upon appeal by the Appellate Division of the Supreme Court (1356). Such appeal must be taken within thirty days after service of a copy of the final order with notice of entry in the proper Clerk's Office (Sec. 1359). The further proceedings on the appeal are the same as on an appeal in an action (Sec. 1360). 106 Abbitbation. CHAPTEK VI. ARBITRATION .,.-;.": Arbitration is the submission to one or more arbitra- tors, by two or more persons, of any controversy existing between them which might be the subject of an action (Sec. 2366). The method of submission is for both parties to sign and properly acknowledge an instrument or deed sub- mitting the controversy to arbitration and appointing one or more persons to act as the arbitrators (Sec. 2366). An additional arbitrator may be appointed only by deed, and the proceedings must then begin anew (Sec. 2367). They may also, by the same deed, agree that the Court may enter judgment upon the award of the arbitrators (Sec. 2366). No controversy can be submitted to arbitration where one of the parties is an infant or incompetent, or by rea- son of lunacy, idiocy or habitual drunkenness, or where the controversy arises respecting a claim to real property in fee or for life (Sec. 2365), except partition, adjust- ment of boundaries or admeasurement of dower (Sec. 2365). The persons designated as arbitrators appoint a time ARBITRATION. 107 and place for the hearing of the matter, giving due notice thereof to both parties (Sec. 2368). The arbitrators, having been first duly sworn (Sec. 2369), must all meet together to hear the evidence. They have the same power to compel attendance of witnesses, etc. (Sec. 2371), as a board authorized to hear evidence (Sec. 2370). Either party may, by a proper deed, revoke the sub- mission to arbitration at any time before the matter is submitted to the arbitrators for decision (Sec. 2383), but is liable to an action for all damages sustained by such revocation (Sec. 2384). ISTo agreed penalty or liquidated damages for the revocation of the submission will be permitted (Sec. 2385). The award must be in writing, signed and acknowl- edged as a deed by a majority of the arbitrators (Sec. 2371), and either filed in the office of the Clerk of the Court or delivered to one of the parties or to his attor- ney (Sec. 2372). Upon the award a motion may be made within one year to confirm the same and for judgment thereon (Sec. 2373). The opposing party within three months (Sec. 2376) may move (1) to vacate, or (2) to modify or correct, the award. The party may move to vacate on the ground that the award was procured by: 108 Abbitbation. (1) Fraud or corruption. (2) Partiality or corruption of arbitrators. (3) Misconduct of arbitrators in (a) Refusing to adjourn. (&) Refusing to hear proper evidence, etc. (4) That the arbitrators exceeded their powers. (5) That the arbitrators imperfectly executed their powers, and a mutual, final and definite award upon the subject matter submitted was not made (Sec. 2374). He may move to modify or correct the award, on the ground of: (1) Evident miscalculation of figures. (2) Evident mistake in description. (3) Award upon foreign subject matter. (4) Form of award imperfect (Sec. 2375). Upon the granting of an order confirming, modifying or correcting an award, judgment is entered in conform- ance therewith, with costs (See. 2387). The judgment roll is then prepared, consisting of (1) the deed of submission; (2) the appointment of the arbitrators; (3) the award; (4) motion papers to mod- ify award; (5) judgment entered on award (Sec. 2379). The judgment has then the effect of a judgment in an action (Sec. 2380), and may be enforced in the same way. Submission of Contboveksy. 109 CPIAPTEE VII. SUBMISSION OF CONTROVERSY. The parties to a question in difference, which might be the subject of an action, being of full age, may agree upon a case, containing a statement of the facts upon which the controversy depends; and may present a writ- ten submission thereof to a court of record which would have jurisdiction of an action brought from the same cause. The case must be accompanied with the affidavit of one of the parties to the effect that the controversy is real, and that the submission is made in good faith for the purpose of determining the rights of the parties. The submission must be acknowledged or proved and certified in like manner as a deed to be recorded in the county where it is filed (Sec. 1279). The case, submission and affidavit must be filed in the Clerk's office (Sec. 1280). The facts will be reviewed, upon appeal, by the Ap- pellate Division of the Supreme Court or by the General Term of the City Court of the City of New York. Costs are discretionary, and no provisional remedies will be granted (Sec. 1281). 110 Pbovisional Remedies. CHAPTER VIII. PROVISIONAL REMEDIES Provisional Remedies are proceedings commenced concurrently with an action for the purpose of prevent- ing a dishonest defendant from absconding, or from dis- posing of his property, or from wantonly injuring the same before a judgment can be obtained in an action. The provisional remedies are: (1) Order of Arrest. (2) Warrant of Attachment. (3) Temporary 'Injunction. (4) Receiver. Okder of Arrest. An order to arrest the defendant, pending suit, may be obtained, upon proper application to a Judge of the Court where the cause of action is brought, or from any County Judge (Sec. 556) where the action is brought for one of the following causes : (1) Tort to person or property. (2) Fraud and deceit. (3) Contract where fraud is alleged in the making thereof. Pro visional Remedies. Ill (4) Breach of contract to marry. (5) Embezzlement by one in a fiduciary capacity. (6) Misappropriation of public moneys by a public officer. (7) To recover a chattel fraudulently concealed from the Sheriff. (8) Neglect or misconduct in office, or in a professional employment. (9) Recovery of a fine or penalty. Also where: (10) Defendant is about to remove property with in- tent to defraud creditors, or (11) The judgment demanded in the action could only be enforced by contempt proceedings, and the de- fendant is a non-resident or is about to leave the State, so that such proceedings would be of no avail (Sec. 550). In this case the order must be obtained from the Court (Sec. 551). Where fraud is alleged it must be proved (Sec 549). Certain persons are exempt from arrest, viz. : (1) a woman, except for willful injury (Sec. 503) ; (2) an infant under fourteen years (Sec. 554) ; (3) a lunatic or an idiot; (4) one sued in a representative capacity (Sec. 555); (5) an officer of a court while in session (Sec. 565); (6) a party otherwise specially exempt (Sec. 564). 112 Peovisional Remedies. To obtain an order of arrest it is necessary to submit to a Judge: (1) An affidavit showing matter as above (Sec. 558). (2) An undertaking, as security for any damage which may be wrongfully sustained by the defendant (Sec. 559). (3) The proposed order of arrest. The order must be subscribed by the attorney and by the Judge. It must direct the Sheriff to arrest the de- fendant and hold him to bail (Sees. 561, 563). A copy of the order, affidavits and undertaking must be deliv- ered to the defendant, and the originals must be filed within ten days (Sec. 562). The defendant may move upon the original papers, or upon affidavits (Sec. 568), to (1) vacate the order; or (2) reduce the amount of bail; or (3) to increase the amount of security given by the plaintiff ; or he may give bail, and be released (Sees. 573, 567). His stay in jail cannot exceed six months where the action is for $500 or over, nor for more than three months where the sum is less. The action proceeds in the regular way. If judg- ment for the plaintiff is rendered, the defendant must pay the same or remain in jail; if the judgment is for the defendant, he is at once released, and may have an action for damages for false imprisonment against the plaintiff. Provisional Remedies. 113 Wakkant of Attachment. A warrant of attachment to attach the property of the defendant may be obtained where the cause of action is for money only and grows out of : (1) Breach of contract, express or implied, other than a contract to marry. (2) Wrongful injury to personal property. (3) An injury to person or property, in consequence of fraud, negligence or other wrongful act (Sec. 635). The plaintiff must prove by affidavit one of the above causes of action, and also that the defendant : (1) Is a foreign corporation. (2) Is a non-resident. (3) Is about to depart from the State with intent (a) to defraud creditors, or (b) to avoid service of a summons. (4) Is lying concealed within the State with like intent. (5) Is about to remove property from the State with like intent. (6) Is about to assign, dispose of or secrete his property with like intent. (7) Has made a false statement in writing as to his financial standing in order to obtain credit. (8) Has been out of the United States for six months, leaving no one in the United States to receive service in his behalf. 114 Provisional Remedies. If the action is to recover for breach of contract, the affidavit must show that plaintiff is entitled to recover the sum stated over and above all counterclaims known to plaintiff (Sec. 636). To obtain the order it is necessary to submit to the Judge of the Court, or to a County Judge, (1) an affi- davit as above; (2) an undertaking, in an amount not less than $250 (Sec. 640) ; (3) the proposed warrant. The warrant directs the Sheriff to attach and safely keep such property of the defendant within the State as will be sufficient to satisfy the claim of the plaintiff. The summons must be served within thirty days, or serv- ice by publication must be commenced, or the warrant fails and becomes of no effect. The object of an attachment is to secure property of the defendant out of which the judgment may be satis- fied when obtained. If the judgment is in favor of the plaintiff, the property is sold, and out of the proceeds the plaintiff's judgment is satisfied. If the judgment is for the defendant, the warrant falls, the property is returned, and the defendant may have an action of dam- ages against the plaintiff. The Sheriff may attach the following property: (1) Any alienable interest in real property (Sec. 645). (2) Any personal property not exempt from levy (Sec. 644). (3) An unpaid subscription to the capital stock of a Provisional Remedies. 115 foreign corporation, other than a United States corporation. (4) Any right or share in a corporation to which the de- fendant is entitled (Sec. 647). (5) Any chose in action founded on contract, including a note, bond, etc., negotiable or non-negotiable, due or not due (Sec. 648). The Sheriff may reduce a chose in action to possession (Sec. 655). A levy under a warrant of attachment must be made as follows : (1) Upon real property, by filing with the County Clerk a notice of the attachment. (2) Upon personal property, by taking into his posses- sion all movable property, and by serving a cer- tified copy of the warrant, etc., and a notice of the attachment upon the party holding any im- movable property. (3) Property recovered in an action brought by the Sheriff, by entering the judgment and proceed- ing to enforce it (Sec. 649). The Sheriff may require any debtor of the defendant to furnish a statement of the amount owing by him to the defendant, and may attach that amount. He may also require the head of a corporation to tell whether the defendant owns any shares of stock in the corpora- tion (Sec. 650). Special provisions of the Code cover matters relating to vessels (Sec. 652). 116 Peo visional Remedies. After a levy has been made under the warrant, but before the judgment in the action is obtained, the Sheriff may sell perishable property, and hold the proceeds therefrom. All non-perishable property he keeps until the outcome of the suit. If a third party claims the property the Sheriff must impanel a jury to try the matter. If the jury decides that the property belongs to the third party (as they invariably do) the Sheriff must turn over the property to such third party, unless an undertaking is given by the plaintiff to indemnify him. The defendant may move (1) to vacate the warrant, or (2) to modify the same, or (3) to increase the secur- ity given by the plaintiff, or (4) he may substitute a bond in the place of the goods (Sec. 688). Tempoeart Injunction. An order granting a temporary injunction staying the execution of some contemplated act may be obtained from the Court where: (1) The action is brought to finally enjoin some act, and loss may ensue before judgment is obtained, unless such act is meanwhile stayed (Sec. 603). (2) The defendant threatens to do an act which will destroy the subject matter of the suit. (3) The defendant is about to remove, dispose of or Provisional Remedies. 117 secrete his property with intent to defraud the plaintiff (See. 604). To obtain the injunction it is necessary to submit to a Judge of the Court: (1) An affidavit showing matters as above. (2) An undertaking (Sec. 620). (3) The proposed order of injunction. The injunction will be granted in the discretion of the Court, and with or without notice (Sec. 609). The party against whom the order is directed is en- joined from the time he hears of it. The order briefly recites the grounds for the injunction. It is served by delivering to the defendant a certified copy thereof, and the signature of the Judge must be exhibited to him (Sec. 610). The defendant may move to vacate or modify the in- junction order. He may have the order vacated by giv- ing an undertaking to indemnify the plaintiff, where the injury contemplated is not irreparable and can be compensated for in money (Sec. 629). Receiver. A Receiver is an officer of the Court appointed to take care of certain property. He will be appointed, upon notice to the adverse party (Sec. 714) : (1) Where the property in dispute is in possession of the adverse party, and there is danger that it will be lost, materially injured or destroyed. 118 Pkovisionax Remedies. (2) To preserve the property pending an appeal. (3) To carry a judgment into effect, or to dispose of the property according to its directions (Sec. 713). When the purpose for which he was appointed is ac- complished, he will he discharged on motion. This is in addition to the cases where the appointment of a Receiver is specially provided for hy law (Sec. 713). Writ of Eeplevin. 119 CHAPTEE IX. WRIT OF REPLEVIN. Aii action of replevin is an action brought to recover a chattel which is in the possession of the defendant. The plaintiff may cause the said chattel to be replevied (i. e., seized and returned to the plaintiff) by the Sheriff of the county wherein the chattel is found (Sec. 1694). This may be done at the time of issuing the summons, or at any time afterwards and before service of the de- fendant's answer. For that purpose the plaintiff must deliver to the Sheriff (1) an affidavit and (2) a written undertaking, with (3) a written requisition endorsed upon or annexed to the affidavit, and subscribed by his attorney, to the effect that the Sheriff is required to re- plevy the chattel therein described (Sec. 1694). The affidavit must describe the chattel (Sees. 1694, 1697), and must contain the following allegations: (1) That the plaintiff is the owner of the chattel, or is entitled to the possession thereof by virtue of a special property therein, the facts of which must be set forth; (2) that it is wrongfully detained by the defendant; (3) the alleged cause of the detention ; (4) that it has not been taken by vir- 120 Weit of Replevin. tue of a warrant, or under color of a warrant, against the plaintiff for the collection of a tax, assessment or fine (Sec. 1690) ; (5) that it has not been seized by virtue of an execution or war- rant of attachment against the property of the plaintiff (Sees. 1695, 1690). The affidavit may be made by the plaintiff, or by his attorney or agent if the material facts are within their personal knowledge, or if the plaintiff is not within the county (Sec. 1712). The undertaking must be executed by at least two sureties (who must be approved by the Sheriff) to the effect that the chattel will be returned if the possession of the same is adjudged to the defendant, and for the payment of any damages which the defendant may suffer (Sec. 1699). Upon receipt of these papers the Sheriff must forth- with replevy any chattel described in the affidavit found in the possession of the defendant (Sec. 1700). If the chattel is in an inclosure he may publicly de- mand the same, and if not then delivered may cause the inclosure to be broken open (Sec. 1701). If all of the chattels described are not found the Sheriff must replevy a smaller number (Sec. 1698). He may then, at any time before the service of the de- fendant's answer, make a further replevy (Sec. 1713). He must serve a copy of all papers upon the defendant Weit of Replevin. 121 if he be within the county; or, if he is not, then upon his agent; or, if neither can be found, by leaving the same at the usual place of abode of such defendant or agent, or with a person of suitable age and discretion (Sec. 1700). A Sheriff who has replevied a chattel must retain it in his possession until the person who is entitled to the possession thereof is ascertained (Sec. 1702). The defendant may have the chattel returned to him by serving a notice upon the Sheriff within three days after the chattel is replevied to the effect that he re- quires a return of the chattel replevied. He must, how- ever, then deliver to the Sheriff the following papers: (1) An affidavit, containing an allegation that the de- fendant is the owner of the chattel, or is law- fully entitled to the possession thereof by virtue of a special property therein, the facts with re- spect to which must be set forth. (2) An undertaking executed by two sureties to the effect that the chattel will be returned to the plaintiff if the possession of the same is ad- judged to him, and for the damages suffered by the plaintiff (Sec. 1704). The defendant must give notice to the plaintiff's at- torneys of the justification of the sureties within three days (Sec. 1704). 122 Wbit op Replevin. If the sureties properly justify, the chattel is deliv- ered back to the defendant (1705). The defendant may, instead of asking for the return of the chattel, and within three days after the replevy, serve a notice of exception to the sureties given by the plaintiff on his undertaking. These sureties must then justify within ten days (Sec. 1703), and, if they fail so to do, the chattel will be given back to the defendant (Sec. 1706). If the defendant does nothing, or if his sureties fail to justify, the chattel is delivered to the plaintiff, and he may retain it until final judgment is rendered in the action. When the Sheriff delivers the chattel to either party, he delivers to the adverse party the undertaking received by him from the party to whom the chattel ia given (Sec. 1708). The undertaking stands in the place of the chattel; thus both parties are protected. If he gives the chattel to either party without the con- sent of the other, except as aforesaid, he forfeits $250 and is liable for all damages (Sec. 1707). If a third party claims the chattel as against both the defendant and the plaintiff he my deliver to the Sheriff an affidavit stating that he makes such a claim (Sec. 1709). The Sheriff must then notify the plaintiff's attorney, and require that he furnish an additional undertaking Weit op Replevin. 123 to indemnify the Sheriff against the third party's claim. If such undertaking is not furnished, the chattel may be delivered to the third party (Sec. 1709). If the undertaking is given, and the chattel therefore is not delivered to the third party, such party may have his action against the Sheriff, but he must commence it within three months (Sec. 1710). The sureties on the undertaking are substituted in the place of the Sheriff upon such action. All papers must be filed by the Sheriff in the Clerk's Office within twenty days after delivery of the chattel by him (Sec. 1715). The plaintiff may proceed in his action and recover therein the chattel or its value, although he has not re- quired the Sheriff to replevy the chattel, or the Sheriff has not been able to replevy it (Sec. 1718). In the pleadings to this action a general allegation of title (Sec. 1720), or that the defendant wrongfully took the chattel (Sec. 1721), is sufficient without setting forth the facts. When a chattel has been replevied the defendant's at- torney may, within the time allowed for the service of a notice of trial, serve a notice that the defendant de- mands judgment for the return of the chattel or its value. Final judgment in his favor may then direct the return of the chattel (Sec. 1725). The verdict, report or decision in the action must fix the damages, if any, of the prevailing party. When the 124 Weit of Replevin. chattel is in the possession of the losing party, it must also fix the value of the same at the time of the trial (Sees. 1726, 1727). Final judgment for either party must award to him possession of the chattel with his damages, if any. If the chattel is in the possession of the losing party it must also award to the prevailing party the sum fixed as the value thereof, to be paid if the chattel is not delivered to the party (Sec. 1730). An execution for the delivery of the chattel may then be issued (Sec. 1731). If the execution is returned wholly or partly unsatisfied an action may be com- menced against the sureties upon the undertaking given by the losing party (Sees. 1733, 1734). State Weits. 125 OHAPTEE X. STATE WRITS. A State writ is a remedy employed only when no other remedy is available. It is a writ issuing under the seal of the Court (See. 1992), containing a demand that the person to whom it is directed furnish certain informa- tion to the Court, on a day certain, in relation to some matter therein described. The writs are obtainable from the Supreme Court, or a justice thereof. The justice allowing the same must endorse the allowance upon the writ (Sec. 1996). They are issued on behalf of the people of the State, upon application of the Attorney-General or District Attor- ney, or upon the application of some private person. If by a private person it must then appear that it was issued at the relation of such private person. The per- son to whom it is directed is styled the "defendant" (Sees. 1993, 1994). A State writ may be made returnable forthwith — i. e., within twenty-four hours — (Sec. 2006) or on a day cer- tain (Sec. 1998). It must be personally served in like manner as a summons issued out of the Supreme Court (Sec. 1999), except that a writ of Habeas Corpus must 126 State Writs. be served by an elector of the State, and when the prisoner is in the custody of a public officer, such officer's fees must be paid and a bond given for the safe return of the prisoner (Sec. 2000), unless the application is by hte District Attorney (Sec. 2002). A writ of Habeas Corpus may be served by leaving the same at the jail or dwelling house of the party if he cannot be found (Sec. 2003). The parties may appear in court by attorney ae in an action in the Supreme Court. The answer of the defendant is called a "return." It must be under his own hand. The people will be represented by the Attor- ney-General or by the District Attorney, unless the writ was obtained upon the relation (application) of some private person, when his attorney is deemed the attorney for the people (Sec. 1995). All the provisions of the Code relating to amendments, motions and intermediate orders in an action are applicable to similar acts in these proceedings, except where other provision is made or such provision is repugnant to the object of the State writ or the mode of procedure thereunder (Sec. 1997). The final determination of the rights of the parties is styled a "final order." For failure to pay costs awarded by a final order the party is liable to contempt proceed- ings (Sec. 2007). The following are the names of the State writs : (1) Habeas Corpus, to bring up a person to testify or answer. State Writs. 127 (2) Habeas Corpus, to inquire into the cause of de- tention. (3) Certiorari, for the same purpose. (4) Mandamus. (5) Prohibition. (6) Assessment of Damages (formerly writ of ad quod damnum) . (7) Certiorari, to review the determination of an in- ferior tribunal, called Writ of Keview (Sec. 1991). I The Weit of Habeas Corpus to Bring ttp a Pris- oner to Testify. This is used for the purpose of obtaining the attend- ance, at some trial, of a person held as a prisoner of the State. Any prisoner whose testimony is material or neces- sary may be brought up by this writ except (1) a prisoner sentenced to death, or (2) (unless the District Attorney makes the application on the trial of an indict- ment) a prisoner confined under a sentence for a felony ( Sec. 2011). The writ must be returnable in the county where the person is imprisoned (Sec. 2023). The officer to whom the writ is directed must produce the prisoner (Sec. 2014). When the testimony is taken the prisoner is remanded to prison (Sec. 2013). 128 State Weits. The Writ of Habeas Coepus and the Weit of Ceetioeaei to Inquibe into the Cause of Deten- tion are used for the purpose of compelling the captors or keepers of a person or prisoner to appear in court and show by what right the prisoner is restrained of his liberty. The writ of habeas corpus requires that the prisoner be produced in Court on the return day (Sec. 2021). The writ of certiorari is used where the alleged cause of detention is not bailable (Sec. 2041). Where the writ of certiorari is denied, or upon the return the prisoner is not dis- charged, the writ of habeas corpus issues as a matter of right (Sec. 2044). Any person restrained in his liberty may have either of these writs (Sec. 2015), un- less he is held by virtue of a mandate of a United States Court, where that Court has exclusive jurisdiction, or by virtue of a final judgment of a Court of competent jurisdiction, except in a proceeding to punish for con- tempt (Sec. 2016). The application for the writ must be made to a Jus- tice of the Supreme Court of the county where the pris- oner is detained, or to an adjoining county if he can not act. (Sec. 2018). It is made by a written petition signed by the prisoner or by some person in his behalf (Sec. 2017). The petition must be verified, and must state (1) that the person is restrained in his liberty, the place where, and the name of his keeper; (2) that State Weits. 129 he is not held by virtue of a judgment, etc. ; (3) the alleged cause of the detention ; (4) a copy of the man- date by which he is held, if any; (5) in what way the detention is illegal; (6) for which of the two writs ap- plication is made (Sec. 2019). The writ must be granted without delay or the Judge forfeits $1,000 (Sec. 2020). (For form of writs see Sections 2021, 2022.) These writs shall not be disobeyed on the ground of any defect of form (Sec. 2024). A writ must also be granted without application where any Justice of the Supreme Court has evidence in a judicial proceeding before him that any person is re- strained in his liberty within the State (Sec. 2025). The person to whom either writ has been served must state plainly in his return (1) whether he has or has had the prisoner tinder his custody; (2) why the prisoner is restrained; (3) why the prisoner was transferred from him if such is the case (Sec. 2026). The person to whom a writ of habeas corpus has been served must also produce the prisoner unless the prisoner is too sick ( Sec. 2027). If the party refuse to obey the writ a warrant of arrest will be issued and he will be kept in close custody until he will obey same (Sec. 2028). A party seeking to elude a writ is guilty of a misdemeanor (Sec. 2052). The Court must examine into the facts upon the return. The prisoner may deny any material allegation 130 State Weits. of the return. The evidence is taken in a summary way (Sees, 2039-2042). The Court then must make a final order (See. 2039) to discharge him therefrom if no legal cause exists for his detention (Sees. 2043, 2039), or to remand him (Sec. 2036). He may change his place of custody (Sec. 2037). Any one refusing to obey this order of discharge forfeits $250 (Sec. 2049). A prisoner once discharged shall not be again arrested for the same cause (Sec. 2050) under penalty of $1,250 Sec. 2051). If the prisoner is held by virtue of a man- date of a United States Court, where that Court has ex- clusive jurisdiction, or by virtue of a judgment of a Court of competent jurisdiction, or for a criminal con- tempt, he must be remanded, or discharged upon his giving bail, if the case is bailable (Sees. 2032, 2035). If it is a writ of certiorari and the offence appears bail- able, bail must be accepted (Sec. 2045). In a civil commitment the prisoner will be discharged if: (1) The jurisdiction of the Court has been exceeded. (2) Where commitment was legal, but party has since become entitled to a discharge. (3) Where the mandate is defective in substance. (4) Where the mandate was issued in a case not al- lowed by law. (5) When the keeper is not the keeper empowered by law. (6) When the mandate is not authorized (Sec. 2233). State Weits. 131 Eight days' notice of motion must be given to the District Attorney or to the party (in a civil case) who procured the commitment (Sec. 2038). If there is danger that the prisoner will be carried out of the State before a writ can help him, a warrant to the Sheriff to immediately produce the prisoner, and in some cases, to arrest his keeper, may be issued (Sees. 2054-2056). An appeal may be taken from an order refusing a writ, or refusing to discharge a prisoner. Where the appeal is by the people the discharge of the prisoner shall not be stayed (Sees. 2058, 2059). The final order remanding or discharging the prisoner may be discharged upon the prisoner furnishing bail to appear before the Appellate Division and abide by the judgment or order made upon the termination of the appeal, if the case is bailable (Sees. 2061, 2062). A Mandamus is a Writ or command issuing from a Court in the name of the State, directed to some person, Court, board or body requiring them to do some act which pertains to their office or duty. It is not resorted to if there is any other legal remedy which is compe- tent and specific. The writ is. either alternative or peremptory (Sec. 2067). The alternative writ is a command to do a certain act, or to show cause upon a certain day why it is not 132 State Weits. done. It is usually issued before a peremptory writ (Sec. 2070). Au alternative writ is granted upon affidavits showing proper cause therefor, with or without notice to the de- fendant, in the discretion of the Court (Sec. 2067). It is granted only at a Special Term of the Supreme Court within the judicial district (Sec. 2068) except where a writ is required to be directed against some Judge of the Supreme Court itself, when the application must be made to the Appellate Division (Sec. 2069). The alternative writ is served by showing the original to and leaving a copy of the same with the person to whom it is directed, or, if to a Court or board, to a ma- jority of the members composing it, or if the party can- not be found it may be served by any of the methods by which a summons may be served (Sec. 2071). An alternative writ is very much like a complaint in a regular action; and the statement contained therein of the facts constituting the grievance, the joinder therein of two or more such grievances, and the command of the writ are governed by the like provisions of the Code respecting a complaint (Sec. 2076). The defendant must within twenty days after service of the writ (Sec. 2072) demur to or answer the same. An answer to the writ is called the "return" (Sec 2076). Failure so to do is punishable by contempt pro- ceedings (Sec. 2073). State Wkits. 133 The demurrer and answer are governed by the same rules as govern such pleadings in a regular action (Sec. 2077). The people or the party plaintiff (called "relator") may demur to the answer (Sec. 2078). An issue of fact arises upon a denial contained in the return of a material allegation of the writ, or upon a material allegation of new matter contained in a return, unless a demurrer thereto is taken (Sec. 2079). Oral pleadings are abolished. The pleadings must be written, and are governed by the rules relating to pleadings in an action except that no verification is needed, and no amendment can be made, except upon special application to the Court. The pleadings are not served upon the adverse party, however, as in an action, but are filed in court (Sees. 2072-2074), and mere notice of filing is given. A demurrer, however, is served in the regular way (Sec. 2801). The defendant must make a return of some kind to the writ, or he may be punished for a contempt of court. Except as expressly prescribed, the proceedings after issue is joined are in all respects the same as in an action. The writ, return, and demurrer are deemed to be the pleadings, and the final order is deemed to be a final judgment, and may be entered, docketed and en- forced as a final judgment in an action with respect to such parts thereof as are not enforced by a peremptory 134 State Weits. mandamus (Sec. 2082). The trial must be by jury, unless the same is waived, or a Referee is directed by consent (Sec. 2083). The trial must be had in the county where the material fact took place (Sees. 2084, 2085). The relator may have his damage assessed upon the trial (Sec. 2088). The judgment roll consists of a certified copy of (1) the writ; (2) the return; (3) the final order or copies thereof (Sec. 2082). A peremptory writ is a final command to perform some act. This is only issued after the return of an alternative writ, as above, except where the applicant's right to the same depends upon questions of law only and notice of the motion has been given to the adverse party. It is returnable at a Special Term of the Court (Sees. 2072, 2074). The final order, if in favor of the applicant for the writ, must award a peremptory mandamus (Sec. 2082). Where a peremptory mandamus is awarded, directed to a public officer, board, or other body, commanding him or them to perform a public duty, enjoined upon them by special provision of law, if it appears to the Court that such party without just excuse, refuses or neglects to perform the duty so enjoined, the Court, be- sides awarding to the relator his damages and costs, may State Weits. 135 impose a fine upon such party not exceeding $250. An appeal from an order granting a peremptory writ may be taken to a higher Court. The provisions re- lating to appeal are about the same as upon an appeal in an action (Sec. 2087). A Writ of Prohibition is a writ directed to some inferior Court to restrain threatened abuse of juris- diction. The alternative writ is a writ directed to the Court in which, or to the Judge before whom, and also to the party in whose favor, the proceedings to be restrained were taken, or about to be taken. It is a command to the Court or Judge, and also to the party, to desist and refrain from any further proceedings in such action until the further directions of the Court issuing the writ, and also to show cause at the place where the writ is made returnable why they should not be absolutely restrained from any further proceedings in that action (Sec. 2094). The alternative writ may be granted upon affi- davits showing cause therefor, either with or without notice (Sec. 2091). Such writ is granted by the Special Term of the Court, except where it is directed against a Judge of the Supreme Court, when it is granted by the Appellate Division (Sees. 2092-2093). The writ need not contain any statement of facts or 136 State Writs. legal objections upon which the relator founds his claim for relief (Sec. 2094). The writ must be made returnable either forthwith (i. e., within twenty-four hours) or at a day certain before the Term which granted it, or on the first day of a future Term at which application for the writ might have been made (Sec. 2095). The return may be made by the Court to whom it is directed, or by the Judge, or by the party. If the party makes a return the Court must also make a return. If the Court makes a return, the party may adopt it as his own. The return must be delivered either in open court or filed with the Clerk (Sec. 2096). There are no pleadings. There is simply the writ and the return. The matter is decided upon affidavits or by a jury, in the discretion of the Court, in like man- ner as where an order is made for the trial of issues of fact in an action triable by the Court. It must be heard within the judicial district (Sec. 2099). A final order can be reviewed only by appeal (Sec. 2101). If decided in favor of the relator an absolute writ issues and the proceedings already had may be annulled. If decided against the relator, an order is made to pro- ceed with the matter (Sec. 2100). Costs may be awarded not to exceed $50 (Sec. 2100). State Weits. 137 A Weit of Assessment of Damages, formerly called ad quod damnum (Sec. 2103), is a writ directed to a Sheriff of the county where the real property is situ- ated (Sec. 2106), directing him to inquire by means of a Sheriff's jury whether the owners of certain real property therein described will sustain any damages by the State taking the same for the use of the people of the State; and, if so, the amount thereof (Sec. 2107). The writ is issued by the Special Term of the Supreme Court upon application therefor, whenever the Governor of the State is authorized to take possession of any real property, and he cannot agree with the owners for its purchase (Sec. 2104). The application is made in the name of the Governor, but by the Attorney General or District Attorney (Sec. 2105). The Sheriff must give notice of the time when and the place where the writ will be executed, by publish- ing the notice once in each week for three successive weeks in a newspaper printed in his county (Sec. 2108). The jury must view all the real property, and may hear such testimony as may be offered respecting the value (Sec. 2110). They must thereupon assess the damages and make an inquisition stating the sum to be paid by the State for taking the property. The Sheriff must file the inquisition and his return to the writ in the office of the Clerk of the county (Sec. 2111). If the jury disagree a new jury is taken. 138 State Weits. Within three months after such filing the Attorney General or the District Attorney must cause to be pub- lished a notice directed generally to all the owners of the property, requiring them to show cause at a Special Term of the Supreme Court why the inquisition should not be confirmed, or, if the Governor so directs, why it should not be set aside (Sec. 2112). The Court may set the inquisition aside and order a new writ to issue (Sec. 2113), or it may make an order that the State be entitled to the property upon paying into court the amount of damages assessed by the inquisition (Sec. 2114). When the money is paid the absolute property vests in the people of the State (Sec. 2116). If the owners do not claim the award it is invested for their benefit (Sec. 2117). If dispute arises as to proper owner of the award the Court has power to inquire into matter on motion (Sec. 2118). Whenever the United States takes property within the State by permission of the Legislature of the State, the proceedings are the same, but they are conducted by the attorney of the United States (Sec. 2119). A Writ of Ceetioeaei is a writ issued to review the determination of a body or officer (Sec. 2120). It can only be issued to review a final determination affecting rights of the parties, and only where such determination State Weits. 139 cannot adequately be reviewed by an appeal, or by a re- bearing (See. 2122). It must issue out of tbe Supreme Court (See. 2123), and at a Special Term or Appellate Division (Sec. 2127), and upon an affidavit or a verified petition (Sec. 2127). Tbe granting or refusal is in tbe discretion of tbe Judge. It must be served witbin four months after tbe determination becomes binding (Sec. 2125), unless tbe relator was insane, an infant, etc., wben tbe Appellate Division may grant tbe writ witbin twenty montbs (Sec. 2126). Tbe writ can only be granted where tbe statute expressly confers tbe right, or does not take away the c omm on law right (Sec. 2120). Any court of record having appellate powers may issue a writ to a body or officer whose proceedings are then under review, requiring them to perfect some de- fect in the papers before the Court, where such defect cannot be cured by motion (Sec. 2124). Eight days' notice of the application for the writ may be required in the discretion of the Court (Sec. 2128). The writ may be served personally upon the person to whom it is directed, or, if it is directed to a Court, it may be served by filing with the Clerk thereof (Sec. 2130). The writ must be made returnable within twenty 140 State Writs. days, and to the office of the Clerk of the county (Sec. 2132). The person to whom the writ is directed must make and annex to the writ a return, of the record or pro- ceedings required by the writ (Sec. 2134). If no re- turn is made the party may be punished for contempt, providing the proper fees were paid. If the return is defective, a further return may be ordered (Sec. 2135). The cause must be heard at a term of the Appellate Division of the Supreme Court ; either party may notice it for hearing. It can be heard upon the reviewing papers and return (Sec. 2138). The only questions to be determined upon the hearing are: (1) Had the body or officer jurisdiction of the sub- ject matter? (2) Had the authority conferred upon such body or officer been pursued in the mode required by law? (3) Has any rule of law been violated in making the determination? (4) Was there any compe- tent proof of all the material facts? (5) Was there such a preponderance of proof against any of these facts as would overturn the verdict were it rendered by a jury? (Sec. 2140). The Court may make a final order annulling or con- firming, wholly or partly, or modifying, the determina- tion reviewed, as to any or all of the parties (Sec. 2741). If the determination is annulled or modified it may di- rect restitution (Sec. 2142). State Writs. 141 The final order is entered in the Clerk's Office. The judgment roll consists of (1) the papers upon which the case was heard; (2) a certified copy of the final order and of (3) each order which in any way involves the merits (Sec. 2144). 142 Pboceedings in Sueeogate's Cottbt. CHAPTER XL PROCEEDINGS IN SURROGATE'S COURT. When a person dies the care and custody of his per- sonal estate, and the care of his infant children devolves upon the Surrogate's Court (Sec. 2472). There is such a court in each county of the State, but it is, in some instances, held by the county judge of the county (Sec. 2483). Each Court has exclusive jurisdiction : (1) Where decedent was a resident of the county. (2) Where decedent died in the county. (3) Where a decedent was a non-resident, and died out of the State, leaving personal property in the county. (4) Where decedent left real property in county •which passes under will, and no other Surrogate has taken jurisdiction. Each Court has concurrent jurisdiction where the de- cedent is a non-resident and property is situated in two or more counties. The first Court acquiring jurisdic- tion retains same (Sec. 2477). All proceedings in a Surrogate's Court are begun by the filing of a petition setting forth the facts and pray- Proceedings in Surrogate's Court. 143 ing for appropriate relief. A citation, which is an order to show cause, is then issued from the Court re- quiring all parties interested to appear on a certain day and argue the matter. Express provision is made for the method of service of citation (Sees. 2516-2524). The final determination is styled a final order or de- cree (Sec. 2551). Evidence is presented by affidavits unless a trial is ordered (Sees. 2539-2549). An appeal from the decree or final order lies to the Appellate Division of the de- partment (Sec. 2570). If the decedent leaves a will, this is deposited with the Surrogate with a petition for its probate, and an affi- davit, under the inheritance tax law, showing what part of the estate is liable to taxation (Sec. 2614). The Surrogate then issues a citation requiring all in- terested parties to show cause on a certain day why the will should not be admitted to probate (Sees. 2615- 2617). If no one objects, the witnesses to the will are ex- amined, and if the will has been properly executed, it is admitted to probate (Sees. 2618-2623), and Letters Tes- tamentary issue from the Court to the party nominated by the will as Executor. This qualifies him to act (Sees. 2636, 2590, 2613). If no one is nominated in the will, or such party is dead or refuses to act, another is appointed who is known as an Administrator with the 144 Peoceedings in Subeogate's Couet. will annexed. The Code provides the order in which the relatives shall be chosen for this position (Seca. 2639-2645). If objections to the probate are filed, a trial is had before the Surrogate. The will, when admitted to pro- bate, is recorded in books provided for that purpose, and the original will is returned to the executor after the expiration of one year (Sec. 2635). Probate may be revoked upon proof of the invalidity of the will (Sees. 2647-2653). If no will is left, an Administrator is appointed to care for the estate, in the same manner. (Sec. 2662). The Code provides as to who may be appointed such (Sees. 2660-2661). An Administrator must give a bond for the faithful performance of his duties (Sec. 2664) ; an Executor need not. When there is no one competent to act the County Treasurer or Public Ad- ministrator is appointed (Sec. 2665). Where delay occurs in the granting of letters, owing to a contest or other reason, a temporary Administra- tor will be appointed at the instance of a creditor of the estate, or other interested party (Sees. 2670-2686). Letters of Administration may be revoked for miscon- duct, etc. (Sees. 2684-2693). Where the will has been admitted to probate in an- other State or country, and letters have issued, and it becomes necessary, owing to the fact that property has Pboceedings est Stjeeogate's Coubt. 14:5 been discovered within this State, to have some one ap- pointed here with authority to act, the Court will, upon filing and recording the will and foreign letters, grant ancillary letters testamentary or ancillary letters of ad- ministration with the will annexed (Sees. 2694-2704). The first act of the Executor or Administrator should be to collect the assets of the estate, and to make and file an inventory of the same (Sees. 2711-2714). Apprai- sers will be appointed for that purpose. The Court will lend every aid for the collection of the estate (Sec. 2707). If an inventory is not filed, a creditor, or other interested party, may move to compel it (Sec. 2716). The next step is to ascertain the liabilities of the es- tate. Notice to creditors to present their claims is published for a period of six months (Sec. 2714). The debts must then be paid in the following order: (1) those entitled to preference under laws of United States; (2) taxes assessed in life time of decedent; (3) judgments of record; (4) all others (Sec. 2719). No legacies should be paid until one year has elapsed (Sees. 2721-2723). Personal property of the estate may be sold to pay the debts (Sec. 2717). If the personal estate is insufficient to pay the debts, provision is made for the sale of the real estate (Sec. 2749). When the estate is in presentable shape an ac- count should be filed. An intermediate account (show- 146 Proceedings in Surrogate's Court. ing how matters stand at that date) may be filed at any time (Sec. 2725). A final account may be filed at the expiration of one year (Sec. 2728). If the final account is correct it is "judicially settled and allowed." A decree is made directing the distri- bution of the estate in accordance with the provisions of the will, or if there is no will, then according to Sec- tion 2732. The Executor or Administrator is paid his commis- sion (Sec. 2730) and discharged (Sec. 2742). The Surrogate may compel an intermediate account when eighteen months have elapsed since the appoint- ment, or upon an application under Sections 1826, 1381, or 2722 (proceedings by creditors or legatees) (Sees. 2725-2727). The Surrogate may compel a final settlement: (1) when one year has elapsed; or (2) letters have been re- voked; or (3) when real estate has been sold pursuant to decree; or (4) where real estate or the rents thereof have been disposed of pursuant to will. A temporary Administrator may be compelled to ac- count at any time (Sees. 2726-2727). Provision is made for the revocation of Letters for malfeasance or other cause. Upon death or removal of first Executor, a second will be appointed, known as an "Administrator with the will annexed" (Sec. 2605). Proceedings in Surrogate's Court. 147 A second Administrator is known as an "Adminis- trator de bonus non." If the Administrator is false to his trust, or through negligence causes loss to the estate, his official bond may be prosecuted (Sec. 2596-2610). Infant children of decedents and their estates will be cared for by a general guardian appointed by the Surro- gate upon application. If the infant is over fourteen years of age, he may nominate his own guardian. In some cases the will nominates the guardian (Sec. 2851). Such general guardian will be under the supervision and control of the Surrogate, and must render accounts the same as an Executor (Sees. 2821-60). A Trustee appointed by a will is also under the con- trol and supervision of the Surrogate in the same man- ner (Sees. 2802, 2120). Where there is a dispute as to the identity of the heir, a proceeding may be brought before the Surrogate called "Probate of heirship." The decision of the Sur- rogate is only presumptive evidence of the facts, and the matter may be gone into again in an action in another, court (Sees. 2654-2659). 148 Fokeclosuke, on Real Peopebty. CHAPTER XII. FORECLOSURE OF MORTGAGE ON REAL PROPERTY. , A mortgage on real property may be foreclosed upon default in payment, etc., either (1) by advertisement; or (2) by action. The metbod by advertisement is practically obsolete (Sees. 2387-2409). Tbe proceedings by action are governed partly by the Code, partly by tbe general rules of practice, and partly by tbe unwritten customs which have grown up in the courts (Sees. 340, 473, 982, 1331, 1626-1637, 3252, 3254, 3297, 3307). The various steps in the proceeding are as follows : (1) Issue of summons against all parties adversely affected. (2) Issue of verified complaint describing property. setting up bond and mortgage, default in condi- tion, election to foreclose, etc. (3) Filing of lis pendens in County Clerk's office of county where property is situated. This is a notice to the world that the action is pend- ing. Future purchasers will be bound by the outcome of the action as though they were made parties to it. Foreclosure, on Real Property. 149 (4) Service of Summons and Complaint on all parties in the regular way. Formal parties need not be served with the complaint, but with a notice setting forth the object of the action, and that no personal claim is made against them. (5) Motion to Court for Order of Eeference to compute amount due. This must be accompanied by (a) copy summons and complaint; (o) affidavit of due service of the summons and complaint upon all parties, or their written admis- sion of service or notice of appearance in the action ; (c) affidavit of regularity by the attorney for plaintiff show- ing that that notice of lis pendens was duly filed, that matters have progressed in the regular way, and that all parties are before the Court and have defaulted in appearing, or have made no objection to the foreclosure. If any party does object to the foreclosure the matter proceeds to trial as in any other equity action, but usu- ally there is no defense. (6) Order of Reference to compute. This is an order of the Court directing that a Referee therein appointed take proof of the facts and compute the amount due on the bond and mortgage. Notice is given to all parties to the action who have demanded same, the Referee takes proof of the facts (generally an affidavit of the attorney is sufficient), computes amount due, &c, makes and files his report. 150 FoEECLOSUBE, ON REAL PbOPEBTY. A separate motion may be made for the confirmation of this report and for a final Decree of Foreclosure and Sale, but usually this is all provided for in the original notice of motion. (7) Decree of Foreclosure and Sale. This is a judgment, confirming the Referee's report, directing the sale, and providing for costs, etc. (8) Publish notice of sale once a week for six weeks in two newspapers published in the county, and post such notice in three public places in the county; usually in the Sheriff's office, County Clerk's office and City Hall. (9) Sale by Sheriff, or Eeferee appointed by the Court for that purpose. (10) Sheriff's, or Referee's deed to purchaser, payment of liens and costs provided for by the Decree, payment of amount due on mortgage, deposit of surplus, if any, and report of sale made and filed in County Clerk's office, together with receipts and affidavits of publishers' showing due publi- cation of notice of sale. FoEECXOSTJBE, ON B.EAL PbOPEBTY. 151 The foeegoing takes in ael of the Code except parts of Chapters 14, 15, 17, 19, 21 and 23, which, are of such a character that it was deemed inexpedient to in- sert them in this work. Chapters 14, 15 and 17 are very clear on the points to which they relate, but many of the subjects are treated in a more or less fragmentary manner. Chapter 19, on Justices, covers only a part of the sub- ject; Chapter 21, on costs, will be readily understood by the student; Chapter 23, on condemnation law, does not relate to the city and county of New York, and is only of particular application. FINIS. Brice's Bar Examination Questions. Edited by Wilson B. Beice, of the New York City Bar. This is a compilation of the questions asked at the New York State Bar Examinations since 1896, with Answers, Citations and Notes. It also contains Rules for Admission of Attorneys and Coun- sellors at Law, as amended and adopted by the Judges of the Court of Appeals. The Rules Regulating Law Examinations adopted by the State Board of Law Examiners. It is the very best law students' quiz, as it affords » general review of the New York Law, and also gives the student a line as to the , probable questions to be asked at the coming Bar Examination. Pingrey on Suretyship and Guaranty. By Darius H. Pingeey. The student will find that this treatise will serve him in the law school, and then in his practice ; having studied the work, he will know where to find the law, a knowl- edge of which distinguishes every great lawyer. Law sheep. Price $1^.25 delivered. From Judge JOHN F. DILLON, New York City. "I find that you have well classified and arranged this import- ant topic in our law, and that your treatment of the same, while concise, is systematic, accurate and comprehensive, and cannot fail to be useful to the profession.'' From ALFRED G. REEVES, New York Law School, New York City. "A careful examination of the book has convinced me that it is a, useful work upon the subject treated, and certainly more up to date than any other text book on that topic. I shall recommend it to the students of the New York Law School for reading and reference." From Hon. JAMES W. EATON, Albany Law School and Boston (Mass.) University. "I take pleasure in commending Mr. Pingrey's recent book on Suretyship and Guaranty, the advance sheets of which I have received. There has been great need of a book on this subject adapted to the use of the student as well as the general practi- tioner. This work seems to me to supply the want admirably. I have been especially interested in the chapter on the Statute of Frauds. The treatment of this vexed subject is clear, concise and very satisfactory. It should be of great assistance to the in- structor as well as the student. I hope the book will have the large sale it deserves." Fiero on Special Actions and Proceedings. Sec- ond Edition. By How. J. Newton Fieeo, Dean of the Albany Law School. Second Editions. Eleven years later. Entirely rewritten, rearranged, en- larged and brought down to date. These two standard and popular works have become a recog- nized authority on Practice for New York State on any of the 74- chapters treated. Two sets, four large volumes, sheep. Price $% %.00. Each chapter is a complete treatise, more thorough and ex- haustive than any local text book on that particular subject. The Forms are the most complete and authoritative to be found. All the Decisions have been cited and digested. Mr. Fiero has revised and rewritten, line by line, the entire work, bringing it down to date. No law library for New York State is complete without this standard work on Practice. Heydecker's General Laws of New York, The New Revision of the Statutes. To-day more than four-fifths of the Revised Statutes have been repealed by the enactment of the New Re- vision known as the General Laws. All the General Laws enacted are given in their regular chapter order, and it is now possible for the first time to examine the General Laws as a whole, and readily find the existing law on any of the subjects covered. 4- volumes, law sheep. Price $15.00 net. The following are some of the important chapters of the Gen- eral Laws of New York which must now be cited Genebal Laws: General Municipal Law, County Law, Highway Law, Town Law, Village Law, Tax Law, Public Health Law, Poor Law, Insanity Law, Liquor Tax Law, Forest, Fish and Game Law, Labor Law, Agricultural Law, General Corporation Law, Stock Corporation Law, Banking Law, Insurance Law, Railroad Law, Transportation Corp. Law, Business Corporation Law, Religious Corporation Law, Membership Corporation Law, Benevolent Orders Law, Joint Stock Association Law, Real Property Law, Personal Property Law, Domestic Relations Law, Lien Law, Negotiable Instruments Law, Partnership Law. Collier on Bankruptcy. 3rd Edition. This new third edition is more than a year later than any other work on the subject. When the original edition was published there were no de- cisions wider the Act of 1898. This edition is the only treatise that gives them all. It is pre- eminently the leading work, having been com- mended and cited by all the Federal Courts. Law sheep. Price $6.30 delivered. Judge ADDISON BROWN, U. S. District Court, New York City. "The third edition of Collier's excellent work on the Bank- ruptcy Act of 1898, supplies a want very greatly needed. Mr. Eaton's complete revision with references to all the decisions down to and including 1900, giving the adjudications up to that date on the many controverted and embarrassing questions arising out of the Act, make it a most convenient and indispensable man- ual of practice." Judge ALFRED C. COXE, TJ. S. District Court, Utica, N. Y. "The book is almost indispensable to a practitioner in Bank- ruptcy." Judge MOSES HALLETT, U. S. District Court, Denver, Col. "I regard the work as the best exposition of the new act, and I believe that it will be very useful in the court room." Smith on Chattel Mortgages and Conditional Sales. 3rd Edition. This standard work was first published in 1889 ; an enlarged edition was brought out in 1895, and now a third edition is presented in the belief that it is as necessary and will be as favorably received as have been the first and second editions. Laiv sheep. Price $2.50. This branch of law is one unusually vexing and puzzling to the practitioner. The decisions are numerous; the rules of law to be applied are few and comparatively simple, but the variations in the applica- tions of these rules to the different eases is so wide and divergent as to be puzzling and disheartening to the practitioner when un- aided by such a work as this. This Third Edition has been entirely rewritten and made from new plates. All the decisions have been examined and digested, and the practitioner now has before him the law of this State upon this subject, carefully classified, grouped and indexed. Forms, Table of Cases and » chapter on the effect of the Bank- ruptcy Act are included. Gilbert on Domestic Relations. By Frank B. G-ilbebt, author of ' ' Town and County Officers' Manual," "Poor Law," "Vil- lage Law," etc. The Domestic Relations Law for the State of New York, including the Law of Marriage, Di- vorce and Separation ; the Rights and Liabilities of Husband and Wife ; the Right of Dower, and Actions for Dower ; the Custody and Usages of Children; the Law Relating to Guardian and Ward, and the Adoption of Children. Price $2.50 net. The book has been adopted in several of the Law Schools of New York State, and is the most practical work on the subject. "A work of this kind is always Welcome to the profession. The practice in actions for divorce, separation, etc., as prescribed by the Code of Civil Procedure and the Supreme Court rules, is given in full, with exhaustive annotations; all the leading cases relating to these actions are cited and discussed. The dower rights of married women and the statutory law pre- scribing the powers and duties of guardians are fully treated of, and the citation of authorities is numerous. The author has collated all the statutes of the State relating to the subjects embraced in the work, and has cited all the im- portant court decisions bearing upon the statutes. The book is a credit to the author and publisher." — The American Lawyer. You Should Not. By Samuel H. Wandell of the New York Bar. A book for lawyers, old and young,. containing the elements of legal ethics. It is a handsome little volume, bound in attractive style. Price $1.00. It presents the much-neglected subject of Legal Ethics in a concise, novel and attractive form. It contains wise maxims and precepts which should be applied to your every-day life. It teaches you to be honorable and upright in all the relations of life, to deal justly by your clients and to be courteous and charitable towards your professional brethren. It shows the mistakes often made by lawyers when entering the bar, and tells what should be avoided if you desire to stand well in your profession. It is a code of "danger signals" for lawyers of all ages, show- ing the pitfalls and quagmires into which so many have fallen. It gives advice about "Yourself," "Your Business," "Your Office," "Your Clients," "Your Fees," "Your Associations," "Your Morals," and "Your Health." It tells you how to conduct yourself in court so as to make a favorable impression upon the judge and the jury; how to exam- ine and cross-examine witnesses; how to deal with adverse and unwilling witnesses; how to win your case without resorting to the tricks of the "pettifogger." It bristles with spicy pages, showing the weakness and foibles of lawyers, the errors of judgment and fatal mistakes of the prac- titioner, and warns you of the rocks and breakers which may wreck your craft in the stormy seas of professional life. It aims to educate the members of the bar, to encourage them to attain to high ideals and to show the disreputable practices which have so often brought odium and disgrace upon the pro- fession. It tells you what you should not do, points out the way to become a successful lawyer, an esteemed member of society, and to preserve a spotless reputation. The Negotiable Instruments Law. Edited by James W. Eaton, Instructor on Bills and Notes in the Albany Law School, and H. Noybs Greene. It is based upon the Negotiable Instruments Law as enacted in New York, Con- necticut, Colorado, Florida, Maryland, Massachu- setts and Virginia, and submitted for enactment in the other States by the Commissioners on Uni- formity of Laws. Price $1.50. Mr. Eaton's position as instructor on the subject at the Albany Law School has enabled him to make without any question the best text book for law school work on the Negotiable Instruments law. This edition, fully annotated, gives all the law and shows the judicial application given to the rules which are codified in the statute. It shows all the changes made in the Law of Negotiable Instru- ments as heretofore understood. It also contains a chapter on the Usury Law. CUTHBERT W. POUND, College of Law, Cornell Univebsitt. "The edition is an excellent one, well fitted to meet the wants of the law student and the profession." Judge CHESTER C. COLE, Dean Iowa College op Law. "I have examined the book with much interest and profit, and shall use it in my teaching of Negotiable Instruments, which topic I have taught for very many years." Wi .<'"■':■ iW-i r - ■■' •■•"v'v: ;;;;;;; llil mm