SITS Cornell University Law Library THE GIFT OF Professor Arthiir E. Sutherland, Jr, Cornell Law School DateApr.ll....26.,..,.19.4.8. j>fJU^ C w^ ly^.i^—.^'^i''"*" University Library KFN5975.B35 1921 ^'"■Mi'miitete,?' ""anual of civil and c 3 1924 022 786 523 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022786523 BOOKS FOR THE JUSTICE OF THE PEACE Bender's Justices' Manual . . . $10.00 Bender's Manual (For Supervisors, Town and County Officers) . . 12.00 Bender's Penal Law and Criminal Code 7.50 Bender's Tax Book for Collection of School Districts .... 1.00 Bender's Village Laws . . 6.50 Chamberlayne's^Hand Book on Evi- dence 10.00 Finegan's School Law . . 2.00 Gilbert's Annotated Criminal Code and Penal Law .... 15.00 Griffin & Curtis on Chattel Mortgages and Conditional .Sales . . . 3.50 Huddy on Law of Automobiles . 7.50 Jewett's Election Manual (buckram) 6.00 Parsons' Practice Manual . . 9.00 Skinner's Notaries' Manual . . 2.50 Tax Law of New York . . 3.00 For Sale by all Law Book Dealers or the Publishers Matthew Bender & Company Incorporated Albany, N. Y. BENDER'S JUSTICES' MANUAL OF CIVIL AND CRIMINAL LAW AND PRACTICE FOR JUSTICES OF THE PEACE AND POLICE JUSTICES IN THE STATE OF NEW YORK WITH COMPLETE FORMS UDDKH 'I'iia CONSOLIDATED LAWS, PENAL LAW, JUSTICE COURT ACT AND CODE OF CRIMINAL PROCEDURE AS AMENDED TO SEPTEMBER 1. 1921. COMPILED AND EDITIllD BY EDWIN ^YLIES or THE JOHNSTOWK BAB EDITOB OP WAIT'S LAW AND PKACTICB, 7TH EDITION, AND AUTHOR OF " CODR PLEADING," "NEW TRIALS AND APPEALS," ''TRIAL PRACTICB " FIFTH EDITION AETHUE F. CUETIS, OF THE Delaware Countt Bab ALBANY, N. Y. MATTHEW BENDER & COMPANY INCOBPOEATED 1921 S 6 F^ 3^ Copyright, 1909 Bt MATTHEW BENDER & COMPANY Copyright, 1911 BY MATTHEW BENDER & COMPANY Copyright, 1913 By MATTHEW BENDER & COMPANY Copyright, 1920 By MATTHEW BENDER & COMPANY Incorporated Copyright, 1931 Bx MATTHEW BENDER & COMPANY Incorporated 46 Second Printing INTRODUCTION TO FIFTH EDITION The JiiBtice Court Act of 1921 makes necessary this New Edition of BENDEK'S JUSTICES' MANUAL. The Legislature has made a new venture in defining the prac- tice of Justices of the Peace by the Justice Court Act of 1931. Heretofore the practice in Justices' Courts has been a part of the Code of Civil Procedure. In 1920 the Legislature made a revision of civil practice of the various courts, and enacted a Justice Court Act which goes into effect October 1, 1921. This act is printed in full in this work, together with many other statutes which are useful to Justices of the Peace. It also made necessary many other changes in the book. The repeal of the Code of Civil Procedure makes obsolete former works for Justices of the Peace. Hence this New Edition. AKTHUE F. CUETIS. Delhi, N. Y., September 1, 1921. INTRODUCTION TO FOURTH EDITION. The lapse of six years since the publication of the Third Edition of BENDEK'S JUSTICES' MANUAL has afforded abundant opportunity for the Legislature to make many amendments and additions to the statutes which are frequently applied by justices of the peace. While making the changes which were strictly essential, it has been thought wise to give the entire work a general revision. The complete General Highway Traffic Law has been added. The chapters on Contracts, Chattel Mortgages, Sales, Contracts and Evidence, have received particular attention. AETHUE F. CUETIS. Delhi, N. Y., December 15, 1919. INTRODUCTION TO THIRD EDITION^ REVISED REPRINT Many changes in the Codes and Consolidated Laws and the demand for an up-to-date Justices' Manual have made a third edition of this work indispensable. Among the more important changes is an amendment to sec- tions 3047 and 3048 of the Code of Civil Procedure providing for the service of a notice of appeal by mail. This revision has been carefully made, and it is hoped that it will meet with the same approval as former editions. AUSTIN B. GKIFFIN. Sept. 6. 1913. INTRODUCTION TO SECOND EDITION. REVISED REPRINT. Since this work was originally published in 1909, many changes iiave been made in the codes and in the Consolidated Laws. In the interval of two years the Legislature has changed the entire Motor Vehicle Law and has codified the law of sales and war- ranties. Many other changes of minor importance might be men- tioned, such as the change of the trial fee of a justice of the peace from seventy-five cents to a dollar and fifty cents per day. The revisers have used great care to attain accuracy in the work and trust that it will meet the same approval of the legal profession that the original edition received and that justices of the peace will find it equally practical. AUSTIN B. GRIFFIN, ARTHUR F. CURTIS. Delhi, N. Y., September 6, 1911. PREFACE. This volume is intended primarily for the use of Justices of the Peace and Police Justices and others having professional business in courts held by those judicial officers. It contains a statement of the leading principals of the law relating to such civil actions as are usually litigated in a Justice's Court, and of the rules of practice, pleadings and evidence, and the forms of procedure therein. It also treats of the special proceedings of which a Justice of the Peace has exclusive jurisdiction, and also of others in which his jurisdiction is merely concurrent. It contains all the provisions of the Code of Civil Pro- cedure applicable to Justices' Courts and such provisions of the Con- solidated Laws, adopted by the Legislature during the present year, as were deemed most likely to be of use in such courts. It also contains all of the Penal Law of this State, supplemented by copious citations prepared by an experienced law writer, a member of the Albany bar ; all the provisions of the Code of Criminal Procedure applicable to proceedings before magistrates or to trials in Courts of Special Sessions or Police Courts; and the forms incidental to such proceedings or trials. The outlines of civil and criminal procedure given in Parts One and Three are designed to present in condensed form a statement of the several consecutive steps in civil and criminal actions or proceedings, with references to the corresponding sections of the civil or criminal Code; the decisions of the courts construing those sections; and the forms applicable to the subject-matter treated. It will be noticed that some of the sections of the Code of Civil Procedure given herein have apparent reference to procedure in courts "if record only. Such sections are in fact made applicable to proceed- ings in Justices' Courts by other sections of that act, subject to speci- fied limitations, and to the qualifications mentioned in section 3134 of the Code. It will also be noticed that certain provisions of the Code of Crim- inal Procedure apparently apply only to proceedings incident to thp u'ial of indictments but are made applicable to trials in Courts of vii PliEFACE. Special Sessions and Police Courts by directing the substitution of the ■word " information " in place of the word " indictment." The several indexes contained in this volume are intended for use, and have been prepared with no little care with the view of making every part of the volume available. Por any error or omission in the book the editor assumes responsibility; but not for failure to find subject matter therein stated. The subjects treated in this volume cover a broad field and for that reason could not be treated exhaustively, but it is the hope of the editor that those into whose hands it may come will be lenient in criticism, and that enough may be found stated to be of practical use to the incumbents of an office designed, as stated by an eminent jurist, " to bring the doors of justice near to the homes of the people." Johnstown, N. Y., November, 1909. EDWIN BAYLIES. TABLE OF CONTENTS. PAET I. CIVIL ACTIONS EIGHTS OP ACTION SPECIAL PEOCEEDINGS. PAGE Ohaptee I. — The ofSoe of Justice of the Peace 1—6 Chaptee II. — Jurisdiction of Justices' Courts in civil actions 7-25 Chaptee III. — Jurisdiction in special proceedings. . . . 26-29 Chaptee IV. — Contracts, and rights and remedies of the parties 30-57 Chaptee V. — 'Special contracts to labor 58-66 Chaptee VI. — Sales and warranties 67-104 'Chapter VII. — Negotiable instruments 105-111 Chaptee VIII. — Mechanic's liens 111-132 Chaptee IX. — Chattel mortgages 132-190 Chaptee X. — ^Motor vehicles 191-216b Chaptee XI. — Lavf of the road and other miscellaneous provisions relating to highways 217-233 Chaptee XII. — Torts or wrongs, and right of action arising therefrom 234-249 Chaptee XIII. — Evidence 250-283 Chaptee XIV. — Procedure in actions generally 284-322 Chaptee XV. — Foreclosure of mechanic's liens 323-328 Chaptee XVI. — Foreclosure of liens upon a chattel. . . 329-333 Chaptee XVII. — Summary proceedings to recover pos- session of real property .->... 334-341 Chaptee XVIII. — Proceedings against strays upon highways 342-344 Chaptee XIX. — ^Appeals 345-355 PAET II. Justice Couet Act 357-457 Peovibions or Civil Peactice Act Applicable to Justices' Couets 458-476d FoEMB 479-529 viii ix . TABLE OF CONTENTS. PAET III. CEIMINAL ACTIONS AND PEOCEEDIWGS PAGE CriAPTEE 1 631—558 PAET IV. Code of Ceiminal Peocedueb 559-682 FoEMs 685-^34 PAET y. Penal Law. ._.....-. 1-540 LAW AND PRACTICE FOR JUSTICES OF THE PEACE AND POLICE JUSTICES. PART I. Civil Actions — Rights of Action — Special Proceedings. OHAPTEK I. THE OFFICE OF JUSTICE OF THE PEACE. Section 1. Origin and nature of office. 2. Constitutional provisions. 3. Election of justices of peace. 4. Undertaking and oath. 6. Court room. 6. Proceedings to be public. 7. Court not to sit on Sunday. 8. Justice as a town officer. 9. Justice as an acting coroner. § 1. Origin and nature of office. The office of justice of the peace came down to us from remote times. It existed in England before the discovery of America, and it has existed here practically during our entire history, both colonial and State, at first "with criminal jurisdiction only, but for more than two centuries past with civil jurisdiction also. It exists in every State of the Union and is regarded as of great importance to the people at large, as it opens the doors of justice near their own homes, and not only affords a cheap and speedy remedy for minor grievances as to rights of property, but also renders substantial aid in the prevention and punishment of crime. The oifice as it now exists in towns, was established by the Constitution, which does not in express terms say what a justice of the peace shall be. As, however, the office was well known when the Constitution was adopted, it is presumed that the framers thereof and the people meant to establish it as an office with such civil and criminal jurisdiction, within the limita- tions of that instrument, as the Legislature saw fit to confer upon it. As 1 2 CIVIL LAW AND PKACTICE. it always had criminal jurisdiction, and was an existing office with such jurisdiction when each Constitution was adopted, it is at least doubtful whether the Legislature has any power to deprive it of criminal jurisdiction altogether, since that would tend to partially abolish the office as it had been known from time out of mind. It is beyond the power of the Legis- lature, by direct legislation, to abolish the office of justice of the peace in towns, cr shorten their terms of office £0 long as the town exists. Not only is the office itself placed beyond the reach of hostile legislation, but also the term thereof, the method of filling it, and, by implication, the method of removing an incumbent. A justice of the peace in towns, therefore, may be defined as a constitutional judge elected by the people for a fixed term, protected from removal except by a judicial tribunal, on notice and for cause, with civil jurisdiction in most actions where the sum claimed does not exceed two hundred dollars, and with criminal jurisdiction to appre- hend and commit for all crimes, and to try and convict in cases of misde- meanor. {People ex rel. Burby v. Rowland, 155 IST. Y. 270.) § 2. Constitutional provisions. Section 17 of Article VI of the Constitution of the State of New York provides as follows : " The electors of the several towns shall, at their annual town meetings, or at such other time and in such manner as the Legislature may direct, elect Justices of the Peacej whose term of office shall be four years. In case of an election to fill a vacancy occurring before the expiration of a full term, they shall hold for the residue of the unexpired term. Their number and classification may be regulated by law. Justices of the Peace and judges or justices of inferior courts not of record, and their clerks may be removed for cause, after due notice and an opportunity of being heard, by such courts as may be prescribed by law. Justices of the Peace and District Court Justices may be elected in the different cities of this State in such manr.er, and with such powers, and for such terms, respectively, as are or shall be prescribed by law ; all other judicial officers in cities, whose election or appointment is not otherwise provided for in this article, shall be chosen by the electors of such cities, or appointed by some local authorities thereof." Section 18 of Article VI of the Constitution further provides as follows : " Inferior local courts of civil and criminal jurisdiction may be established by the Legislature, but no inferior local court hereafter created shall be a court of record. The Legislature shall not hereafter confer upon any inferior or local court of its creation any equity jurisdiction or any g-reater jurisdiction in other respects than is conferred upon County Courts by or under this article. Except as herein otherwise provided, all judicial OFFICE OF JUSTICE OF THE PEACE. 3 officers shall be elected or appointed at such times and in such manner as the Legislature may direct." A justice of the peace elected by a city, is a city officer, and the Legis- lature may provide his method of election and fix his term of office; but a justice of the peace of a town is a town officer whose election and term of office are fixed by the Constitution. (Ziegler v. Corwin, 12 App. Div. 60, 42 K". Y. Supp. 855.) But while the Constitution provides that towns shall elect justices of the peace whose terms shall continue for four years, there is nothing in this provision that requires the indefinite preservation and perpetuation of town, organizations, to enable such officers to serve out their terms, or forbids a change of local government, if, in the judgment of the Legislature, the welfare and prosperity of the community requires it. {Matter of Gertum v. Board of Supervisors, 109 IST. Y. 170.) § 3. Election of justices of peace. The Legislature has provided that there shall be elected at the biennial town meeting in each town, by ballot, two justices of the peace. (Town Law, § 80.) A justice can be elected only at a biennial town meeting according to the town law. (People ex rel. Lyon v. Wallin, 141 App. Div. 34, 125 N. Y. Supp. 513.) This town meeting is held biennially on the second Tuesday of February (Id., § 40), unless the town has changed the date of its town meeting to the first Tuesday after the first Monday in Ifovember, known as general election day, by adopting a proposition therefor at a regular town meeting. (Id., § 41.) A full statement of the statutory provisions respecting the time and place of holding town meetings and the mode of electing town officers will be found in Jewett's Election Manual. Vacancies in the office of justice of the peace are filled at the time of holding the biennial town meeting. (Town Law, § 44.) The statute further provides as follows: "There shall be four justices of the peace in each town, divided into two classes, two of whom shall be elected biennially. Such justices shall hold office for a term of four years commencing on the first day of January succeeding their election. In each county in the state having within its boundaries a city having a popu- lation of not less than three hundred thousand and not more than four hun- dred thousand, according to the last federal enumeration, the justices of the peace heretofore elected shall hold their offices for the terms for which they were respectively elected, but, except as hereinafter provided, no suc- cessors to them shall be elected. In each of said counties there shall be elected at the biennial town meeting in nineteen hundred and three, two 4 CIVIL LAW AND PEACTICE. justices of the peace wliose terms of office -shall begin on the first day- of January succeeding their election, and who shall hold office for the term of four years. At the biennial town meeting in each of said counties held in nineteen hundred and five, there shall be elected two justices of the peace whose terms of office shall begin January first, succeeding their election, and who shall hold office for four years. At each biennial town meeting thereafter, there shall be elected two justices of the peace for the full term of four years commencing on the first day of January succeeding the town meeting." (Town Law, § 103.) " If there be one or more justices of the peace residing in a new town, when erected, they shall be deemed justices of the peace thereof, and shall hold their offices according to their respective classes ; and only so many shall be elected as shall be necessary to complete the number of four for the town." (Id., § 104.) " If by the erection of a new town, or the annexation of a part of one town to another, there shall at any time be more than four justices of the peace residing in any town, they shall hold and exercise their offices in the town in which they reside, according to their classes respectively ; but on the expiration of the term of office of two or more justices, being in the same class, only one person shall be elected to fill the vacancy in that class. Whenever by the erection of a new town, or the annexation of a part of one town to another, any town shall be deprived of one or more justices of the peace, by their residence being within the part set off, the inhabitants of such town shall, at its next annual town meeting, supply the vacancy so produced in the classes to which such justices belong." (Id., § 105.) Special provisions are inade for town meetings in counties of between one hundred and twenty thousand and one hundred and thirty thousand inhabitants (Id., §§ 550-552) ; for town meetings in counties of between seventy-one thousand and seventy-five thousand inhabitants (Id., §§ 560- 563) ; for town, meetings in counties of between fifty thousand and fifty- four thousand inhabitants (Id., §§ 570-574) ; for tovm meetings in the counties of Rockland, Orange and Sullivan (Id., §§ 580-584) ; for town meetings in Suffolk county (Id., § 589) ; for town meetings in Ontario county (Id., §§ 590-603) ; for town meetings in Chenango county (Id., § 589-a), and for town meetings in Cortland county (Id., § 589-b). § 4. Undertaking and oath. " Every justice of the peace elected or appointed in any of the towns or cities of this state, except the city of New York and any city whose charter requires such officer to give a bond or undertaking, shall, before he enters upon the duties of his office, execute an undertaking with two sureties to be approved by the supervisor of the town, or the town clerk thereof, where OFFICE OF JUSTICE OF THE PEACE. 5 the justice of the peace is also supervisor of the town, or the common council of the city in which the justice shall reside, to the effect that he will pay over on demand, to the officer, person or persons entitled to the same, all moneys received by him by virtue of his office, and file the undertaking in the office of the clerk of the city or town in which he resides. Every justice shall also, on or before the fifteenth day of January next succeeding his election, file with the county clerk a certificate of the clerk of the city or town in which he resides, that he has filed such undertaking. Such justice of the peace shall take and subscribe before some officer authorized by law to administer oaths in his county, the constitutional oath of office, upon blanks to be furnished by the county clerk. Such oath shall be in duplicate, one of which shall be filed in the office of the county clerk and one in the office of the town clerk. If elected or appointed to fill a vacancy, at the time existing, or in any new town, he shall file such undertaking and certificate and take the oath of office, and enter upon the duties thereof, within fifteen days after notice of his election or appointment. No justice of the peace shall take his oath of office until he shall have filed such certificate with the county clerk." (Town Law, § 106. And see Public Officers' Law, §§ 10-15 ; Jewett's Election Manual.) § 5, Court room. Section 135 of the Town Law provides that the town boards in any town in a county adjoining or containing a city of the first or second class may from time to time lease buildings or parts of buildings in any portion of said town for the use of justices of the peace of said town to hold court therein. This provision, however, has a limited territorial application and does not cover the case of the large majority of the justices, and there seems to be no other statute providing for a court room for justices of the peace. Except in case of a justice residing in a village located in two or more adjoining towns, he must hold his court within the town or city where he has jurisdiction (Just. Ct. Act, § 10), and he must not hold it in a room in any part of which trafficking in liquors is authorized or in any adjoining room. (Just. Ct. Act, § 11). § 6. Proceedings to be public. The sittings of every court within the state are .public, and every citizen may freely attend the same, except that in all proceedings and trials in cases for divorce, on account of adultery, seduction, abortion, rape, assault with intent to commit rape, criminal conversation, and bastardy, the court may, in its discretion, exclude therefrom all persons who are not directly 6 CIVIL LAW AND PKACTICE. interested therein, excepting jurors, witnesses, and officers of the court. (Judiciary Law, § 4.) § 7. Court not to sit on Sunday. As a general rule a court shall not be opened or transact any business on a Sunday, but it may receive a verdict or discharge a jury on that day. An adjournment of court on Saturday, unless made after a cause has been committed to a jury, must be to some other day than Sunday. But this general doctrine does not prevent the exercise of the jurisdiction of a magistrate, where it is necessary to preserve the peace, or, in a criminal case, to arrest, commit or discharge a person charged with an offense. (Judiciary Law, § 5.) § 8. Justice as a tovtrn officer. / As a member of the tovm board a justice of the peace has many im- portant duties to perform, especially in towns in which a board of towu auditors has not been established. The justice of the peace of each tovra is required to attend every town meeting held therein, except where such town meetings are held at the time of the general elections, and such of them as are present must preside at such meeting, and see that the same is orderly and regularly conducted and the justice or justices so presiding have like authority to preserve order, to enforce obedience and to commit for disorderly conduct, as is possessed by the board of inspectors at a general election. (Town Law, §49.) § 9. Justice as an acting coroner. In case the attendance of a coroner cannot be procured within twelve hours after the discovery of a dead body, upon which an inquest is required to be held, a justice of the peace is authorized to hold an inquiry thereon in the same manner and with the like force and effect as a coroner. If the cause of death is not apparent, it is the duty of the justice to associate himself with a regularly licensed physician, to make a suitable examination for the discovery of the cause of death. A justice holding such an inquest is entitled to the same fees as are allowed to coroners. (Code of Grim. Pro., § 789-a.) JUKISDICTION" IN" CIVIL ACTIONS. CHAPTEK II. JTTBISDICTION OF JUSTICES' COUKTS IN CIVIL ACTIONS. Sbotion 1. Jurisdiction defined. 2. Justice's jurisdiction is limited. 3. Effect of lack of jurisdiction. 4. Error in exercising jurisdiction ia not a lack of jurisdiction. 5. When question of jurisdiction to be determined. 6. Jurisdiction of persons by voluntary appearance. 7. Objections to illegal service of summons may be raised on appeal. 8. When justice disqualified. 9. Distinction between jurisdiction of justice of peace of town and justice of peace of a village or city. 10. Extent of jurisdiction of justice. 11. Jurisdiction as limited by nature of action; statutory provisione. 12. Jurisdiction in contract actions. 13. Jurisdiction in actions for personal injuries. 14. Jurisdiction of •action to recover chattels. 15. Jurisdiction of action for fine or penalty. 16. Jurisdiction in equitable actions. 17. Jurisdiction in matters of account. 18. Jurisdiction of actions against executors or administrators on rejected claim. 19. Jurisdiction in actions on judgments. 20. Jurisdiction in foreclosure actions. 21. Title of real estate involved. 22. Confession of judgment. 23. Character in which parties sue or are sued. 24. Jurisdiction as affected by residence of parties. § 1. Jurisdiction defined. Jurisdiction is the power to hear and determine the subject matter in controversy between the parties to a suit; to adjudicate, or exercise any judicial power over them. {People v, Sturtevant, 9 N. Y. 263.) It does not relate to the right of the parties, but to the power of the court. The question of its existence is an abstract inquiry, not involving the existence of an equity to be enforced, nor to the right of the plaintiff to avail himself of it if it exists. It precedes these questions, and a decision upholding the jurisdiction of the court is entirely consistent with the denial of any equity either in the plaintiff or in any one else. (Id. ; Fisher v. Hepburn, 48 N. Y. 41, 53.) It is the power to adjudge concerning the general question involved, and is not dependent upon the facts which may appear in a particular case, arising, or which is claimed to have arisen, imder that general question. It is the power to act upon the general and 8 CIVIL LAW AND PEACTICE. abstract question, and to determine and adjudge whether the particular facts presented call for the exercise of the abstract power. {Hunt v. Hunt, 72 ]Sr. Y. 2lY; Hughes v. Cuming, 165 N, Y. 91 ; O'Donoghue v. Boies, 159 K Y. 87, 108; Lange v. Benedict, 73 IST. Y. 12, 27; Smith v. Central Trust Co., 154 N. Y. 333, 338 ; Belden v. WiZA;w5on, 44 App. Div. 420, 422; Sweet v. iWerr?/, 109 N. Y. 83, 94.) If the law confers the power to render a judgment, then the court has jurisdiction; what shall be adjudged between the parties, and with which is the right, is judicial action by hearing and determining it. (People v. Sturtevant, 9 N. Y. 263; Fisher v. Hepburn, 48 N". Y. 41; Buffalo and State L. B. B. Co. v. Supervisors, 93, 98.) § 2. Justice's jurisdiction is limited. A justice of the peace is not given general power to hear and determine all questions which may be brought before him. He has the jurisdiction in civil actions and special proceeding expressly conferred upon him by statute, and no other. (Just. Ct. Act, § 2; Laroque v. Harvey, 57 Hun, 366, 10 N. Y. Supp. 576 ; Eisenberg v. Lape, 52 Misc. 329, 332, 103 N. Y. Supp.' 169.) Some higher courts, such as the Supreme Court, have a " general " jurisdiction, and can, as a general rule, hear any case unless its jurisdiction is expressly forbidden in such a case. But the jurisdiction of a justice of the peace operates along different lines, and he has only the powers expressly given by statute. He is not vested with general common law powers, and has only a limited, statutory authority. {Starhuck v. Gebo, 59 Misc. 332.) Nothing will be presumed in favor of the court held by him so far as respects jurisdiction, and a party seeking to avail himself of its judgment must show affirmatively that it had juris, diction. {yVilliams v. Bamaman, 28 How. 59; Hard v. Shipman, 6 Barb. 621.) § 3. Effect of lack of jurisdiction. And if a court, whether of general or of limited jurisdiction, undertakes to hold cognizance of a cause, without having jurisdiction both of the person and subject matter, the proceedings are utterly void. {Hard v. Shipman, 6 Barb. 621.) And this is true although the parties to the action may have expressly consented to its trial by the justice. Consent cannot confer jurisdiction of the subject matter of an action, although it may confer jurisdiction of the parties thereto. {Onderdonk v. Banlett, 3 Hill, 323 ; Bartlett v. Mudgett, 75 Hun, 292, 27 IST. Y. Supp. 56 ; Clyde & Bose Plank Boad Co. v. Parher, 22 Barb. 323 ; Dudley v. Meyhew, 3 K Y. 9.) JUKISDIOTION IN CIVIL ACTIONS. 9 § 4. Error in exercising jurisdiction is not a lack of jurisdiction. Jurisdiction once gained cannot be lost by a subsequent irregularity. {Hard v. SM'pman, 6 Barb. 621.) And ■where a justice has jurisdiction, but errs in the exercise of his powers, his acts are voidable but not void ; but if there is no jurisdiction whatever, the proceeding is void. {Horton V. Auchmoody, 7 Wend. 200.) Where the court has power to pass upon the question involved it has jurisdiction of the subject matter ; and where the defendant has been properly served with the summons, and the con- stable has made the proper return, the court has jurisdiction of the person ; and where the judgment rendered in such case is within the authority of the court, any error committed must be classed as an irregularity. (Berg- man v. Wolif, 33 K Y. St. Eepr. 499, 11 N. Y. Supp. 591.) § 5. When question of jurisdiction to be determined. The time when the existence or want of jurisdiction may be determined by the justice, will depend upon the kind of jurisdiction to be determined and the nature of the action as disclosed by the pleadings or by the evidence given upon the trial. The justice can have no judicial knowledge that he has jurisdiction of an action when he issues the summons ; nor can he know it judicially until the complaint sets forth the cause of action. The plaintiff may declare in an action on contract, trover, or he may declare in slander or assault and battery. He can see when the complaint is made, and not before, whether it is a cause that he has jurisdiction to try. It is the complaint put in at the time the law directs which permits him first judicially to know what the action is. This is the first moment that the law permits him to take judicial cognizance of the action. A justice has, it is true in on© sense of the word, general jurisdiction to issue a summons, but the issuing of a summons is a mere ministerial, not a judicial act. This sum- mons is a mere notice to the parties when and where it is proposed to have judicial action taken in the case. The day and hour fixed in the sum- mons for its return is therefore the period when the justice takes jurisdic- tion of the action, and not at the time he issues the summons. He has the ministerial authority to issue a summons without regard to what the future complaint may be, and if on its return the plaintiff declares in slander or assault and battery, he then has no judicial action that he can perform. When once the justice acquires jurisdiction he does not lose it. The theory, therefore, that jurisdiction is obtained at the time of issuing the summons is not sound. It is obtained, if ever, at the time the statute allows the justice to perform the first judicial act in the case — the time of his examination of the summons to see if it has been so served and 10 CIVIL LAW AND PRACTICE. returned as to authorize him to act thereon. At this time he is to receive the complaint that shows the cause of action; this ig the time that the question of jurisdiction of the action is judicially determined. In looking at the confusion that is found in the language of some of the cases, it can be accounted for, in the difference of the character and nature of the different kinds of actions, and in the manner they are commenced. For instance, in an action commenced by attachment, where the first process is in the nature of an execution, the first act the justice is called upon to perform is a judicial one. The justice is prohibited from issuing this extraordinary kind of process unless he first judicially passes upon the nature, character and merits of the action in the following particulars: as to the sum due the plaintiff; whether or not the demand arises upon contract or upon the conduct of the defendant ; whether or not he designs a fraud. All this he judicially determines upon evidence, ex parte cer- tainly, but still evidence upon which he must adjudicate, before he can issue the process. In such a case, doubtless, the justice takes jurisdiction at the time of issuing the process. Nor is it a practical verity that in the ordinary case of the commencement of an action by summons, and by the service thereof, the justice obtains jurisdiction of the defendant's person. The well-settled rule that such courts are bound to show affirmatively their authority at every step until jurisdiction is obtained, is an answer to this proposition. There are dicta to be found in the books to the effect, " that jurisdiction of the person is obtained by service of process." This may be true in suits commenced by attachment, but it cannot be a universal rule. If it is ever used in reference to suits commenced by summons, it only means this, that by the means of legal process, duly served, the justice obtains jurisdiction. When a legal summons issued by a justice has been duly served, giving to the defendant notice by such service of the time prescribed by law, and si:ch service appears by a proper return of the constable endorsed thereon, the justice, at one hour after the time named in the summons for the appearance of the parties, having such summons and constable's return before him, obtains jurisdiction of the person of the defendant whether he be present or not. In order to give the justice jurisdiction of the per- son of the defendant it is necessary for the return of the constable to be produced before any further step can be taken by the justice unless the defendant appears. In the absence of a return to him by the constable the justice is without jurisdiction. (Moore v. Taylor, 88 App. Div. 4, 84 N. Y. Supp. 518.) Furthermore the return of the constable must be in compliance with the statute or the justice will be without jurisdiction. Thus, where a verified complaint is sei-ved with the summons in a case JUKISDICTION IN" CIVIL ACTIONS. 11 authorized hj law, and the return of the constable fails to state that he left with the defendant the copies of the summons and complaint that he delivered to him, the justice has no jurisdiction to render judgment with- out proof of the plaintiff's cause of action. (Syracuse Molding Co. v. Squires, 61 Hun, 48, 15 N. Y. Supp. 321. And see McMullin v. Machey, 6 N. Y. Supp. 885.) A justice cannot always determine at the time of joining issue whether he is authorized to proceed to judgment and execution in an action brought in his court. The Practice Act provides that a justice of the peace cannot take cognizance of a civil action where in a matter of account the sum total of the accounts of both parties, proved to the satisfaction of the justice, exceeds four hundred dollars. (Just. Ct. Act, § 4, subd. 8.) And although the sum total of the accounts of both parties, as appears by the allegations of the complaint and answer of the respective parties and the demand of each for judgment exceeds four hundred dollars, the justice has no authority to determine that the total amount of the accounts of the parties exceed that sum, and that, therefore, he has no jurisdiction of the action, except upon proof to his satisfaction of that fact. (Glackin v. Zeller, 52 Barb. 147, 149 ; Bartlett v. Mudgett, 75 Hun, 292, 27 JST. Y. Supp. 56 ; Dale v. Prentice, 126 App. Div. 137.) § 6. Jurisdiction of persons by voIunt£iry appearance. The voluntary appearance of a party before a justice without objection to the jurisdiction of justice gives the court jurisdiction over the person of such party. Thus, the plaintiff by seeking a summons against the defendant and voluntarily appearing in court to prosecute the case, gives the court jurisdiction of him. And, similarly, if the defendant appears and answers the complaint without any objection to the process, manner of its service, or to any of the proceedings had, he waives any irregularity and gives jurisdiction as to his person. (Glapp v. Graves, 26 N. Y. 418 ; Bunker v, Langs, 76 Hun, 543, 28 N. Y. Supp. 210 ; Huber v. Ehlers, 76 App. Div. 602, 79 N. Y. Supp. 150.) But where the defendant appears specially for the purpose of objecting to proceedings had, and takes his objections, he will not be deemed to have waived any defects in the prior proceedings, if, when his objections are overruled, he appears generally in the action and answers the complaint. (Avery v. Slack, 17 Wend. 85 ; Horton v. Fancier, 14 Hun, 175, 3 Wait's L. & Pr. 20. And see People ex rel. Ballin v. Smith, 184 N. Y. 96.) But where a defendant first appears specially and makes specific objections to the jurisdiction of the court, he cannot, on his subsequent general appearance, raise other objec- 12 CIVIL LAW AND PKACTICE. tions thereto. (Patrick v. WilHamson^ 19 App. Div. 451, 46 N. T. Supp. 50i; McKey v. Lockner, 43 App. Div. 43, 60 N. Y. Supp. 640.) § 7. Objections to illegal service of siunmons may be raised on appeal. A failure of a defendant to appear and object to the jurisdiction of the court does not estop him from raising the objection on appeal where the service of the summons upon him was made by the plaintiff who had been deputized by the justice to make the service. {Warring v. Keeler, 11 Misc. 451, 83 W. Y. Supp. 415. And see Becker v. Ekelman, 17 Misc. 665, 41 ]Sr. Y. Supp. 422 ; Smith v. Burliss, 23 Misc. 544, 52 N. Y. Supp. 841 ; People ex rel. Ballin v. Smith, 184 K Y. 96.) § 8. When justice disqualified. A justice of the peace, who is an inn holder or tavern keeper engaged in the liquor traffic or at whose inn or tavern liquor is sold, Las no power or jurisdiction under any provision of the Justice Court Act; but if a judgment has been actually rendered by him, before he became so dis- qualified, he may give a transcript thereof, or issue execution thereupon, or satisfy the judgment, upon payment thereof. (Just. Ct. Act, § 14.) A justice cannot sit in any cause or matter to which he is a party, or in which he has been attorney or counsel, or in which he is interested, or if he is related by consanguinity or affinity to any party to the con- troversy within the sixth degree, the degree to be ascertained by ascending from the justice to the common ancestor, and descending to the party, counting a degree for each person in both lines, including the justice and party and excluding the common ancestor. (Just. Ct. Act, § 492.) A judgment rendered by a justice of the peace who is related to either of the parties within the sixth degree is absolutely void. {Schoonmaker V. Clearwater, 41 Barb. 200.) The justice cannot even issue process in such case, or sit to rfeceive the return. The objection meets him at the threshold ; and if he has issued prooesisi inadvertently he ought simply to withdraw himself from the cause. (Edwards v. Russell, 21 Wend. 63.) And if a justice, who is also an attorney at law, accepts a retainer in another court from one of the parties to an action then pending before him, a judgment rendered by him therein will be set aside. (Hubbell v. Harheek, 54 Hun, 147, 7 N. Y. Supp. 243.) If a justice of the peace is a member of the senate or assembly he is not obliged to take cognizance of a civil action or special proceeding ; but he may take cognizance thereof in his discretion. (Just; Ct. Act, § 15.) JUEISDICTION IN CIVIL ACTIONS. 13 § 9. Distinction between jurisdiction of justice of peace of town and justice of the peace of a village or city. There is a broad distinction between the office of justice of the peace of the several towns of the State, and the so-called justices of the peace of cities and villages; the town justice being a constitutional officer, while the office of the justice of peace created by the charter of a village or city is not a constitutional office, but is an office created by an act of thq Legislature. (Beid v. Stevens, 70 Misc. 177, 126 N. Y. Supp. 379.) A justice of the peace, elected by the electors of a town as provided in the Constitution, is a town officer, and has no existence as a public officer independent of the town organization. (Matter of Gerturn v. Board of Supervisors, 109 N. Y. 170; Ziegler v. Corwin, 12 App. Div. 60, 42 N. Y. Supp. 855 ; Eisenherg v. Lape, .52 Misc. 329 ; People v. Garey, 6 Cow. 642 ; People v. Morrell, 21 Wend. 663.) But a justice of the peace elected by the electors of a city is a city officer. {Ziegler v. Corwin, 12 App. Div. 60; Reid v. Stevens, 70 Misc. 177, 126 K Y. Supp. 379; Schwartz v. PaZm, .163 App. Div. 7, 147 N. Y. Suppj 1081.) And eimilarly, a justice of the peace elected by the. electors of a village, is to be considered a village officer. The Constitution provides for the election of justices of the peace of the several towns and the duration of their terms of office. (Art. VI, § 17.) It also provides that justices of the peace and district court jus- tices may be elected in the different cities of this state, in such mannerj and with such powers, and for such terms respectively as are or shall be prescribed by law. (Id.) It also provides that inferior local courts of civil and criminal jurisdiction may be. established by the legislature, but no inferior local court hereafter created shall be a court of record. (Id,, § 18.) It is held that justices of the peace for cities authorized by section 17 of Article VI of the Constitution are very different from the inferior local courts provided for in section 18. (Lautz v. Galpin, 44 Misc. 356, 89 N. Y. Supp. 1096 ; Armstrong v. Kennedy, 23 Misc. 47, 51 IST. Y. Supp. 509; Shaeffer v. Steadman, 24 Misc. 267, 53 N. Y. Supp. 586; Gould v. Mahaney, 39 App. Div. 426, 57 IST. Y. Supp. 363.) These cases hold in substance that justices of the peace in cities possess and may exercise all the power and authority of justices of the peace in towns unless restricted by the legislative act which gives them' existence ; and, unless so restricted, possess the same jurisdiction in every respect throughout the entire county as is exercised by justices of the peace in towns. (But see Tobias v. Perry, 25 Misc. 74.) An officer elected in a village under the title of justice of the peace is 14 CIVIL LAW AlsTD PKACTICE. not tlie officer named in the Constitution whose election is therein pro- vided for, and has not the same jurisdiction as a justice of the peace of a town. The authority for the creation of a justice's court in a village is to he found in the clause of the Constitution providing that inferior local courts of civil and criminal jurisdiction may he established by the Legis- lature. (People ex rel. Sinhler v. Terry, 108 N. Y. 1.) But this authority is not confined to the creation of courts in villages. The meaning of the term " local courts " is well established by the authorities. It means possessing a jurisdiction localized within the terri- torial limits of the city or village for which each is created, and by the electors of which its incumbent is chosen. The jurisdiction of a local court must be exercised within the locality for which it was created, and its powers cannot be exercised outside of that locality. (See Brandon v. Avery, 22 N^. Y. 469; Waters v. Langdon, 40 Barb. 408 ; Oeraty v. Beid, T8 N. Y. 64; People ex rel. Sinkler v. Terry, 108 JST. Y. 1; Curtin v. Barton, 139 IST. Y. 505 ; Ziegler v. Corwin, 12 App. Div. 60 ; People v. Dooley, 171 IST. Y. 74, 88; People ex rel. Holmes v. Lane, 53 App. Div. 531, 637, 65 IST. Y. Supp. 1004; Matter of Schultes, 33 App. Div. 524, 534, 54 K Y. Supp. 34; Baird v. Heifer, 12 App. Div. 23; Hoag v, Lamont, 60 IST. Y. 96 ; Pierson v. Fries, 3 App. Div. 418 ; People v. Upson, 79 Hun, 87.) § 10. Extent of jurisdiction of justice. As a general rule the territorial limits of the jurisdiction of a justice of the peace of a town are coextensive with the limits of the county in which he resides, and the ordinary process issued by him in a civil case may be served at any place within his county. (Beach v. Baker, 25 App. Div. 9; Hoffman v. Button, 47 Hun, 409; McKey v. LocTcner, 43 App. Div. 43, 59 N. Y. Supp. 640.) As a town officer a justice of the peace has well defined powers and duties, limited, however, to such as are given him by statute. In the exercise of his jurisdiction he may issue certain process which runs throughout int.* county, and elsewhere under certain conditions. He may issue a snbpoena to compel a witness to attend in the county where the justice resides or in an adjoining county (Just. Ct. Act, § 190) ; he may issue an attachment against a defaulting witness (Just. Ct. Act, § 192) ; he may direct a delinquent witness in an adjoining county to be arrested and brought before him (Just. Ct. Act, § 194), and he may award a com- mission for the examination of a witness in an adjoinino- countv to be arrested and brought before him (Just. Ct^ Act, § 194), and he may award a commission for the examination of a witness upon interrogatories without the county or an adjoining county. (Just. Ct. Act, § 202.) In an action JUEISDICTION Iiq" CIVIL ACTIONS. 15 to enforce a mechanic's lien against real property brought before a justice of the peace, the summons and verified complaint may be personally served upon the owner anywhere within the State (Lien Law, § 4G) ; and, if personal service cannot be so made, it can be effected by leaving a copy thereof at the last place of residence of the owner and by publishing a copy of the summons in a newspaper. (Lien Law, § 47; Eisenberg v. Lapc, G2 Misc. 329, 103 N. Y. Supp. 1G9.) § 11. Jurisdiction, as limited by nature cf action; statutory provisions. Section 3 of the Justice Court Act defines generally the jurisdiction of a justice of the peace in respect to the subject matter of the civil actions which may be brought before him; while section 4 defines the causes of action of which the justice cannot take cognizance. As these sections must be read together in order to ascertain the jurisdiction actually con- ferred by the section first mentioned, they will both be here given. Section 3 provides as follows : "Except as otherwise prescribed in the next section, a justice of the peace has jurisdiction of the following civil actions : " 1. An action to recover dam'ages upon or for breach of a contract, express or implied, other than a promise to marry, where the sum claimed does not exceed two hundred dollars. " 2. An action to recover damages for a personal injury, or an injury to property, where the sum claimed does not exceed two hundred dollars. " 3. An action for a fine or penalty not exceeding two hundred dollars. " 4. An action upon a bond conditioned for the payment of money where the sum claimed to be due does not exceed two hundred dollars, the judgment to be rendered for the sum actually due. Where the sum secured by the bond is to be paid in instalments an action may be brought for each instalment as it becomes due. " 5. An action upon a surety bond, taken by any justice of the peace. " 6. An action upon a judgment, either foreign or domestic rendered in any inferior court not of record, where the sum claimed does not exceed two hundred dollars. An action upon a judgment, foreign or domestic rendered in a court of record, where the sum claimed does not exceed fifty dollars. " V. An action to recover one or more chattels, with or without dam- ages for the taking, withholding, or detention thereof, where the value of the chattel, or of all the chattels, as stated in the affidavit made on the part of the plaintiff, does not exceed two hundred dollars. " 8. An action to recover damages for an escape from the jail liberties where the sum claimed does not exceed fifty dollars." 16 CIVIL LAW AND PEACTICE. " 9, An action against an executor or administrator as such, on a claim not exceeding fifty doUars, which has been duly presented to and rejected by him. Section 4 of the Justice Court Act contains the exceptions to or limita- tions upon the jurisdiction conferred by the section above quoted and provides as follows : " But a justice of the peace cannot take cognizance of a civil action in either of the following cases : " 1. Where the people of the state are a party, except for one or more fines or penalties not exceeding two hundred dollars, or for premiums duel the insurance fund under the Workmen's Compensation Law not exceeding two hundred dollars. " 2. Where the title to real property comes in question as prescribed in article eight. " 3. Where the action is to recover damages for an assault, batt-ery, false imprisonment, libel, slander, criminal conversation, seduction, or malicious prosecution. " 4. Where the action is brought against the surviving husband or wife of the decedent, and next of kin of the intestate, or the next of kin or legatees of the testator, to recover, to the extent of the assets paid or dis- tributed to them, for a debt of the decedent, upon which an action might have been maintained against an executor or administrator. " 5. Where the action is brought by the executor or administrator of the decedent to recover damages for the wrongful act, neglect or default, by which the decedent's debt was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent by reason thereof if death had not ensued. " 6. Where the action is brought by the people of the state for the spolia- tion, conversion or misappropriation of public money, funds, credits or other property. " 6.* In a city of the second class adjoining a city of a population of one million or more, a, justice of the peace shall not take cognizance of a civil action for the recovery of rent or the rental value of real property or of a summary proceeding to recover the possession of real property. " 7. Where the action is brought under sections twenty-eight or one huu- dred and one of the Decedent Estate Law. " 8. Where, in a matter of account, the sum total of the accounts of both parties, proved to the satisfaction of the justice, exceeds four hun- dred dollars. [• Sic.] JUEISDIGTION m CIVIL ACTIONS. 17 " 9. Where the action is brought against an executor or administrator as such, except as provided in the last section." An action under section 28 of the Decedent Estate Law, is one brought by a child, born after the making of a will, who is entitled to succeed to a part of the real or personal property of the testator; or by a subscribing witness to a will who is entitled to succeed to a share of such property, against the legatees or devisees, to recover his share of the property. An action under section 101 of the Decedent Estate Law is one brought against the heirs of an intestate or the heirs and devisees of a testator to recover for a debt of the decedent, arising by simple contract, or by specialty, to the extent of the estate, interest, and right in the real prop- erty which descended to them from, or was effectually devised to them by the decedent. § 12. Jurisdiction in contract actions. In an action to recover damages for a breach of contract, express or implied, other than a promise to marry, the jurisdiction of the justice is determined by the sum claimed, and, if that sum does not exceed $200, the justice will have jurisdiction of the action. (Just. Ct. Act, § 3.) If the complaint does not demand more than the sum which limits the justice's jurisdiction, he has jurisdiction to entertain the action and give judgment for that sum although the evidence shows a claim in excess of his jurisdiction. (^Farley, Sheriff, v, Gibis, 4 N. Y. Supp. 353.) And where the action is brought upon a bond conditioned for the payment of money, the jusitice will have jurisdiction if the sum claimed to be due does not exceed $200, the judgment to be rendered for the sum actually due. (Just. Ct. Act, § 3, Subd. 4.) The jurisdiction of a justice is not limited by statute where the action is upon a surety bond taken by a justice of the peace. (Id., Subd. 5.) An undertaking given upon appeal is a contract within the meaning of this section (Morris v. Hunken, 40 App. Div. 129, 57 N. Y, Supp. 712) ; and an action upon a promise to discontinue a suit may be construed as an action on contract of which a justice has jurisdic- tion, although the plaintiff in his complaint has mingled allegations of fraud with the statement of matter constituting a contract. (Farrington V. Bullard, 40 Barb. 513.) SectioBi 3 relates only to the plaintiff's cause of action ; and the limita- tion of $200 applies only to the amount of the plaintiff's claim in the several cases enumerated, and imposes no limit upon the amount of the defendant's counterclaim. (Heigle v, Willis, 50 Hun, 588, 3 !N". Y. Supp. 497.) 2 18 CIVIL LAW AND PKACTICE. § 13. Jurisdiction in actions for personal injuries. A justice's court has jurisdiction to try an action founded upon a com- plaint that the plaintiff has sustained injuries by reason of having been bitten by a dog, previously known by the defendant to have been vicious. {Argersinger v. Lever, 54 Hun, 613, 1 H. Y. Supp. 923.) An action against an individual or corporation for injuries caused by the negligence of the defendant, its or his agents and servants, is an action for " a personal injury " and is within the jurisdiction of a justice, under section 3. (Kaliski v. Pelham Park B. Co., 15 JST. Y. Supp. 519.) Treble damages may be recoverable in justice's court where sum claimed does not exceed $200. (Layton v. McConnell, 61 App. Div. 447.) An action for damages for alienating the affections of a wife is, under subdivision 3 of section 4, not within the jurisdiction of a justice. {Wilson \. McGregor, 34 N. Y. St. Kepr. 775, 12 N. Y. Supp. 39.) An action cannot be maintained in a justice's court for tearing and injuring a person's clothes, if it appear that the damage was done in con- nection with an assault upon his person. It would be incidental merely to the assault, of which a justice has no jurisdiction. {Rich v. Hoge- hoom, 4 Denio, 453.) § 14. Jurisdiction of action to recover chattels. An action to recover the possession of a chattel may be brought before a justice of the peace without taking proceedings to replevin the chattel before judgment. (Delin v. Stohl, 2 Civ. Pro. Eep. 222; Ouyon v. Booney, 25 K Y. St. Eepr. 326; Bame v. Seyhora, 77 Hun, 529, 28 iN". Y. Supp. 930.) In such an action no affidavit of the value of the property to be recovered need be made. (Young v. Carey, 29 Misc. 278, 61 N. Y. Supp. 508.) The absence of an affidavit that the value of the chattel does not exceed $200 will not deprive the justice of jurisdiction where no proceedings are taken to replevin the chattel before judgment. (Irr V. Schroeder, 6 Civ. Pro. Eep. 252 ; Young v. Carey, 29 Misc. 278, 61 ]Sr. Y. Supp. 508.). But where an affidavit is made stating that the value of the property to be recovered exceeds $200, the justice is without jurisdiction. (Jaynes v. Jaynes, 8 Civ. Pro. Eep. 99 ; Young v. Carey, 29 Misc. 278, 61 N. Y. Supp. 508.) It is not necessary to the jurisdiction of the justice that the affidavit should state that the value of the chattel does not exceed $200. It is sufficient if it states as the actual value a sum not exceeding that amount. (Dennis v. Crittenden, 42 N. Y. 542.) Should it appear upon the trial that the property claimed does exceed $200 in value, the justice does not lose jurisdiction, that depending exclusively upon the statement of the affidavit with reference to value. (Dennis v. Crittenden, 42 N. Y. 542 ; Jaynes v. Jaynes, 8 Civ. Pro. Eep. 99.) JUEISBICTION m CIVIL ACTIONS. 19 Where the plaintiff has only a special property in the chattel, the value of the special property is regarded as the value of the chattel for the pur- pose of determining the question of jurisdiction of the justice. (^Shea v. Smith, 12 Week. Dig. 252.) § 15. Jurisdiction in action for fine or penalty. A justice of the peace, in an action regularly brought before him to recover a penalty for a sum less than $200, has jurisdiction to pass upon every question involved in the action, including the validity of the lavr impos'ing the penalty ; and his judgment, so long as it remains unreversed, is conclusive between the parties upon every question necessarily embraced therein. Although in such an action the complaint demands judgment in excess of the jurisdiction of the court, if the defendant appears on the return day, the justice has povsrer to allow an amendment of the complaint reduc- ing the claim to an amount within his jurisdiction, regardless of the objec- tions of the defendant. (People v. Wait, 114 App. Div. 334, 99 N. Y. Supp. 807.) A penalty incurred by reason of a violation of a city ordi- nance may sued for in a justice's court. ( Walker v. Gruihshanh, 2 Hill, 296.) A party suing for penalties can recover for but one violation or one default prior to the commencement of the action. {Gox v. Paul, 175 N. Y. 328.) An action for a penalty may be brought in some cases by one specially aggrieved (Just. Ct. Act, § 6), or by a common informer. (Just. Ct. Act, § 7.) § 16. Jiirisdiction in equitable actions. The jurisdiction of a justice of the peace is limited to certain legal actions, and he has no jurisdiction of the class of actions which are known as equitable actions. (Thornton v. Barter, 48 App. Div. 298, 62 'E. Y. Supp. 627; Starhuck v. Geho, 59 Misc. 332, 112 IST. Y. Supp. 312.) Hence, a justice does not have the power to determine such actions as specific performance, injunction, marshaling assets, creditor's action, parti- tion, foreclosure of mortgages, interpleader, rescission or reformation of instruments, accounting, subrogation, exoneration, contribution, removal of cloud on title. § 17. Jurisdiction in matters of account. The word " accounts," as used in subdivision 8 of section 4 of the Justice Practice Act, providing that a justice of the peace cannot take cog- nizance of a civil action where, in a matter of account, the sum total of the accounts of both parties, proved to the satisfaction of the justice, exceeds $400, includes demands, and is not restricted to running accounts. (Underhill v. Bushmore, 51 App. Div. 204, 64 N. Y. Supp. 1016.) 20 CIVIL LAW AND PEACTICE. Where the total amount claimed by both parties exceed $400, but pay- ments have been made from time to time, it ife the balance remaining unpaid that determines the question of jurisdiction. (Fuller v. Conde, 47 N. Y. 89 ; Crim v. CronhUte, 15 How. 250 ; Burdick v. Hale, 13 Abb. ]Sr. C. 60; Shaw v .Roberts,. 31 St. Eep. 862, 14 IST. Y. Supp. 579; 5m- iane v. Bank of Batavia, 36 Hun, 17 ; Matteson v. Bloomfield, 10 Wend. 555.) The justice will not be ousted of jurisdiction merely because the total amount claimed in the pleadings of both parties exceeds -$400. He has jurisdiction until it has been proved to his satisfaction that the sum total of the accounts of both parties exceeds that sum, and he has so decided upon evidence given upon a trial. (Glachin y. Zeller, 52 Barb. 147; Bartleit v. Mudgett, 75 Hun, 292, 27 IST. Y. Supp. 56; Dale v. Prentice, 126 App. Div. 137; White v. Place, 40 Hun, 481.) § 18. Jurisdiction in actions against executors or administrators on re- jected claim. It is the claim which has been presented to an executor or adminis- trator and rejected by him which determines the jurisdiction of a justice of the peace in an action brought upon the claim ; and the claim so pre- sented and rejected is the only one of which the justice can take cog- nizance. If that claim is less than fifty dollars, the justice has juris- diction. (Spencer v. Hall, 30 Misc. 75, 62 'N. Y. Supp. 826, affd., 51 App, Div. 623.) If the claim presented is for a greater sum, the claim- ant cannot, by an admission of a counterclaim or set-off which would reduce the amount due below that sum, confer jurisdiction upon the jus- tice, where the counterclaim or set-off so admitted arose out of matters independent of the plaintiff's cause of action, and it is neither pleaded nor proved by the defendant. (Osborne v. Parker, 66 App. Div. 277, 73 K Y. Supp. 894; Lund v. Broadhead, 41 How. 146.) § 19. Jurisdiction in actions on judgments. Whether a justice of the peace has jurisdiction of an action upon a judgment, is made by the statute to depend upon the amount claimed, and that in turn is made to depend upon the character of the court in which it was rendered, as whether a court of record or not of record. If the judgment was rendered in an inferior court, not of record, he has juris- diction of an action thereon where the sum claimed does not exceed $200. If the judgment was rendered in a court of record, he has jurisdiction of an action thereon where the sum claimed does not exceed $50. (Just. Ct. Act, § 3, Subd. 6.) JUEISDICTION m CIVIL ACTIONS. 21 Although a transcript of a judgment rendered by a justice of the peace has been filed in the county clerk's office, the judgment is not one rendered in a court of record, and a justice of the peace will have jurisdiction of an action brought thereon where the amount claimed does not exceed $200. (Harris v. Clark, 65 Hun, 361, 20 IST. Y. Supp. 232 ; Dieffenbach v. Boch, 112 K T. 621. But see Baldwin v. Boherts, 30 Hun, 163.) § 20. Jurisdiction in foreclosure actions. An action may be maintained to foreclose a lien upon a chattel, for a sum of money, in any case where such a lien exists at the commencement of the action. The action may be brought in any court, of record or not of record, which would have jurisdiction to render a judgment, in an action founded upon a contract, for a sum equal to the amount of the lien. (Lien, § 206.) A mechanic's lien on real property may be enforced against such prop- erty, and against a person for the debt upon which the lien is founded, by an action, by the lienor, his assignee or legal representative, in a court which has jurisdiction in an action founded on contract for a sum of money equivalent to the amount of such debt. (See Chap, XV, post.) A lien for labor done or materials furnished for a public improvement may be enforced against the funds of the State or the municipal corpora- tion for which such public improvement is constructed, to the extent •prescribed in article one of the Lien Law, and against the contractor or subcontractor liable for the debt, by a civil action, in the same court, and in the same manner as a mechanic's lien on real property. (See Chap. XV, post.) § 21. Title of real estate involved. A justice of the peace cannot take cognizance of a civil action where the title to real property comes in question as prescribed in article eight of the Justice Court Act. (Just. Ct. Act, § 4, Subd. 2. And see Chap. XIV.) In an action of trespass on lands, the assertion of title in the complaint, which is not denied in the answer, does not bring the title in question or oust the justice of jurisdiction. (Lynh v. Weaver, 128 N. Y. 171.) And although the plaintiff gives evidence of title upon the trial, if the defendant does not litigate that question, the justice has jurisdiction. (Taylor v. Wright, 24 Misc. 205.) A claim of possession' is not a claim of title ; and the question of the actual possession of land may be inquired into in a justice's court, although the right to possession may not be. 22 CIVIL LAW AND PEACTICE. (Ehle V. QuacJcenboss, 6 liill, 531 ; Eathh one v, McConnell, 20 Barb. 311, 21 ]Sr. Y. 466; Taylor v. Wright, 24 Misc. 205; Firi/t v. 7eeier-, 34 St. Eep. 678, 12 IST. Y. Supp. 579 ; Town of West Union v. Rickey, 64 App. Div. 15Q; Little v. Denn, 34 N. Y. 452, 1 Keyes, 235, 34 How. 68.) A plea of title means an unequivocal assertion by the defendant of title to the premises or some part thereof, not a mere denial of the plaintiff's (Civ:. Prafe. Aet, §■ 48.) - A sealed instrii^- ment generally binds only the parties thereto, and it cannot be shown by parol that apparent parties acted merely as agents for other parties. (Petersons. City of New Yorhl^m. Y. ^37.) -■ ' It is no longer required that the seal of a private person shall consist of a wafer or be imprinted in the substance of the paper ; for it is provided by section 44 of the General Construction Law that the private seal of a •person, other than a corporation, to any instrument or writing, shall con- sist of a wafer, wax or other similar adhesive substance afSxed thereto, oi" of paper or other similar substance affixed thereto, by mucilage or other adhesive substance, or of the word " seal," or the letters " L. S." opposite 'his signature. :§ 5. Express and implied contracts. A contract may be express or implied. It is express where the parties iave, at the time of entering into it, by oral dfeclarations or written state- ment, agreed upon its terms. A contract is implied where some of its essential terms, omitted by the parties, are supplied by the law upon the presumption, based upon their precedent acts, that they intended that such •omitted terms should be deemed a part of their agreement. An implied promise or contract is but an express promise proved by circumstantial evidence. (McCown v. N. Y. C. & H. B. B. B. Co., 50 IST. Y. 176, 180.) Thus, upon the rendition of services at the request and for the benefit of another, the law fastens upon the person making the request an obligation to pay their reasonable value ; and adjudges the customary or market price to be that reasonable value. (Boer v. Kochj 2 Misc. 334, 340.) But a promise to pay for services will be implied only when the court can see that they were rendered under such circumstances as authorized the party performing them to entertain a reasonable expectation of their payment by the party soliciting the performance. (Davidson v. Westchester Gas- LigU Co.. 99 N. Y. 559, 566.) § 6. Executory and executed contracts. A contract may be executory or executed. It is executed when both •parties have fully performed it. It is executory where it is unperformed on the part of one or both of the parties. For example, a deed of real estate is an executed contract, while an agreement for the sale of property at a future date is an executory contract. An agreement may be a completed valid contract, although it contem- plates the subsequent execution of a more formal contract and efforts to 3 34 CIVIL LAW AND PRACTICE. agree upon the form of the contract have proved unavailing. {Ferguson Contracting Co. v. Helderberg Cement Co., 135 App. Div. 494, 120 JN". T. Supp. 317.) § 7. Unilateral and bilateral contracts. A contract may be unilateral, that is, one-sided, or it may be bilateral, that is, two-sided. One person may make a definite offer and another per- son may accept it without promising anything in return and without mak- ing himself liable for anything, so that although one is bound the other is not, and the engagement lacks what is called mutuality. In such a case there is not an enforceable agreement. (Commercial W. & C. Co. v. NaHhampton P. C. Co., 115 App. Div. 388, 395 ; Booth v. Milliken, 127 App, Div, 522.) But a contract, although unilateral in form, will be binding upon the one party who assents thereto by subscribing his name at the end thereof, and upon the other party who accepts the instrument so signed as a valid and operative agreement and acts thereupon, (L'Amoreux v, Gould, 7 N. Y. 349 ; Justice v. Lang, 42 IST. Y. 493, 498'; Mason v. Decker, 72 N, Y. 595; Lord v. Cronin, 154 E". Y. 172,) § 8. Parties to contracts. Ordinarily the persons who conduct the negotiations which culminate in an agreement are the parties to the contract, unless they are acting as the agents or representatives of others. An agent or attorney may make a contract for his principal or client, which, if within the scope of his em- ployment, will bind the person for whom he professes to act. But where the contract made by the agent is under seal, no person can sue or be sued to enforce its covenants except those who are named as parties to the instru- ment and who signed and sealed the same. (Henricus v, Englert, 137 IN. Y, 488,) This is the general rule at common law, but the rule has some statutory exceptions. {Town of Ulysses v. Ingersoll, 182 'E. Y. 369.) Persons who subscribe a contract may make themselves liable as parties to the contract although their names are not mentioned in the body of the instrument. (Esselstyne v. McDonald, 98 App. Div. 197, 90 IST. Y. Supp. 518 ; Perkins v. Goodman, 21 Barb. 218.) It is a presumption of law, in the absence of express words, that the parties to a contract intend to bind not only themselves but their personal representatives. {Kertiochan v. Murray, 111 E", Y. 306.) This rule applies in cases of contracts for the payment of money, or the sale or pur- chase of property or of a covenant of warranty, or the like. It is, of course, coKipetent for the parties to agree that the contract shall not survive and CONTEACTS GENERALLY ANB, RIGHTS OF PARTIES. 3g that all obligation under it should terminate on their death. So the con- tract may be of such a nature as to admit only of personal performance, or 3as to imply that it is to be operative only during the continuance of per- gonal relations, although not so expressed in terms, and will be deemed dissolved by death or other disability which renders performancej accord- ing to the intention, impossible. Contracts for the rendition of personal or professional services are of this character, and they terminate with the death or disability of the party owing them. (Id.) Where a contract is executed by three or more individuals, each party will be bound only to the extent of the promises made by him. {Moloney V. Iroquois Brewing Co., 63 App. Div. 454, 71 N. Y. Supp. 1098; Berry Harvester Co. v. Walter A. Wood Co., 152 N. Y. 540; Union Insurance Co. V. Central Trust Co., 157 IST. Y. 633.) § 9. Consideration; in general. A sufficient and legal consideration is necessary to the validity of every oontraot, and a promise to pay a sum of money or to perform any act, when such promise is not based upon a sufficient consideration, cannot be enforced. (Arend v. Smith, 151 N. Y. 502.) The consideration may consist either in a benefit moving to the promisor, or in some forbearance or right surrendered by the promisee. (First Nat. Bank of Richfield Springs v. Keller, 127 App. Div. 435.) It need not be a money con- sideration, but it must be either a benefit to the party promising, or some detriment, or expense, or labor, or undertaking on the party to whom the promise is made. It constitutes a sufficient consideration to support a con- tract if the promisee in return for the promise does anything legal which he is not bound to do, or refrains from doing anything which he has a right to do. (Street v. Gait, 136 App. Div. 724, 121 IST. Y. Supp. 514.) § 10. Consideration; promise to do what one is obligated to do. The performance of an act which the party is under a legal obligation to perform cannot constitute a consideration for a contract. (Robinson v. Jeweti, 116 K Y. 40 ; Olmstead v. Latimer, 158 N. Y. 313 ; Carpenter v. Taylor, 164 IST. Y. 171 ; Feldman v. RocTcford Co.. 70 Misc. 66, 126 N. Y. Supp. 646.) Thus, the payment of a valid and admitted debt by one who owes it is no consideration for a promise by the creditor. (Arend v. Smith, 151 N. Y. 502.) And an agreement by a mortgagor to pay a mort- gage debt before it becomes due by the terms of the mortgage is void unless founded upon some new consideratioa. - (Feldman v. Rockford Co., 70 Misc. 66, 126 IN". Y. Supp. 646.) An agreement on the part of a solvent corporation to distribute the proceeds resulting from the disposition of its 36 . CIVIL LAW AE"D PEACTICE. assets equitably among its creditors is merely to do that ■which the lai^'' requires, and is not a consideration sufficient to support an agreement om the part of a creditor to forbear forcing collection of his claim. (MoUtit Vernon Battan Co. v. Joachimson, 119 App, Div. 71, 103 IST, Y. Suppi 1045.) The payment of a part of a debt which is due, is no consideration for an extension of time in which to pay the remainder. (Pahodie v, King^ 12 Johns. 426.) And payment of interest already accrued, or a promise to pay interest for the future {Reynolds v. Ward, 5 Wend. 502), is not a sufficient consideratioii to support a promise to extend the time of pay;' ment ; nor will the giving of .a new obligation with additional security for a part of the debt avail, as a consideration for an agreement to extend the time of payment of the residiie. (Gibson v. Benne, 19 Wend. 389 j Parmelee v. Thompson, 45 N. Y. 58.) But payment upon a note before it is legally demandable is a sufficieffit consideration for an agreement' between the holder and maker that the time for the payment of the balance of the note shall be extended. (NeWr sum v. Finch, 28 Barb. 175 ; Scott v. Frink, 53 Barb. 533.) § 11. Consideration J forbearance. A promise to forbear, or extend the time of payment of a debt actually due, based upon a promise by the debtor to pay the sum with iterest at a later date, is without legal consideration and unenforceable. (Bepelow v.- Walsh, 98 App, Div. 320, 90 IST. Y. Supp. 651; Kellogg v. Almsted, 25 K Y. 189 ; Olmstead v. Latimer, 158 N. Y. 313.) On the other hand, an agreement to forbear proceedings at law for the collection of a valid claim then due, is a good consideration for the promise of a third party to pay the debt, (T. <£ N. Bank V. Parker, 130 N. Y. 415.) So where a debt is duo, a promise by the debtor to raise the rate of interest one per cent is a valid consideration for an agreement to forbear proceedings at law for thp collection of the debt. (Haggerty v, Allaire Works, 5 Sandf. 230.) A valid and binding agreement to extend the time of payment between the holder of a promissory note and the principal debtor, without the knowledge or consent of a surety thereon, operates to release the surety, provided the holder knows of his true relation to the note. But to have this effect the agreement between the holder and principal debtor must be upon a valid consideration and must be sufficient to preclude the creditor, during the extended period, from enforcing the debt against the principal. (Parmelee v. Thompson, 45 N, Y. 58 ; National Citizens Bank v. Toplitz, 178 ^T. Y. 464.) . -When a debt is due, and the creditor forbears collection in consideration CONTEACTS GENEEALLY AND, EIGHTS OF PAETIES. S7 of a guaranty by a third party of the payment of the debt, the oonsideratiop ,is sufficient to support an action against the guarantor. (Watspii v. JBanJaZZ, 20 Wend. 201.) § 12. Consideration ; compromise of disputed claitij. , ^ , . Courts have from the earliest times favored compromises of bona fide disputes and have held agreements therefor to be founded upon a good consideration, irrespective of the validity ,,of the claim which v^as com- promised. A promise made upon a settlement - of a dispute to prevent lJ,tigation is made upon a good consideration., . (Minehan v. Hill, 144 App. Div. 854, 129 JSr. Y. Supp. 873.) . ' ' • f , A note given on a fair compromise of, a, doubtful claim is.founded op a gpod consideration and the court will not look behind the compromise. ^Farmers' Bank of Amesterdam v. Blair, 4:4c: Barb. 641.) The rule ia ■yv,ell settled that the compromise of a doubtful claim is a good considera- tion for a promise to pay money ; and when an action is brought upon the promise it is no answer to show that thefirst suit could not have been main- tained, or that the claim was not a valid, one. , {Stewart v. Ahrenfeldt, 4 P,e!nio, 190; White v. Hoyt, IB IST. Y. 505;. Andrews v. Brewster, 124 ;]^. Y. 133; Dovale v. Ackermann, 2 App. Div. 404, STIST. Y. Supp. 959.) ,. A claim to, the possession of a farm, with other matters in controversy, were submitted by the parties to an arbitrator who decided in favor of , the defendant and on his bringing action to recover possession it was agreed that the plaintiff should deliver possession to, him, and he should relin- quish his claim under the arbitrator's decision and pay the plaintiff a stipulated sum. This was a fair settlement of a suit pending and the surrender of possession was a legal consideration for a note given for tha sum of money to be paid. (Hall v. Browri, 15 Johns. 194.) § 13. Consideration; affection; promise to marry. Natural love and affection betweeij near relatives is a sufficient con- sideration to support an executed contract, but not a mere covenant or promise, or executory agreement. {Dv.voll v. Wilson, 9 Barb. 487.) , A promise of marriage, subsequently performed, is a good consideration for a note given on the faith of the promise ( Verplank v. Story, 12 Johns. 536; Wright v. Wright, 54 N. Y. 437), or an agreement to make a mar- riage settlement {Hosmer v. Tiffany, 115 App. Div. 303), or to pay money. (Leib V. Dohriner, 60 Misc. 66.) A contract by which a third person promises to perform certain agreements in consideration of a marriage between other parties is founded upon a sufficient consideration. l&arasohn v. Kamaiky, 193 IST. Y. 203.) 38 CIVIL LAW AND PEACTICE. § 14. Consideration; mutuality of promises. A promise is a good consideration for a promise, provided that it imposes some legal liability on the person making it. If it imposes none, it can- not be a consideration. {Commercial Wood and Cement Co. v. Northamp- ton Portland Cement Co., 115 App. Div. 388, 100 IST. Y. Supp. 960.) A inew promise by a party to do less than he has already agreed to do is not a sufficient consideration for the promise of another party to do more than he is obliged to do. {Weed v. Spears, 193 IST. Y. 289.) A promise by one party to sell is a sufficient consideration for the promise of the other party to buy. {Van Dam v. Tapscott, 40 App. Div. 36, 57 W. Y. Supp. 534.) ■ It is not essential to the existence of a consideration for a promise that mutuality of obligation should exist between the parties at the time of making the promise. Where a person has made a proposition coupled with a promise, a voluntary performance by the one to whom the proposition, was made of the act required by the proposition, constitutes a considera- tion which will uphold the promise. {Marie v. Garrison, 83 W. Y. 14; Cox V. Stohes, 156 JS^. Y. 491; Boheris v. Cohh, 103 IST. Y. 600; Kevka College v. Bay, 41 App. Div. 200, 58 N. Y. Supp. 745; Boosevelt v. Nus- haum, 75 App. Div. 117.) " The party making the promise is bound to nothing until the promisee within a reasonable time engages to do or else does or begins to do the thing which is the condition of the first promise. Until such engagement or such doing, the promisor may withdraw hid promise because there is no mutuality and therefore no consideration for it. But if- without any promise whatever the promisee does the thing required, then the promisor is bound on another ground. The thing don^ Is itself a completed consideration, and the original promise to do some-' thing if the other party would do something is a continuing promise until the other party does the thing required of him." (1 Parsons on Contracts, 8th ed., p. 466.) It is upon this theory principally that subscribers to funds for charitable, educational or religious purposes are held liable upon their engagements.' (See Barnes v. Ferine, 12 IST. Y. 18; Hutchins v. Smith, 46 Barb.' 235; Wilson V. Baptist Education Society of New YorTc, 10 Barb. 308 ; Boherts V. Cohh, 103 N". Y. 600 ; KeuJia College v. Bay, 41 App. Div. 200.) An option is not an agreement for the sale of property, but is simply a continuing offer or contract by which the owner stipulates with another that he shall have the right to buy the property at a fixed price within a certain time, and unless it be founded upon a consideration it may be revoked or withdrawn at any time before acceptance. {Quick v. Vi'heeler^ 78 IvT. Y. 300 ; Benedict v. Pincus, 191 N. Y. 377 ; Pomeroy v. Newell, 117 CONTEACTS GENEEALLY AND BIGHTS OF PAETIES. 39 App. Div. 800; Ganss v. Guffey Petroleum Co., 125 App, Div. 760.) It jvas held by a divided court, in the case last cited, that the expenditure of money, by the party to whom the option was given, solely for the purpose of enabling him to determine whether he would accept the offer and pur- chase the property at the stipulated price, did not furnish such a con- sideration as would preclude the party making the offer from withdrawing it before acceptance. § 15. Assent of parties ; in general. To constitute a valid contract, it is necessary that there be an assent of the contracting parties. The assent of the parties is usually the result of an offer by one party and an acceptance of such offer by the other party. When the parties meet each other personally, the conversation between them determines whether there has been an offer and acceptance sufficient to constitute a contract. But, when the parties conduct their negotiations at a distance by letters or telegrams, whether there has been such a meet- ing of the minds as to constitute a contract is sometimes a difficult ques- tion involving the construction of the different communications. In order to establish a legal contract through the medium of correspond' ence, it must be made to appear that there was not only a plain, unequivo- cal offer, but that the acceptance of such an offer was equally plain and free from abiguity. In other words, there must have been an exact meet- ing of the minds of the contracting parties, in respect to every detail of tiie proposed contract, and if the precise thing offered was not accepted; or if the acceptance was in any manner qualified by conditions or reserva- tions, however slight they may have been, the universal rule seems to be that no valid contract is thereby established, but that such a modified of qualified acceptance must rather be treated as a rejection of the offer.' ^Myers v. Smith, 48 Barb. 614 ; Uhlman v. Day, 38 Hun, 298 ; Myers v. Trescott, 59 Hun, 395; Sidney Glass WorJcs v. Barnes & Co., 86 Hun, 374 ; Chicago, etc., B. B. Co. v. Dane, 43 N , Y. 240 ; Barrow Steamship Co. V. M. C. B. Co., 134 IST. Y.^ 15 ; Mahar v. Compton, 18 App. Div. 536 ; BrudbaJcer v. James, 57 App, Div. 527.) ■ In order to make an agreement where an offer is made by one party to aiiother when they are not together, the acceptance of the offer by the other miist be manifested. It is not necessary that the acceptance comes to the knowledge of the party making the offer before he shall be bound, if the manifestation of the acceptance be put in the proper way of reaching him ; but mental determination, not put in course of indication by act to the other party, is not such acceptance. (White v. Corlies, 46 K". Y. 467.) ' On a sale of goods where the seller understood that the terms of the 40 ; CIVIL LAW: AJND'PEACTICE. gale wei'e that they were to be paid f ot in a note indorsed generally by the buyer, but the buyer understood that it was to be indorsed without recourse^ it was held that there was no contract, and as the goods had been delivered to the buyer, and he did nOt return them, he was liable to pay for theiti; {Baldwin v. Middleburger, 2 Hall, 176.) Where a landlord and tenant mutually suppose that they -have agreed upon the rent, but one under- stands it to be fixed at a certain rate, and the other at a lower rate, there is no agreement, and the tenant must pay as much as the premises are reasonably worth. {Scranion v. Booth, 29 Barb. 171.) That which is due by the parties under a iStippMed cdntract, where there was such mutual inisunderstanding that their minds never met so as to make a contract, ia not binding. {Fullerton v. Dalton, 58 Barb. 236.) To constitute a binding contract, the minds of the ' parties must have met upon every material provision, whether of primary or secondary consequence, con- tained in it. (Sanders V. Pottlitze'r Bros. Fruit Co., 53 St. Eep. 645.) "^ Where an offer, proposal or contract is expressed in clear and explicit term's, matter printed in -small type at the top or bottom of the office stationery of the writer, where it is not easily seen, which is not in the body of the instrument or referred' to therein, is not necessarily to be con- sidered as a part of such tiffer,' proposal or contract. (Sturtevant Co. v. Fireproof Film Co., 216 N. ¥.199.) § 16. Assent of parties, formal contract to be subsequently drawn. ; Where all the substantial terms of a contract have been agreed upon by the parties to a negotiation, and nothing is left for future negotiation and settlement, the fact that it was the understanding that the contract should be formally drawn up anid put in Writing, does not leave the transaction, incomplete and without binding force, in the absence of a positive agre^ ment that it should not be binding until so reduced to writing and formally executed. (Sanders v. Pottlitzer Bros. Fruit Co., 144 N. Y. 209 ; DisTcen V. Herter, 73 App. Bit. 453, 77 N. Y. Supp. 300.) But it is always com- petent for the parties to a contract to. agree upon the method of its execu- tion and delivery, and if any material stipulation relating thereto remains Unperformed by them, the instrument will not take effect as their contract (Bracheti v. Barney, 28 IST. Y..333; Whitford v. Laidler, 94 IST. Y. 145; Ferguson Contracting Co. y. Helderberg Cement Co., 135 App. Div. 494, 120 N". Y. Supp. 317.) §17. Assent of parties ; fraud. . An instrument procured by "fraud, trick or artifice, or executed by a party in such a state of intpxica.tion as to be incapable of consenting or CONTKACTS GENEEALLY AND EIGHTS OF PARTIES. 41 contracting,, is invalid as between the parties to the transaction. These facts, however, do not always constitute a defense as against an innocent iperson, who is himself free from any fraud or negligence, and who has advanced money or property to another upon the credit afforded by the instrument. But even in such a ease, the person who has signed the paper is not liable upon it unless it is found that he failed to observe proper care and caution, and was chargeable with negligence in attaching his signature. If he actually signed the paper, though procured to do it by fraud, and is chargeable with negligence, he is liable to an innocent party who acted to his prejudice upon the face of the instrument. Such cases are not gov- erned by the rules applicable to the hona fide holder of negotiable paper procured by fraud, but by the equitable rule that where one of two innocent parties must suffer, he who has put it in the power of a third person to commit the fraud must sustain the loss. (Page v. Krekey, 137 N. Y. 307.) § 18. Interpretation of contracts ; in general. After a contract has been proved, it is many times necessary to ascertain what the contract means. No one always uses words in such a manner that their meaning is never a question of doubt. In ascertaining the mean^ ing of a contract, the intent of the parties is sought, and rules of law of more or less force have been developed to aid in determining such intent. In construing a contract, the whole instrument is to be considered, for the use of a few words or sentences may clbiid rather than clear the question. {Koles V. Borough PacJc Co., 142 App. Div. 765, 127 N. Y. Supp. 671.) A contract is to be construed in the light of the circumstances surrounding its execution, but this rule authorizes only a just construction of its language and a common understanding of the contracting parties, and does toot permit the making of a new contract or a reformation of it, or a dis- regard of its terms. (Maune v. Unity Press, 143 App. Div. 94, 127 IST. Y. Supp. 1002.) It is not the province of courts to change the terms of a contract which has been entered into, even though it be harsh and unrea^ fionable, for the folly or wisdom of a contract is not for the courts to pass lipon. Its terms, however burdensome, must be enforced if such is the clear meaning of the language used. (Cohen v. Walworth, 95 Misc. 47 9 j 158 K Y. Supp. 1081.) § 19. Interpretation of contract; intent is primary consideration. The primary and controlling rule in the construction of contracts is that the intention of the parties shall be determined. (Gcdl v. Gail, 127 App. Div., 892, 112 K Y. Supp. 96; Hargraves Mills v. Gordon, 137 App. Div. 42 CIVIL LAW AND PEACTICE. ■ 675, 122 IST. Y, Supp. 246; People ex rel. New York Central, etc., B. Co, v. Walsh, 211 N". Y. 90.) The gfeat object, and practically the only foundation of rules for the construction of contracts, is to arrive at the intention of the parties. (Gillet v. Bank of America, 160 N. Y. 549; Worthington v. Hermann, 89 App. Div. 627, 88 JST. Y. Supp. 76.) It is, therefore, held that in the construction of contracts it is the duty of the court to put itself, as near as may be, in the situation of the parties, and from a consideration of the surrounding circumstances and the occasion and apparent object of the parties, determine therefrom the meaning and intent of the language employed in framing the agreement. (Smith v. Kerr, 108 W. Y. 31 ; Solomon Tobacco Co. v. Cohen, 95 App. Div. 297, 88 IST. Y. Supp. 641.) All rules of interpretation of a contract are aimed to one purpose and that is to discover the intention of the parties. One element of a contract may be more helpful than another to indicate inten- tion. To certain types of agreements the courts have ascribed greater rela- tive potency, so that in the absence of other overmastering terms they by their own force establish intention, but no rule is per se determinative. (Clarh Y. West, 137 App. Div. 23, 122 N. Y. Supp. 380.) A contract of guaranty is to be construed by the same rules as govern the construction of other contracts, that is, the intention of the parties is to be ascertained and enforced if it be lawful and adequately expressed. (Clausen v. Title Guaranty & Surety Co., 168 App. Div. 569, 153 N. Y. Supp. 835.) § 20. Interpretation of contracts; construction against party preparing contract. Where a contract is so manifestly ambiguous that reasonable and intelli- gent men would honestly differ as to its meaning, the doubt should be resolved against the party who prepared and executed the agreement and is responsible for the language used. (Kratzenstein v. Western Assurance Co., 116 N. Y. 54; United WaterworJcs Co. v. Omaha Water Co., 164 K, Y. 41 ; Industrial & General Trust Co. v. Tod, 180 N. Y. 215 ; Jack- son V. Builder^' Wood-working Co., 91 Hun, 435, 36 E". Y. Supp. 227 ; Comey v. United Surety Co., 217 IST. Y. 268 ; Elwood v. Goldman, 217 iN". Y. 585; Siaien Island Shipbuilding Co. v. Spearin, 149 App. Div. 854, 134 ]Sr. Y. Supp. 98.) The reason for this rule, that the language of an instrument is to be construed against the person who proposes it rather than against the person who is invited to accept it, is that men are sup- posed to take care of themselves and he who chooses the words ought to be held to a strict interpretation of them rather than he who accepts them. (Staten Island Shipbuilding Co. v. Spearin, 149 App. Div. 854, 134 N". Y. Supp. 98.) Where fruit trees are sold by a traveling agent, any CONTEACTS GENERALLY AlfD EIGHTS OF PAETIES. 48 ambiguity in the contract embodied in a printed form is to be construed ,in favor of the buyer. (Sanford v. Brown Bros. Co., 134 App. Div. 652, 119 N. Y. Supp. 333.) Where a contract is drawn by the defendant's lawyers and tendered to the plaintiff with the assurance that his future for the next five years would be secure, if its meaning is doubtful, the contract is to be construed most favorably for the plaintiff. (Moran v. Standard Oil Co., 211 IST. Y. 187.) It is a general rule of law that where the language of a promisor may be understood in more senses than one, it is to be interpreted in the sense in which he had reason to suppose it was understood by the promisee. (Gillet V. Bank of America, 160 IST. Y. 549, 555; Tracy v. First Nat. Bank, 48 App. Div. 285, 62 IST. Y. Supp. 657; White v. Hoyt, 73 K Y. 505; Stanton v. Erie R. Co., 131 App. Div. 879, 116 N. Y. Supp. 375; Wolf V. United States Casualty Co., 101 Misc. 541, 167 K Y. Supp. 673.) If it is doubtful, in view of the general tenor of an instrument and the relations of the (contracting parties, whether given words were used in an enlarged or restricted sense, other things being equal, that construction should be adopted which is most beneficial to the promisee. (Hoffman V. Aetna Ins. Co., 32 IST. Y. 405 ; Belden v. Burke, 72 Hun, 51.) § 21. Interpretation of contracts ; practical construction. It has many times been held that the practical construction put upon a contract by the parties to it is sometimes almost conclusive as to its mean- ing^ and that there is no surer way to find out what the parties mean than to see what they have done. (Fox v. Coggeshall, 95 App. Div. 410, 88 N. Y. Supp. 676; Nicoll v. Sands, 131 N. Y. 24; Insurance Co. v. Dutcher, 95 U. S. 273 ; Maloney v. Iroquois Brewing Co., 63 App. Div. 454, 71 N. Y. Supp. 1098; Woolsey v. Funke. 121 K Y. 87; Sattler v. Hallock, 160 IST. Y. 291 ; Matter of Eureka Mower Co., 86 Hun, 309 ; McClanathan v. Friedel, 85 Hun, 175 ; Hargraves Mills v. Cordon, 137 App. Div. 695, 122 'E. Y. Supp. 245 ; Schachne v. Chamber of Commerce Corp., 102 Misc. 197, 168 K Y. Supp. 791.) If ambiguity exists in a con- tract, the practical construction put upon it by the subsequent conduct of the parties thereto is a valuable aid in determining its true meaning. (Jarvie v. Arhuckle, 163 App. Div. 199, 148 N. Y. Supp. 189.) But it is only where the language of a contract is indefinite or ambiguous that the acts of the parties in carrying it out are received as a practical con- struction of it. (Hill v. Priestly, 52 IST. Y. 635 ; Maloney v. Iroquois Brewing Co., 63 App. Div. 454; Elefante v. Pizitz, 182 App. Div. 819, 169 N. Y. Supp. 910.) 44 CIVIL LAW AND PRACTICE. § 22. Interpretation of contracts ; reasonable construction sought. It is a general rule of construction that the words of a contract will be given a reasonable construction where that is possible, rather than an unreasonable one, and also that the court will endeavor to give a coii:- struetion , most equitable to bofh 'parties, instead of a construction whidh would give one of them an unfair or unreasonable advantage over the other. (Fleischman v. Furgueson, 223 N". Y. 235 ; Heller v. Kalisch, 141 App. Div. 205, 125 N".' Y. Supp. 1057.) Where there is an uncer- tainty or doubt as to the meaning of words or phrases used in a contract, in seeking for the intent of the parties as evidenced by the words used, the fact that a construction contended for would make the contract unreasori- able, and place one of the parties entirely at the mercy of the other, may properly be taken into consideration. {Russell v. Allerton, 108 N. Y. 288; Pollock v. Penn. Iron Works Go., 13 Misc. 194; Heyn v. N. Y. Life Ins. Co., 192 N. Y. 1; SchoeliJcopf v. CoatswoHh, 166 IST. Y. 77.) ■ § 23. Interpretation of contracts ; reference to usage. When the usage in relation to matters, embraced in a contract is rea- sonable, uniform and well settled, not in opposition to fixed rules of law, nor in contradiction of the expressed terms of a contract, and when the usage is so far established and known to the parties that it may be sujh posed that the contract was made in reference to it, it is deemed to form a part of the contract, and may be shown in order to enable the court to declare what the contract expressed to the parties. There are usages, so restricted to locality, trade or business, that a party ignorant of them 4? not presumed to have- contracted witli reference to them. {Booth Brosy y. SotVd, 87Hun, 452,)_ § 24. Interpretation of contracts ; general and specific words. Where words of general description are associated with words of par^ ticular description, the general words, in the absence of anything clearly manifesting a contrary intent, are to be construed and limited so as to be ejusdem generis with the particular words. {Belden v. BurTce, 72 Hun, 51, 83, 25 N. Y. Supp. 601; Ducker v. Del Oenovese, 93 App. Div. 575^ 678.) But, while it is a well-established rule of construction that general expressions in a contract will be restricted by particular descriptions (Jr additions following them, like other rules of construction, the rule id applied to determine the intent of the parties and not to thwart such intent. When applied it does not destroy entirely the force of the general words, but limits their force so that they cover only the class in which the COJSTTEACTS GENEKALLY AND EIGHTS OF PARTIES. 45 particular words fall. {Davids Co. V. Hoffman-LaBoche Chemical Works, 97 Misc. 33, 160 JST. Y. Supp. 973.) § 25. Interpretation of contracts; conflict between written and printed portions. , In construing instruments wliicli are in part printed and in part written on printed blanks, a preference should be given to the written part. (^Harper v. Albany Mutual Ins. Co., 17 N, Y. 194; Weisser v. Maitland, 3 Sandf. 318, 322; Heyn v. New York Life Ins. Co., 192 K Y. 1; Kratzen^tein v. Western Assurance Co., 116 N. Y. 54, 57.) This rule is applied with great liberality, where it appears that the printed matter is in obscure type or placed where it would not be likely to be seen, or where the printed matter was evidently not intended to be incorporated in the contract. In such cases, the printed matter is accorded little influence in changing the clear and explicit language of the contract.. (Poel V. Brunswick-Balke-Collender Co., 216 N. Y. 310.) When repug- nancy exists between the written and printed clauses of an instrument,, that which is written prevails over that which is printed, but because there was a conflict between the printed and written clauses as to the date of delivery it does not follow that all the other jprinted clauses of the con- tract are to be disregarded. The instrument is to be construed as a whole and effect is to be given to every word and expression contained in it where there is no irreconcilable conflict. (JPoel v, Brunswick-Balke- Collender Co., 216 N. Y. 310.) If the, whole contract can be construed together so that the written words and those printed make an intelligible contract, such construction should be adopted, because the intention of the parties is presumed to be alive and active throughout the whole instru- ment, and it is presumed that no averments are anywhere inserted without irieaning and without use. (Huit v.' Zimmer, 78 Hun, 23.) (■■ ' ■' ' ' " ■ § 26. Interpretation of contracts; agreement for liquidated damages. "'An agreement for stipulated daimages, for the breach of a contract, necessarily implies that they are to be received in satisfaction of and colnplete compensation for the breach to which such stipulation is applica- ble. (Shiellv. McNitt, 9' Vaige, 101.) , ~; ,■ • Where a contract contains an express stipulation that in case of a bleach of the contract the party in default shall pay to the other a speci- fied sum as liquidated damages, the language used is not necessarily con- trolling In respect to the construction of the contract In this regard or the fimount recoverable as damages. Such, provision' 'will be treated as liqui- dated damages only in",;thos0 cases wbfere from. the nature of the trans- 46 CIVIL LAW And peactice. action the actual damages consequent upon a breach of the contract are incapable of accurate measurement, or where the sum specified in th^" instrument is not out of all proportion to any damages which could possibly arise from the breach. In the cases where these general features do not exist, the tendency of the courts is to treat the stipulation not as providing for liquidated damages, but in the nature of a penalty. Where the language of such a provision specifying the amount of damages to be paid in case of a breach of the contract is clear and explicit to that effect^ the amount is to be deemed liquidated damages when the actual damages Contemplated at the time the agreement was made are in their nature uncertain and unascertainable with exactness and may be dependent upon extrinsic considerations and circumstances, and the amount is not on the face of the contract out of all proportion to the probable loss. (Curtis v. Van Bergh, 161 N. Y. 47; Ward v. Hudson Eiver Bldg. Co., 125 N. Y. 230 ; Caesar v. Buhison, 174 IST. Y. 492.) § 27. Interpretation of contracts; provision giving one party right to construe contract. No effectual provision can be inserted in any contract which confers ■ upon one of the parties the right to construe the contract and makes the construction by such party final. No one can be made by contract the final judge of his own acts. The effect of such provision is to make the construction of the contract by the party to whom the power is given final in case he acts in good faith, but not otherwise. (Industrial & Oenerat Trust V. Tod, 180 N. Y. 215.) § 28. Validity of contracts ; in general. All contracts or agreements which have for their object anything which is repugnant to justice, or against the general policy of the common law, or contrary to the provisions of any statute, are void ; and whenever a con; tract or agreement is entered into with a view to contravene any of these general principles, there is no form of words, however artfully introduced or omitted, which can prevent the courts from investigating the truth of the transaction. (Gray v. Hooh, 4 N. Y. 449.) It is a general rule that illegal or prohibited contracts are void although not expressly so declared by statute. (Barton v. Port Jackson, etc.. Plank Road Co., 17 Barb. 397; Oneida Bank v. Ontario Bank, 21 N. Y. 495; Horton v. Erie B. R. Co., 65 App. Div. 590 ; Sirkin v. Fourteenth Street Store, 124 App. Div. 384 ; Swing v. Dayton, 124 App. Div. 58.) To this rule there are exceptions. A contract by a corporation endeavoring to CONTEACTS GENERALLY ABIJV EIGHTS OF PAETIES. V[ practice law in prohibition of section 280 of the Penal Law is invalid anl Mil not he enforced. ( United 'States TUle Qiidrcmty Co. v. Brown, 86 Misc. 287, 149 JSr. Y.Supp. 186.)' \ . ' Parol evidence is always competent to show that the consideration for a written contract is illegal, for, if a different rule prevailed, the parties ■ to an illegal contract could make them enforceahle by the simple device of putting them in writing and using such words as would conceal or omit the illegal objects sought to be accomplished. (Si. Hubert Guild v. Quinn, 64 Misc. 336, 118 IST. Y. Supp. 582.) The validity of a contract is to be determined as of the time when it was made. (Appleton & Co. v. Warlassa, 92 Misc. 42, 155 IST. Y. Supp. 987.) § 29. Validity of contracts ; contracts against good morals. Contracts against good morals are frequently held to be void. Thus a contract letting premises for purposes of prostitution is void. ( Updyhe v.; Camphell, 4 E. D. Smith, 570.) And, where the consideration of a contract is the compounding of a felony, the contract cannot be enforced. {Strauss Liyiotyping Co. v. Schwalbe, 159 App. Div. 347, 144 N. Y. Supp, 549; CatsUU Nat. Bank v. Lasher, 165 App. Div. 548, 151 K Y, Supp. 191; Doucet v. Massachusetts Bonding & Ins. Co., 180 App. Div, 599, 167 ISr. Y. Supp. 892.) Where the consideration of a contract is the agreement not to prosecute one for a felony, the contract is void in its inception and continues void ar.d cannot be gi\^en validity by ratification. (Strauss Linotyping Co. v. SchwaTbe, 159 App. Div. 347, 144 N. Y. Supp. 549.) , A contract for forbidden work on Sunday is void and not capable of ratification. (Hamilton v. Oridley, 54 Barb. 542.) Where by a. con- tract it was agreed that for the work of seven days constituting a week, from a certain time to a certain time, one of the parties thereto should be guaranteed and receive compensation to be paid weekly, the contract cannot consistently, with the intent of the parties, be construed to give an option to the party to whom the guaranteed amount was to be paid to work on Sundays or not as he chose. And, where by the operation of the contract Sundays came within its terms, the contract; was void and the guaranty could not be enforced. (McClanathan v. Friedel, 85 Hun, 175.) A contract for the sale of obscene literature is against good morals and is void. But the sale of those books which are generally considered as literary classics is not forbidden, though present-day views of morality may condemn them. (St. Hubert Guild v. Quinn, 64 Misc. 336, 118 N. Y. Supp. 582.) 48 CIVIL LAW AND PEACTICE. § 30. Validity of contracts; contracts against public policy. Contracts against public policy are of a class that cannot be enforced. Tbus, it would be contrary to a sound public policy to recognize and tb enforce an agreement to recompense a party for giving his evidence in ^n action to be commenced (Lyon v. Hussey, 82 Hun, 15; Cowles v. Rochester Folding Box Co., 179 N. Y. 87 ; Laffin v. Billington, 86 N. Y* • Supp. 267, 14 N. Y. Am. Cases, 360) ; or to enforce an agreement to pay an expert a stated sum for making an appraisal of certain property, where one condition of the agreement is that his testimony shall give a value substantially less than the testimony of an opposing expert (Hough v. State of New YorTe, 145 App. Div. 718, 130 N. Y. Supp. 407) ; or tP enforce an agreement to refer all matters of difference or dispute which may arise to arbitration (Delaware & Hudson Canal Co. v. Pennsylvania Coal Co., 50 jST. Y. 250 ; Seward v. City of Rochester, 109 N. Y. 164^; National Contracting Co. v. Hudson River Water Power Co., 192 N. Y. 209 ; Sutro v. Balk, 151 IST. Y. Supp. 764) ; or any contract which provided for the sale by an individual of the right given to him with others by legislative enactment to give or withhold his consent to any project affect- ing a public interest and where the giving or withholding of such consents may become the basis of governmental action (Riggs v. Ryan, 121 N. Y. 301) ; or any contract which has for its object the procuring of legislative action (Veasey v. Allen, 61 App. Div. 119; Mills v. Mills, 40 IST. Y. 543) ; or contracts by which the parties to them combine for the purpose of creating a inonopoly in restraint of trade, to prevent competition, to control and thus to limit production, to increase prices and maintain them. (Cummings v. Union Blue Stone Co., 164 N. Y. 401 and cases cited.) While contracts between vendor and vendee in restraint of trade will be upheld, they are not to be treated with special indulgence. They are intended to secure to the purchaser of the good will of a trade or busi- ness a guaranty against competition by the vendor. When this object is accomplished in the absence of any further precise and clear stipulation,; it will not be presumed that more was intended. ( Greenfield v. Gillman, 140 K Y. 168.) . In order to invalidate a contract on the ground that it is immoral or against public policy, it should appear that the agreement itself con^ templated illegal acts or acts condemned as against good morals or public policy ; it is not sufficient that acts were done which might be condemned. (Appleton & Co. v. Warlasse, .92 Misc. 42, 155 JST. Y. Supp. 987.) .; A provision in a lease that it shall not be put in evidence in an action between the parties yeUting Jp the subject matter thereof, is not enforcei able, for the court cannot permit itself to be ousted of the right to consider CONTEACTS GENEEILLY Ai?^D' EiaHTS OF PAETIES. 49 competent evidence by a provision in a contract that it shall not be put in Evidence, {Leak, etc.. Orphan Rouse v. Hoyle, 19 Misc. 301, 139 N. Y. ■Supp. 1098.) § 31. Validity of contracts ; enforcement of illegal contract. , It is a general rule that the courts will not aid either party in enforcing an illegal executory contract; nor, if executed, will they aid either party in setting it aside or in recovering back what has passed under it. {Nellis ■w. Clark, i Hill, 424; Haynes v, Budd, 83 N. Y. 251; Woodworth v. Bennett, 43 N. Y. 273; Knoivleton v. Congress S Empire Spring Co., 57 N. Y. 518; Goodrich v. Houghton, 134 JST. Y. 115; Materne v. Hor- tvitz, 101 N. Y, 469; Doucet v. Massachusetts Bonding & Ins. Co., 180 App. Div. 599, 167 IST. Y. Supp. 892.) This rule applies where the parties to the illegal contract are equally in fault and equally guilty of violating the statute ; and the court will, under . certain circumstances, relieve a party to a contract which the other party was prohibited by statute from making. {Tracy v. Talmage, 14 N. Y. 162 ; Curtis v. Leavitt, 15 N. Y. 9 ; Sacketts Earlor Bank v. Codd, 18 N. Y." 240 ; Irwin Y. Curie, 111 E". Y. 409.) Therefore, when a contract, otherwise unob- jectionable, is prohibited by a statute which imposes a penalty upon one of the parties only, the other is not in pari delicto, and where the contract is not malum in se he may recover as upon an implied assumpsit against the party prohibited or upon whom the penalty is imposed for any money or property which he has advanced upon such contract. {Akers v. Muiual Life Ins. Co., 59 Misc. 273 ; 112 N. Y. Supp. ,254.) § 32. Contracts void and contracts voidable. . A contract may be void, or it may be merely voidable, and there is a broad distinction between the two as to the rights and liabilities of the parties, .:■'])■ Using the term in its exact sense, and limiting it to the parties them-t selves,. a void contract is binding upon neither party and cannot be ratified. Even if ratified in form by both, it would be a new contract and would take effect only from the date of the attempt at ratification. A voidable ^ntract, on the other hand^ binds one party but not the other, and the latter may rescind or ratify at pleasure. , (Blinn v. Schwarz, 177 N. Y. 252, 259.) Contracts to defraud creditors, contracts made under duress or while <»ie of the parties was intoxicated and the like, are not void but voidable at the option of the injured party, while contracts to do acts forbidden by law, such, as refusing, tb.obey al.stibpoena, are utterly void. (Blinn v. 4 60 CIVIL LAW A3S^n PRACTICE. ,._ : ^ ,0 Schwarz, 177 N. T. 252, 259.) A contract proctare^ by duress exercisegl by means of threats is not void but voidable ; and as a general rule only the party upon whom the duress was exercised may take advantage of it to avoid the contract. The right of avoidance is purely personal to the party coerced, who must act within a reasonable time to avoid the con^ ■tract. {Colon <& Co. v. East One Hundred and Eighty-ninth Street Bldg. Co., 141 App. Div. 441, 126 IST. Y. Supp. 226.) The contracts of infants are not absolutely void but only voidable. (Parsons v. Teller, 111 App. Div. 637.) As to contracts purely executory it must be shovra that an infant party ratified them after he became of age before they can be enforced' against him. (Beardsley v. Hotchkiss, 96 M". Y. 201.) An executory contract relating to the personal property of an infant may be avoided by the infant during infancy. (Bool v. Mix, 17 Wend. 119 ; Staff ord v. Boof, 9 Cow. 626 ; Chapin v. Shafer, 49 N. Y. 407; Petvie v. Williams, 88 Hun, 292, 34 N. Y. Supp. 670.) The privi- lege thus allowed to infants by the law is entirely for their benefit and protection, and other parties cannot set it up for their own benefit. (Jachr son V, Carpenter, 11 Johns. 639, 543.) As to the executed contracts of infants, such as deeds of lands or conveyances of personal property, they will generally be deemed to be ratified unless disaffirmed during infancy or within a reasonable time thereafter. (Beardsley v. Hotchhiss, 96 N. Y; 201, 211.) On arriving at full age they may ratify and confirm their contracts or rescind and break through them as shall seem most for their advantage (Jaelcson v. Carpenter, 11 Johns. 539 ; Oreen v. Green, 69 iN". Y, 533) though the ordinary rule is that although an infant may rescind an executed contract at will, he must restore or offer to restore to the party with whom he contracted what he received under the contract. (Mutual Milk & Cream Co. v. Prigge, 112 App. Div. 652, 98 N, Y. Supp. 458; Bice v. Butler, 160 K Y. 578; Pierce v. Lee, 36 Misc. 870; Crummey v. Mills, 40 Hun, 370 ; Wheeler & Wilson Mfg. Co. v. Jacobs, 2 Misc. 236.) Contracts of lunatics and infants are similar in their character and in their effect on the contracts of the parties. The deed of a person of unsound mind who has not been judicially declared incompetent is void- able, and not absolutely void. (Blinn v. Schwarz, 177 N. Y. 252; Smith V. Byan, 191 JST. Y. 452 ; LevAs v. By an, 123 App. Div. 497.) § 33. Modification of contract; Before the breach of a written contract not under seal, it may be modified, or the performance thereof wholly waived by the oral agreement of the parties, provided the substituted contract is not one which tho CONTKACTS GENEKALLY AND EIGHTS OF PAETIES. 51 Statute of Frauds requires to be in writing. (Farrington y. Brady, 11 App. Div. 1, 42 K Y. Supp. 385 ; Eagle Iron Works v. Farley, 83 App. Div. 82, 82 N. Y. Supp. 503 ; Solomon v. Vallette, 152 N. Y. 147.) But a cohtract or covenant under seal cannot be modified by a parol unexecuted agreement {Voege v. Ronalds, 83 Hun, 114, 31 N. Y. Supp. 353; Coe v. Hobby, 1 Hun, 157, 72 N. Y. 141; Smith v. Kerr, 33 Hun, 567, 571, 108 ]Sr. Y. 31; Delacroix v. Bvlhley, 13 Wend. 71; Dodge v. Crandall, 30 IST. Y. 306, 307; Farrington -y. Brady. 11 App. Div. 1; Howie v. Kasnowitz, 83 App. Div. 295) ; but an executed parol modification of a sealed instrument is valid and enforceable. (Davis v. Bingham, 39 Misc. 299; McCreery v. Day, 119 N. Y. 1; McKenzie v. Harrison, 120 N. Y. 260.) , A written unsealed agreement containing a stipulation that no modifica- tion thereof should be binding unless in writing duly accepted by the parties, may be orally modified by the assent of the parties. (General El. Co. V. Nat. Contracting Co., 178 N. Y. 369.) § 34. Rescission of contract. One who has been induced to enter into a contract by means of fraud- ulent representations may rescind the contract on discovery of the fraud. (Hwtcheon v. Johnson, 33 Barb. 392.) A contract, although fraudulently procured, is not void, but is voidable at the election of the party defrauded. He may either afiirm or disainrm the contract, but he cannot do both, either in whole or in part. He should make his election at the earliest moment after discovery of the fraud and so proceed thereafter that there may be no question as to whether he has elected to affirm or disaffirm the contract. The taking of any benefit under the contract after knowledge of the fraud, or changing the condition of the property which is the subject matter of the contract, is a ratification of it. {Cohh v. Hatfield, 46 N. Y. 533; Masson v. Bovet, 1 Denio, 69 ; Outcault v. Bonheur, 120 App. Div. 168.) Effective rescission requires a lawful right to rescind, due notice of an intention to rescind, and the restoration of benefits received by the party attempting to rescind so that the other party may be placed in statu quo. Even if the most complete right of rescission exists, it cannot be exiercised without a return or an offer to return such benefits. (Cox v. Stokes, 156 N. Y. 491, 506; Cobb v. Hatfield, 46 IST. Y. 533; Baker v. iiolbins, 2 Denio, 136 ; Gould v. Cayuga County Nat. Bank, 86 IST. Y. 75 ; Moyer v. Shoemaker, 5 Barb. 319; Getty v. Devlin, 54 N. Y. 403, 415; hrough inadvertence he CONTKACTS GENERALLY AND .EIGHTS OF PARTIES. 57 omitted to do some unsubstantial things, he is not entitled to recover anything until he shows that the things omitted, if worthy of any attention whatever, can be supplied for a comparatively small sum, in which event he can recover the contract price after deducting that sum. But he must furnish the evidence by which to measure the eonjpensation for the defects as that is the substitute for his failure to do as he agreed. ,{8pence y. Earn. 163 K T. 220.) ...... T'he doctrine of substantial performance is also applied in actions by a vendor to enforce an executory contract for the manufacture and sale of goods: {Miller v. Benjamin, 142 N. Y. 613) to a contract for advertising; {Dauchey v. Drake, 85 N. Y^ 411) and to a contract to make and put up eome fourteen or fifteen hundred signs for advertising purposes; (Des- mond-Dunne v. Friedman-Doscher Co., 162 N. Y. 486) and doubtless is applicable in other cases where exact performance is rendered practically impossible by infinite detail in the matters to be performed. But in no case must there be willful! or intentional departure from the requirements of the contract, the defects of performance must not pervade the whole, or be so essential as to substantially defeat the object the. parties intended to accomplish. (Miller v, Benjamin, 142 H. Y. 613; Fox v. Davidson, 30 App. Div. 159.) 58 CIVIL LAW AND PRACTICE. CHAPTER V. SPECIAL CONTRACTS TO LABOB. Section 1. Parties to contracts of employment. 2. Necessity of writing. 3. Definiteness required. 4. The term of employment. 5. Compensation. 6. Discharge of employee. 7. Remedy by servant for wrongful discharge. § 1. Parties to contracts of employment. The general rules of law in relation to contracts apply to contracts of employment. As in all other contracts there must be parties capable of contracting. The old common law doctrine as to the disability of married women to contract has been substantially abrogated in this State by the passage of thd acts in relation to married women, and much that was left vague and obscure by those acts in relation to the rights and liabilities of the parties to contracts having for their subject matter the employment of married women, has been rendered reasonably clear by recent legislation. Formerly it was often difficult to determine whether wife or husband was legally entitled to the compensation for services rendered by the wife under a contract made by either. It is now provided by statute as follows : " A married woman shall have a cause of action in her own sole and separate right for all wages, salary, profits, compensation or other remuneration for which she may render work, labor or services, or which may be derived from any trade, business or occupation carried on by her, and her husband shall have no right of action therefor unless she or he with her knowledge and consent has otherwise expressly agreed with the person obligated to pay such wages, salary, profits, compensation or other remuneration. In any action or proceeding in which a married woman or her husband shall seek to recover wages, salary, profits, compensation or other remuneration for which such married woman has rendered work, labor or services, or which was derived from any trade, business or occupation carried on by her or in which the loss of such wages, salary, profits, compensation or other remuneration shall be an item of damage claimed by a married woman or her husband, the presumption of law in all such cases shall be that such married woman is alone entitled thereto, unless the contrary expressly appears." (Domestic Relations Law, § 60.) SPECIAL CON^TKACTS TO LABOR 59 .■ The enabling acts which have conferred valuable personal and property .jights upon married women 'have had no effect upon the duties which the "Spife owes to the husband at common law ; but have given her a clear right to effectually contract for compensation for services rendered for others •distinct from those duties which she owes to her husband in the marital relation. (Stevens v. Cunningham, 181 IT. Y. 454.) It is provided by statute that " where a minor is in the employment of a person other than his parent or guardian, payment to such minor of his wages is valid, unless such parent or guardian notify the employer in writing, within thirty days after the commencement of such service, that such wages are claimed by such parent or guardian, but whenever such ■notice is given at any time, payments to the minor shall not be valid for services rendered thereafter." (Domestic Relations Law, § 72.) Ordinarily, where one person renders services for another at his request, the law will imply a promise to pay therefor what such services are i'easonably worth; but between persons living together as members of the same family, bearing towards each other a family relation, no promise to pay will be implied, and no action will lie unless the services were rendered at the request of the party receiving them under a promise to pay therefor, or under such circumstances as show that the party receiving them expected to pay and the other to receive pay therefor, or that the services were rendered with the understanding between the parties that compensation therefor would be made by will. (Marion v. Farnan, 68 Hun, 383.) Because of the relation between parent and child the presumption is that services rendered by the child for the parent were gratuitous and such as were due from the ohild to the parent. (Matter of Dusenberry, 10 Misc. 633.) But a father may emancipate his minor child, even by parole, and after such emancipation may make contracts with him and become liable to him for wages, or the child may make valid contracts with others for his services. (Kain v. LarTcin, 131 N. Y. 300.) § 2. Necessity of vvriting. The contract of 'hiring may be oral or written, except that where the agreement by its terms is not to be performed within one year from the making thereof, the agreement, or some note or memorandum thereof, must be in writing and subscribed by the party to be charged therewith, or by his lawful agent, as otherwise it will be void. (Personal Property Law, § 31.) An oral contract for the employment of a person for the term of one year, the employment to commence on the following day, is void: (Billington v. Cahill, 51 Hun, 132, 4 IST. Y. Supp. 660; Levison v. Stix, io Daly, 229 ; Jonap v. Preger, 59 Misc. 187, 110 K Y. Supp. 483. And 60 CIVIL LAW AND PEACTICE: L ■see Priqe y. Press Publishing. Co., 117,, App.'Diy. 85,4, 103 M". Y. Supp. 296.) But a contract of employment running from September 15,>191Q, ,to September 15, 1911, does not 33 a matter of law cover a year and a day so as to be forbidden by the Statute bf Frauds. {Cohen v. Levy, 77 Misd. 98, 136 JSr. Y. Supp. 56.) A parol agreement, -wliich does not provide ■when the term of service will terminate, nor how long it should continue, is not one which " by its terms "; could ^ot be performed within a year, and therefore is not rendered void by the statute. (Jagau v. Goetz, 1.1 Miss. 380 ; Kent v. Kent, 62 N. Y, 560.) : , i Where an employer has the benefit of one's services under a contract, he cannot contend that the agreement was void because it was not in writings for the Statute of Frauds cannot be invoked to perpetrate a fraud. (Maune V. Unity Press, 143 App. Div. 94,. 127 IST; Y. Supp. 1002.) Ordinarily^ where the contract of employment; is one which is forbidden by the Statute of Frauds, the employee is not entitled: to, recover thereupon, but he may recover upon a quantum meruit for the reasonable value of thef services rendered under the void contract. (Hartwell v. Young, 67 Hun, 472; Booker v. Hejfner, 95 App. Div. 84.) / i § 3. Definiteness required, A contract of employment, whereby the' employer agrees to pay the employee a sum " not exceeding " a named amount, is void for indefinit^- ness. (United Press \. N^ew Yorh Pfess Co., 1G4:1>^.Y.A0Q.) Likewise^ an agreement to pay the employee a certain named salary and a " fair " share of the profits, is ineffective as to the share of the profits because it is not as definite as required by the law. (Varney v. Ditmars, 217 N. Y. 223.) But a contract of employment for a term of years at a salary of " not less than $45 per week," is enforceable to the extent of $45 per week, for the contract is definite to that extent. (Bosbach v. Sackett & Wilhelms Co., 134 App. Div. 130, 118 N". Y. Supp. 846.) § 4. The term of employment. A hiring at a stated sum per year, month or week, no time being specified at which the employment should terminate, is an indefinite hiring, or a hiring at will, and may be terminated at any time by either party. (Martin v. New York Life Ins. Co., 148 N, Y. 117; Watson v. Gugino^ 204 N. Y. 535; Gressing v. Musical Instruments Sales Co., 169 App. Div. 38, 154 N, Y. Supp. 420, 222 N. Y. 215 ; Summers v. Phenix Ins. Co., 50 Misc. 181 ; Byrne v. Weir, 38 Misc. 741 ; Outerbridge v. Campbell, 87 App. Div. 597.) Where the contract is not for a specified time, it may be terminated at SPECIAL CONTRACTS TO LABOR. 61 the will of either of the contracting parties. {Grotty v. Erie B. B. Co., Ud App. Div. 262, 133 K Y, Supp. 696 ; Leifer v. Scheinman, 179 App. Div. 665, 167 IST. Y. Supp. 10'5.; Auburn Draying Co. v. Wardell, 178 App. Div. 270, 165 IST. Y. Supp. 469.) Eut a contract of employment, which in terms provides that it may be terminated by either party " on thirty days notice after January 1, 1913," does not create a hiring at will which may be terminated without (iause prior to the date specified, but it can only be terminated without cause after such date. (Marshall v. SacTcett Co., 166 App. Div. 141, 151 K Y. Supp. 1045.) In construing a contract of employment, it is to be considered that it is unlikely that the parties should, in words clearly expressive of a design to fix a long term of employment, agree in the same instrument to make it terminable at the •will of either. The dominant design should not be frustrated by giving a strict and rigid meaning to general words or expressions without regard to the context, the purposes expressed and the inherent nature of the con- tract. (Maune v. Unity Press, 160 App. Div. 778, 146 IST. Y. Supp. 127.) Where there has been a hiring for a year under a written contract, and after the expiration of the term the employee continues in the same employ- ment, receiving the same pay as under the written contract, without any understanding or agreement, verbal or otherwise, limiting the term of such continued employment, the law implies an agreement for a renewal of the contract upon the same terms for another year. (Mendelson v. Browner, 124 App. Div. 396; Adams v. Fitzpatrich, 125 N. Y. 124; Brightson v. Claflin Co., 180 IST. Y. 76 ; Trejfinger v. Groh's Sons, 116 App. Div. 250, 185 N. Y. 610; Bennett v. Mahler, 90 App. Div. 22; Wood v. Miller, 78 Misc. 377, 138 N. Y. Supp. 562.) The death of the servant during the term of his employment ends the contr-act whether his services involved skilled or common labor; and upon the same theory the contract ends with the death of the master. (Lacy V. Getman, 119 'N. Y. 109.) And where a salesman is employed for a definite term by a copartnership, and during the term the copartnership is dissolved by the death of one of the partners, the contract of employment is thereby terminated. (Mason v. Secor, 76 Hun, 178, 27 IST. Y. Supp. 570.) Where a contract of employment provides that the servant shall perform his sei-vices to the complete satisfaction of his master, the master has the right to discharge him at any time he is dissatisfied with his services. (Diamond v. Mendelsohn, 156 App. Div. 636, 141 N". Y. Supp 775 ; Waldt v. Goodwin Mfg. Co., 165 App. Div. 244, 150 N. Y. Supp. 831 ; Bech v. Only SlciH Co., 176 App. Div. 867, 163 K Y. Supp. 786.) But a con- tract for a definite time is not converted into one dependent upon the 62 CIVIL LAW AND PKACTICE. satisfaction of the employer, merely because it contains a recital that thd employee is desirous of obtaining and filling the position to the satisfaction of the employer. (Heller v. Bodensich, 81 Misc. 222, 142 IST. Y, Supp. 496.) § 5. Compensation. Where a contract of employment is for no definite time, and the em- ployee may leave at any time, he is entitled to be paid for the exact timg he works (Kelly v. Walton, 6 Misc. 152) ; and where the hiring is by the week, and the employee does not work the entire week, he is not entitled to a full week's pay without a legal, excuse for not continuing in employ- ment t'he full week. (Strack v. Hurd, 41 St. Eep. Y77 ; Eden v. Silber- herg, 89 App. Div. 259.) Nonpayment of monthly wages is not equiva- lent to a discharge, and, if the servant quits the employment in the middle of the following month, he can recover only for the actual wages earned. (Wheaton v. Higgins, 90 N. Y. Supp. 1041; Barnette v. Cohen, 110 ]Sr. Y. Supp. 835.) Where the contract provides for payment of wages at stated periods a failure to pay according to the contract furnisies the employee a good excuse for putting an end to the service unless payment at the time is expressly waived by the employee. (Tichenor v. Brick- heimer, 40 Misc. 194.) Where a person has entered into a contract to work for another an entire year, and after working several months, without cause, and without the agreement or fault of his employer, of his own volition, goes away, aban- doning the performance of his contract, he is entitled to no compensation for the labor actually performed. (Lantry v. Parks, 8 Cow. 63 ; Jennings v. Camp, 13 Johns. 94.) Where the parties in making a contract for labor have failed to fix a. time for payment, the law will fix it at the time performance is completed. (Gurski v. Doscher, 112 App. Div. 345, 98 K Y. Supp. 588; Stewart v. Newberry, 220 IST. Y. 379.) AYhere by agreement between the parties, the compensation of one as salesman for the other is to be a commission on sales, the servant or em- ployee is entitled to commissions on orders for goods solicited and obtained by him, although the goods are not delivered until after his discharge, and the commissions, by the agreement, are not payable until delivered; (Dibble v. Dimmick, 143 N. Y. 549.) Although the sales made by a traveling salesman are small as compared with his salary, if the employee honestly endeavored to make sales and did not succeed, it is one of the risks the employer took, and is no defense to an' action for the salary., (Bloom V. Cox Shoe Mfg. Co., 154 N". Y. 711.) . .[ SPECIAL CONTEACTS TO LABOR. '6^3 The presumption is th.at wliere a party enters into the service of another for a stipulated annual compensation and continues beyond the year, that he does so on the same terms. {Adams v. Fitzpatrich, 125 N. Y. 124'; Douglass v. Merchants' Ins. Co., 118 liT. Y. 484; Huntingdon v. Claflin, 38 N. Y. 182; Vail v. Jersey Little Falls Mfg. Co.. 32 Barb. 564; Lichterihein v. Fisher, 87 Hun, 397; Wood v. Miller, 78 Misc. 377, 138 .N. Y. Supp. 562.) The continuance in the employment with the consent of the employer after the expiration cf the year is equivalent to a new hiring upon the same terms ; and the fact that the employer did not con- tinue the business during a portion of the time will not affect the con- struction of the contract of hiring, or the rights or liabilities of the parties thereunder. (Vail v. Jersey Little Falls Mfg. Co., 32 Barb. 564 ; V\^allace V. Devlin, 36 Hun, 273.) But where the employer, after several years of employment of a salesman at an annual salary, forms a copartnership with others, the continuance of the salesman, in the same capacity after the formation of the partnership creates no presumption that the salesman continued in the employment of the partnership en the same terms as when in the employment of the original employer. (Mason v. Secor, 76 Hun, 178.) § 6. Discharge of employee. 'Ko particular form of words are necessary to constitute a diseharge. Any language that gives the employee to understand that the employer no longer requires his services is sufficient to operate as a discharge. (Ryan V. The Mayor, 154 N. Y. 328 ; Arnold v. Adams, 27 App. Div. 345 ; Jaclc- son V. Mayor, etc., of N. Y., 87 Hun, 296; Coy v. Martin, 29 Hun, 296; Coy V. Martin, 29 App. Div. 418; Sigmon v. Goldstone, 116 App. Div. 490, 101 ]Sr. Y. Supp. 984.) While it is not possible to formulate any hard and fast rule which will in all cases determine whether the discharge of an employee before the expiration of the agreed term is justifiable or otherwise, it may be stated generally that the cause which will justify the discharge must be in some way connected with the duties of the employment or affect the master's interest injuriously. (Burt v. Catlin, 65 App. Div. 456; Brownell v. Ehrich, 43 App. Div. 396 ; Preyer v. Bidwell, ,11 IST. Y. Supp. 71.) Much will necessarily depend upon the nature of the business of the employer, the duties assumed by the employee, and the relation of the duty omitted to that business. A discharge may be justifiable although the discharged employee is net in fault, as in case of serious illness lasting, or likely to last, so long as to interfere substantially with the interests of his employer. (Gaynor v. Jonas, 104 App. Div. 35; McGarrigle v. McCosher, 83 App. 64 ClYIh I-AW AND PEACTICE. Div. 255, 82 N. Y. Supp. 494.) And, on the other hand, although tha immorality of the employee would justify his discharge under certain con- dition not existing, it would not have that effect if it in no way affected the employer's business. (Brownell v. Ehrich, 43 App. Div. 369.) • Frequent intoxication (Mowbray v. Gould, 83 App. Div. 255, 82 N. Y. Supp. 102), disobedience of reasonable orders not inconsistent with the contract of hiring (Jerome v. Queen City Cycle Co., 163 N". Y. 351; Costel v. Jeantet, 108 App. Div. 201), repeated violations of a rule for- bidding smoking in the part of a factory where inflammable substances are in constant use (Honigstein v. Hollingsworth, 39 Misc. 314), and willful disobedience of a direction of the employer, though it be as to matter of form (Russell v. Inman, 79 App. Div. 227, 79 IST. Y. Supp. 681), are illustrations of grounds sufficient to justify the discharge of an employee before the expiration of his term of service. A master is entitled to direct how a servant shall perform his duties and in so doing he is entitled to consult his own convenience as well as the interest of the business, and to prescribe sUch hours of work for each employee as shall in iis opinion best conduce to the efficient administra- tion of the business as a whole. So long as such directions are not unrea- sonable the servant is bound to obey them, and it is no answer to a charge of disobedience for the servant to say that some other method of doing the business was better than that which the master chose, or that notwith- standing the disobedience of instructions he managed in his own way to get the work done somehow. (Macauley v. Press Pub. Co., 170 App. Div* C40, 155 K Y. Supp. 1044.) The retention of a servant in the master's employ after knowledge of breaches of duty, does not condone the offenses and prevent their use thereafter as grounds of discharge where the breaches were committed from time to time and continued until the discharge (Cray v. Shephard, 147 ]Sr. Y. 177 ; Siselman v. Cohen, 25 Misc. 529) ; and the employer may avail himself of a breach of duty which existed as a ground of discharge at the time, although it was then unknown to him. (Green v. Edgar, 24 Hun, 4:14: •,Arkush v. Hannan, 60 Hun, 618 ; HvicUnson v. Washburn, 80 App. Div. 367, 80 IST. Y. Supp. 691; Rafalo v. Edelstein, 80 Misc. 153, 140 N. Y. Supp. 1076.) The motive of the master in discharging his servant is unimportant if a legal ground for discharge exists. (Jack- son V. N. Y. Post Graduate Hospital, 6 Misc. 101.) § 7. Remedy by servant for wrongful discharge. It is a well-settled rule that if the master, for good and sufficient cause, discharge the servant before the expiration of the term of service ; or if SPECIAL CONTEACTS TO LABOE. 65 the servant, without good cause, quit service before tlie end of his term, he can recover nothing for the part of the term past, nor for the future. But when the servant ias served his full term, this rule has no applica- tion. (Turner v. Kouwenhoven, 100 N. Y. 115.) It is settled law in this State that upon the wrongful discharge of an employee the only action he can bring is for the recovery of damages for the breach of the contract of employment, and that -he cannot maintain an action for wages on the theory of constructive service. The breach being single, but a single action can be brought on it, and in that action the plaintiff must recover all his damages. (Wieland v. Willcox, 40 App. Div. 213; Waldron v. Hendrickson, Id. 7; Weed v. Burt, 78 N, Y. 191; Howard v. Daly, 61 JST. Y. 362; Basset v, French, 31 K Y. Supp. 667 ; Fallon v. Farler, 30 Misc. 626 ; Perry v. Dickerson, 85 N. Y. 345.) A claim for wages earned and due before dismissal, and for damages for a wrongful dismissal, constitute two separate and independent causes of action. The right to recover wages earned and due before dismissal is complete and perfect before the right to damages accrues. Upon the wrongful dismissal a new cause of action arises, wholly disconnected in its origin and nature with the claim for wages. A suit by a servant for wages due is consistent with the continuance of the contract of employ- ment and of actual service thereunder. A suit for a wrongful dismissal proceeds upon the ground of an entire repudiation of the contract by the master. The suit for wages is brought to recover for services rendered ; the action fpr wrongful dismissal, to recover compensation for the loss of a situation, and for not being allowed to serve and earn wages under the contract. In an action for a wrongful dismissal occurring in the middle of a quarter or period, before wages are due and payable under the con- tract of employment, com:iensation for services in the broken quarter or period, may be recovered as part of the damages, for by the wrongful dis- missal the plaintiff was prevented from earning the wages for the broken quarter under the contract, and compensation for the services actually rendered is justly due as part of the damages; but wages earned and due at the time of such dismissal are not recoverable in such action, as the cause of action for wages is independent of the wrongful dismissal and are in no sense a part of the damages resulting therefrom. {Perry v. Dickerson, 85 N. Y. 345. See Moody v. Leverich, 4 Daly, 401.) If a servant is wrongfully discharged, he has.no action for wages except for past services rendered and for sums of money that have come due. As far as any other claim on the contract is concerned, he must sue for the injury he has sustained by his discharge and is not allowed to serve and earn the wages agreed upon. (McCargo v.Jergens, 206 N. Y. 363.) 5 66 CIVIL LAW AND PRACTICE. A servant wrongfully discharged has but two remedies growing out of the wrongful act: (1) He may treat the contract of hiring as continuing though broken by the master, and may recover damages for the breach. (2) He may rescind the contract, in which case he could sue on a quantum meruit for services actually rendered. These remedies are independent of, and additional to his right to sue for wages for sums actually earned and due by the terms of the contract. {Howard v. Daly, 61 N. Y. 362, 369, 370; Milage v. Woodward, 186 IST. Y. 252.) Where an employer discharges a person from his employ, the discharged employee may wait i:ntil his wages become due and then recover them. But this rule is to be taken with restrictions. He recovers not for ser- vices rendered, but damages for breaking the contract by discharging him before the termination of his agreement — that is, for refusing to employ and pay him according to the contract. If it appears that he was idle and could not obtain other employment, his damages would be the whole compensation agreed upon, and that only. (Heim v. Wolf, 1 E. D. Smith, 73; Milage v. Woodward, 186 N. Y. 252; Cullen v. Battle Island Paper Co., 124 App. Civ. 113, 108 JST. Y. Supp. 921 ; Howard v. Daly, 61 N. Y. 362, 371.) If it appears that the employee obtained other employment, then he is entitled to only a partial recovery. (Heim v. Wolf, 1 E. D. Smith, 73.) It is undoubtedly the duty of the discharged employee to reduce, if possible, the damages sustained by him by reason of his dis- charge. But in an action to recover damages for a breach of the contract the burden of proof is on the defendant to show either that the plaintiff has foimd employment elsewhere, or that other and similar employment had been offered and declined, or at least that such employment might have been found. The plaintiff is not bound to show affirmatively, as a part of his case, that such employment was sought for and could not be found. (Costigan v. Mohawh & H. R. B. Co., 2 Denio, 603 ; Howard v. Daly, Gl N. Y. 362, Zll; Milage v. Woodward, 180 IST. Y. 233.) The mere offer by an employer to re-employ his employee whom he has wrongfully discharged may be considered in mitigation of damages, but it does not, regardless of the circumstances and cor.ditions existing at the time between the employer and employee, furnish the employer with a complete defense to en action for damages for breach of contract. A wrongfully discharged employee is not bound to accept employment from his former employee in preference to other employers. His sole duty is, in mitigation of damages, ta accept such employment as is offered him by any one, even including his former employer, who has already broken one contract, where the terms and conditions of such proffered employment are reasonable. (Heifermcn v. Greenhut Cloak Co., 83 Misc. 435, 145 N. Y. Supp. 142.) SALES AND WARRANTIES. 67 CHAPTER VI. SALES AND WAEEAUTIZS. Beotion 1. Nature of contract of sale. 2. Offer and acceptance. 3. Form of contract of sale; Statute of Frauds. 4. Sale or return. 5. Time of performance. 6. Place of delivery. 7. When title passes. 8. Warranties; in general. 9. Implied warranty of tit-e. 10. Implied warranty in sale by description. 11. Implied warranties of quality. 12. Implied warranties in sale by sample. 13. Eemedies of seller 14. Eemedies of seller 15. Eemedies of seller 16. Eemedies of seller 17. Eemedies of seller 18. Eemedies of seller 19. Eemedies of se'.ler 20. Eemedies of buyer 21. Eemedies of buyer 22. Eemedies of buyer 23. Eemedies of buyer 24. Eemedies of buyer in general. lien for purchase price. stoppage in transit. right of resale. right to rescind sale. action for price. damages for nonacceptance by buyer. in general. action for conversion. action for failure to deliver. specific performance. breach of warranty. 25. The Personal Property Law relative to sales. § 1. Nature of contract of sale. A sale of goods is defined by statute as an agreement whereby the seller transfers the property in goods to the buyer for a consideration called the price. And a contract to sell goods is defined as a contract whereby the seller agrees to transfer the property in goods to the buyer for a con- sideration called the price. (Personal Property Law, § 82. See B. C. & G. Consolidated Laws.) To constitute a valid sale there must be parties capable of contracting ; a thing which is the object of the contract; a price agreed upon, or a price to be regulated by actual value; and the consent of the parties to the contract. § 2. Offer and acceptance. Ordinarily a sale is the result of a definite proposition by one party and its acceptance by the other. Until an offer is made by one party, 68 CIVIL LAW AND PKACTICE. complete and definite in all its material terms, the other cannot, by the mere acceptance of the proposition, make a valid contract of sale. In other words, so long as there remains any of the material conditions of the contract to be settled and agreed upon, no binding agreement exists. (Schenectady Stove Co. v. Holbrook, 101 IST. Y, 45.) An offer in the nature of a proposition for a contract may be withdrawn at any time before acceptance. (Id.) In this respect it differs from an option given by one party to another to exercise within a definite period, which, if given for a consideration, cannot be withdrawn until the end of the period prescribed for exercising the option. {Benedict v. Pincus, 191 N. Y. 377; McVicar v. Keating, 19 App. Div. 581, 582.) An agreement to purchase a business, part of the consideration to be paid at once, part on a day named, and the " balance to be agreed upon later," is not a contract since the minds of the parties have never met as to the payment of the balance. (Muller v. Idler, 126 App. Div. 366.) It is well settled that in order to establish a legal contract of sale througi. the medium of correspondence, it must be made to appear that there was not only a plain, unequivocal offer, but that the acceptance of the offer was equally plain and free from ambiguity. In other words, there must have been an exact meeting of the minds of the contracting parties in respect to every detail of the proposed contract, and if the precise thing offered was not accepted, or if the acceptance was in any manner qualified by conditions or reservations, however slight they may have been, no valid contract is established, and, on the other hand, the modified or qualified acceptance is to be treated as a rejection of the offer. (Myers v. Smith, 48 Barb. 614; TJUman v. Day, 38 Hun, 22%; Myers v. Trescott, 59 Hun, 395 ; Sidney Glass Works v. Barnes & Co., 86 Hun, 374 ; Mahar v. Conip- ton, 18 App. Div. 536.) It is equally well settled that a proposition by one party by letter to another party at a distance, containing a specific offer, which is unconditionally accepted by the latter, will constitute a valid contract between them (Mactier v. Frith, 6 Wend. 103; Clark v. Dales, 20 Barb. 42), from the time of the deposit of the letter of accept- ance in the post-office, addressed to and to be transmitted to the party making the offer. (Vassar v. Camp, 11 N. Y. 441.) " If a negotiation be conducted in writing, and even if there be a dis- tinct proposition in a letter, and a distinct assent, making a contract, and then the parties reduce this contract to writing, and both execute the instrument, this instrument controls the letters, and they are not permitted to vary the force and effect of the instrument, although they may sometimes be of use in explaining the terms." (2 Pars. Cont., 6th Ed., p. 548.) And where there have been oral negotiations resulting in the giving of SALES AND WAERANTIES. C9 a bill of sale, it is by this instrument alone that the rights and liabilities of the parties are to be determined. {Udell v. Sarafian, 19 Misc. 642.) § 3. Form of contract of sale ; Statute of Frauds. Subject to certain exceptions, a contract to sell or a sale may be made in writing (either with or without seal), or by word of mouth, or partly in writing and partly by word of month, or may be inferred from the conduct of the parties. (Personal Property Law, § 84. See B. C. & G. Consolidated Laws.) Section 85 of the Personal Property Law, with reference to the contracts which are required to be in writing, provides as follows : " 1. A contract to sell or a sale of any goods or choses in action of the value of fifty dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memo- randum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf. " 2. The provisions of this section apply to every such contract or sale, notwithstanding that the goods may be intended to be delivered at some future time or may not at the time of such contract or sale be actually made, procured or provided, or fit or ready for delivery, or some act may be requisite for the completing thereof, or rendering the same fit for delivery ; but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in the ordinary course of the seller's business, the provisions of this section shall not apply. " 3. There is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, expresses by words or conduct his assent to becoming the owner of those specific goods." In order to take a sale of goods over $50 in value out of the Statute of Frauds, where there is no writing evidencing the contract, there must be not only a delivery of the goods by the vendor, but an actual acceptance by the vendee, with the intention of taking possession- as owner, which intention must be indicated by some equivocal act. (Brake Hardware Co. V. Dewitt, 142 App. Div. 189, 126 N. Y. Supp. 868.) § 4. Sale or return. There is a class of sales on condition, called contracts of sale or return, where the property in the goods passes to the purchaser, subject to his option to return them within a fixed or a reasonable time; and if the pur- chaser fails to exercise his option to so return them the sale becomes absolute, and the price of the goods may be recovered in an action for 70 CIVIL LAW AND PEACTICE. goods sold and delivered. If no time is fixed by the contract for the return, the option must be exercised in a reasonable time. What is a seasonable time is generally a question of fact, but may be under certain circumstances a question of law. (Greacen v. Poehlman, 191 !N". Y. 493.) Where goods are bought and paid for under an agreement that the vendor will take back at the invoice price any of the goods not sold by the end of the season, the title to the goods passes to the vendee at the time of the delivery. On the vendor's refusal to take back the goods as agreed, the vendee can either rescind and sue for the difference between the agreed price and the value of the goods, or treat them as belonging to the vendor and sue for the contract price, and upon electing to pursue the latter course he is entitled under section 134 of the Personal Property Law to a vendor's lien. (Capauno v. Italian Importing Co., 89 Misc. 449, 151 JSr. Y. Supp. 994.) § 5. Time of performance. It is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract to sell or sale. (Personal Property Law, § 122. See B. C. & G. Con- solidated Laws.) Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions ; that is to say, the seller must be ready and willing to give possession of the goods to buyer in exchange for the price and the buyer must be ready and willing to pay the price in exchange for possession of the goods. (Personal Property Law, § 123 ; Tipton v. Feitner, 20 IST. Y. 423 ; Williams v. Wilson, etc., Co., Ill App. Div. 442, 97 1^. Y. Supp. 731.) When the contract makes no provision as to the time of delivery and no time when payment shall be made, it is contemplated that the delivery shall be within a reasonable time and that payment shall be made upon delivery. (Orahf elder v. Vos- lurgh, 90 App. Div. 307; Weinberg v. Gash, 94 Misc. 303, 158 K Y. Supp. 179; Cinque v. Cassani, 43 App. Div. 381.) Subsequent and repeated requests for delivery of property sold after a breach by the seller in that particular do not bar the buyer from all claim for damages. Such requests may have the effect of barring the buyer from refusing to accept the property at a later date than the contract day, but do not necessarily preclude his right of damages. (Bailey v. Elm City Lumber Co., 167 App. Div. 42, 154 N. Y. Supp. 281.) § 6. Place of delivery. Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending in each case on SALES AND WAKKANTIES. 71 the contract, express or implied, between the parties. Apart frona any such contract, express or implied, or usage of trade to the contrary, the place of delivery is the seller's place of business if he have one, and if not his residence; but in case of a contract to sell or a sale of specific goods, which to the knowledge of the parties when the contract or the sale was made were in some other place, then that place is the place of delivery. (Personal Property Law, § 124 ; see B. C. & G. Consolidated Laws; Schijf v. Winton Motor Car Co., 90 Misc. 590, 153 N. Y. Supp. 961; Lenders v. Fahlherg Saccharine Works, 150 N. Y. Supp. 635; Dressier-Beard Mfg. Co. v. Winter Garden Co., 158 K Y. Supp. 875.) Where the seller agrees to deliver it at a certain place, he is bound to see that the delivery is properly made, and the title to the property remains in him until tihe agreement of sale and delivery is completed. (^Conroy v. Barrett, 95 Misc. 247, 157 K Y. Supp. 549.) § 7. When title passes. It is important in many cases, particularly where the property has become lost before its actual receipt by the buyer, to determine whether the title thereto has passed to the buyer or whether it still remains in the seller. This question is now largely governed by the provirions of the Personal Property Law. Where there is a contract to sell unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascer- tained. (Personal Property Law, § 98. See B. C. & G. Consolidated Laws.) Title does not vest in an article to be manufactured until finished and delivered, or ready for delivery and approved by the party for whom it is to be constructed. {Andrews v. Durant, 11 N". Y. 35 ; Interstate Steamboat Co. v. First Nat. Bank, 87 Hun, 93, 33 N. Y. Supp. 330.) If goods are sold, while mingled with others, by number, weight or measure, the sale is incomplete, and the title continues with the seller, until the bargained property is separated and identified. But if the goods sold are clearly identified, then, although it may be necessary to number, weigh or measure them in order to ascertain what would be the price of the whole at the rate agreed upon between the parties, the title will pass. Thus, if a flock of sheep is sold at so much the head, and it is agreed that they shall be counted after the sale in order to determine the entire price of the whole, the sale is valid and complete. But if a given number out of the whole are sold, no title is acquired by the purchaser until they are separated and their identity thus ascertained and deter- mined. This doctrine is well settled. (See Crofoot v. Bennett, 2 N. S. 258; Groat v. Gile, 51 K Y. 431, 437; Kimherly v. Patchin, 19 N. Y. 72 CIVIL LAW AND PKACTICE. 330; Burrows v. Whitalcer, 71 K Y. 291; Sawyer v, Waterhury, 116 N. Y. 371.) "Where there is a contract to sell specific or apcertained goods, the prop- erty in them is transferred to the huyer at such time as the parties to the contract intend it shall be transferred. For the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the eon- tract, the conduct of the parties, usages of trade and the circumstances of the case. (Personal Property Law, § 99. See B. C. & G. Consoli- dated Laws.) To aid in determining intention, the Legislature has pro- mulgated various rules. (Personal Property Law, § 100. See B. C. & G. Consolidated Laws.) Where there is a valid contract for the sale of personal property, and by its terms the property is to be shipped by the vendor to the vendee, a delivery to a responsible carrier, for the vendee, to be carried and deliv- ered to him, will ordinarily transfer the title to the vendee and place the property at his risk. {Rodgers v. Phillips, 40 "E. Y. 519; Allard v. Greasert, 61 N. Y. 1.) But it is a condition precedent ito the vesting of title in the vendee that the goods delivered shall correspond with the con- tract. (Pierson v. Crooks, 115 N. Y. 539.) Where goods of a specifio quality are ordered by a distant purchaser of a manufacturer or dealer, with directions to ship them by a carrier, delivery to the carrier will not conclude the party giving the order from rejecting the goods on arrival if found not to be of the quality ordered. (Pierson v. Crooks, 115 N, Y; 639.) But these cases all hold that a delivery, according to the contract, to a general carrier, not designated or selected by the buyer, does not con- stitute such a delivery and acceptance as to answer the Statute of Frauds. Where on the sale of personal property it is agreed tlhat payment therefor shall accompany or precede delivery, the title doeg not pass until the payment is made. (Empire State Type Founding Co. v. Grant, 114 N. Y. 40; Leven v. Smith, 1 Denio, 571; Russell v. Minor, 22 Wend. 659; Eammett v. Linneman, 48 N. Y, 399; Schryer v. Fenton, 15 App. Div. 158, 44 N. Y. Supp. 203.) But title to an article may pass upon a sale on credit if such was the intention of the parties. (Crosby v. Delor ware & Hudson Canal Co.. 141 N. Y, 589.) § 8. Warranties ; in general. A warranty in the sale of goods may be express or it may be implied. Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer, SALES AND WAKRANTIES. 73 purchases the goods relying thereon, but no affirmation of the value of the goods, nor any statement purporting to be a statement of the seller's opinion only shall be construed as a warranty. (Personal Property Law, § 93. See B. C. & G. Consolidated Laws.) Implied warranties may attach to a written contract as well as to one liot written. {Marx v. Locomobile Co., 82 Misc. 468, 144 IST. Y. Supp. 93*?.) A warranty on the sale of an automobile that it will be free from defects for a year necessarily carries with it a warranty that the machine at the time of the sale is of sufficiently good workmanship and material to run a year imder ordinary and proper use without showing defects ; and tho seller is liable for any defects that have appeared during the time limit except such as result from the buyer's improper use of the car. (Miller V. Zander, 85 Misc. 499, 147 N. Y. Supp. 479.) § 9. Implied warranty of title: In a contract to sell or a sale, unless a contrary intention appears, there is an implied warranty on the part of the seller that in case of a sale he has a right to sell the goods, and that in case of a contract to sell he will have a right to sell the goods at the time when property is to pass. And there is also an implied warranty that the buyer shall have and enjoy quiet possession of the goods as against any lawful claims existing at the time of the sale ; and that the goods shall be free at the time of the sale from any charge or encumbrance in favor of any third person, not declared or known to the buyer before or at the time when the contract or sale is made. But this implied warranty does not render liable a sheriff, auctioneer, mortgagee or other person professing to sell by virtue of authority in fact or law goods in which a third person has a legal or equitable interest. (Personal Property Law, § 94. See B. C. & G. Consolidated Laws.) § 10. Implied warranty in sale by description. Where there is a contract to sell or a sale of goods by description, there is an implied warranty that the goods shall correspond with the descrip- tion ; and, if the contract or sale be by sample, as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description. (Personal Property Law, § 95. See B. C. & G. Consolidated Laws.) On a sale of fruit trees by order, there is an implied warranty that the trees delivered shall be of the variety ordered. {Whipple v. Brown Bros. Co., 170 App. Div. 531, 156 N. Y. Supp. 63.) 74 CIVIL LAW AND PEACTICE. § 11. Implied warranties of quality. The general rule as to warranties is caveat emptor — let the buyer beware — and that there is no warranty of quality of the article sold. To the general rule, however, there are certain exceptions. Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose. (Personal Property Law, §96. See B. C. &G. Consolidated Laws.) This statute changes the prior rule on sales within its purview. But in order to bring a case within the statute, two things must appear. First: The seller must be informed expressly or by implication of the purpose for which the goods were pur- chased ; and Second : The buyer must have appeared to have relied on the seller's skill and judgment. (Wasserstrom v. Cohen, etc., Co., 165 App. Div. 171, 150 N. Y. Supp. 638.) The mere purchase of goods from a retail dealer does not raise a presumption that the buyer relied on the skill or judgment either of the seller or his salesman within the meaning of this statute. (Teller & Co. v. Kinlen, 165 App. Div, 351, 150 N. Y. Supp. 966.) Where an article is sold for consumption as food, there is an implied warranty that it is fit for consumption. {Race v. Krum, 222 N. Y. 410 ; Zenkel v. Oneida County Creameries Co., 104 Misc. 251, 171 N. Y. Supp. 676 ; Money v. Fisher, 92 Hun, 347 ; Race v. Krum, 163 App. Div. 924, 147 N. Y. Supp. 818.) The sale of pork made in the usual manner by a retail dealer for immediate consumption carries with it an implied warranty that it is sound and fit for use, and a purchaser who becomes infected with a parasite found in the pork may recover damages from thfe retail dealer, although the latter was free from negligence and although the pork was sold in the same form in which it was purchased and bore the United States Government stamp to the effect that it was sound and fit for con- sumption and free from defects. (Rinaldi v. Mohican Co., 171 App. Div. 814, 157 N. Y. Supp. 561, affd., 225 N. Y. 70.) Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of a merchantable quality. (Personal Property Law, § 96, subd. 2. See B. C. & G. Con- solidated Laws.) If the buyer has examined the goods, there is no implied warranty as regards defects which such examination ought to have revealed. (Per- sonal Property Law, § 96, subd. 3. See B. C. & G. Consolidated Laws.) SALES AND WARRANTIES. 75 In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose. (Personal Property Law, § 96, subd. 4. See B. C. & G. Consolidated Laws.) An implied warranty or condition as to the quality or fitness for a particular purpose may be annexed by the usage of trade. (Personal Property Law, § 96, subd. 5. See B. C. & G. Consolidated Laws.) An express warranty or condition does not negative a warranty or con- dition of quality implied by the provisions of the Personal Property Law. (Personal Property Law, § 96, subd. 6. See B. C. & G. Consolidated Laws.) An implied warranty may attach to a written contract as well as to one not written. (Marx v. Locomobile Co., 82 Misc. 468, 144 N. Y. Supp. 937.) § 12. Implied warranties in sale by sample. In the case of a contract to seU or a sale by sample, there is an implied warranty that the bulk shall correspond with the sample in quality ; and that the buyer shall have a reasonable opportunity of comparing the bulk with the sample, except so far as otherwise provided in the Personal Property Law ; and, if the seller is a dealer in goods of the kind sold, there is an implied warranty that the goods shall be free from any defect render- ing them unmerchantable which would not be apparent on reasonable examination of the sample. (Personal Property Law, § 97. See B. C. & G. Consolidated Laws.) A sale by sample contemplates that the goods are in being, that the sample is taken from the bulk; and that the bulk is equal in quality to the sample. This is sometimes called an implied warranty, but is more properly an express warranty. It amounts to an affirmation that the specimen is a fair sample of the bulk of the commodity. {Beime v. Dodd, 5 N. Y. 95, 103; Guemey v. Atlantic and Great Western By. Co., 58 N. Y. 358, 364; Henry & Co. v. Talcott, 175 N. Y. 385; Hamilton v. Pelousky, 48 Misc. 554.) But the mere circumstance that the seller exhibits a sample at the time of the sale will not of itself make it a sale by sample so as to subject the seller to liability on a warranty as to the nature and quality of the goods ; because it may be exhibited, not as a warranty that the bulk corresponds to it, but merely to enable the purchaser to form a judgment on its kind and quality. Whether a sale be a sale by sample or not is a question of fact for the jury to find from the evidence in each case. To authorize a finding that a sale was by sample the evidence must satisfactorily show that the parties contracted solely in reference to the sample exhibited ; that 16 CIVIL LAW AND PEACTICE. they mutually understcwd that they were dealing with the sample as an agreement or understanding that the bulk of the commodity corresponds with it ; or in other words, the evidence must be such as to authorize the jury, under all the circumstances of the case, to find that the sale was intended by the parties as a sale by sample. (Waring y. Mason, 18 Wend. 425, 434; Hargous v. Stone, 5 N. Y. 73; Beirne v. Dodd, 5 N. Y. 99; Pascal V. Goldstein, 51 Misc. 629; New York Hydraulic Press Brick Co. V. Ounn, 43 Misc. 330 ; Smith v. Coe, lYO N". Y. 162 ; Id., 612 ; Henry S Co. V. Talcott, 175 !N". Y. 385.) Where an action is brought to recover, for goods sold and delivered, and it is established by concession or proof that the sale is by sample, the burden is then upon the plaintiff to show that the goods he delivered were the goods which were the subject of sale, that is, goods equal to the sample. (Rosenstein v. Casein Mfg. Co., 60 Misc. 345.) A sale may be made partly by description and partly by sample, and in that event the goods must correspond to the description in the respect covered thereby and to the sample in other respects. (Bach v. Levy, 101 E". Y. 611, 614; Henry & Co. v. Talcott, 175 IST. Y. 385, 390.) An executory contract for the manufacture and delivery of certain articles of personal property of a specified quality and description is not strictly a sale by sample. (Qumey v, Atlantic & Great Western By. Co., 58 N. Y. 358.) But under such contract the party is bound to deliver articles equal to the sample in manufacture, material, description, quality, fitness and durability for the use for which they are designed. (Id.) The remedy of the purchaser is not the same in the case of an executory contract for the manufacture of goods and in the case of a sale by sample. If the sale is strictly one by sample the purchaser, after discovery that the goods are inferior to the sample, may still retain the goods and sue for the breach of warranty ; but in executory contracts for the manufacture of goods where there is no warranty, acceptance of the goods after an opportunity to examine renders the purchaser liable for the contract price. (Smith v, Coe, 55 App. Div. 585; 170 N. Y. 162; Gumey v. Atlantic & Great Western By. Co., 58 N. Y. 358; Studer v. Bleistein, 115 IST. Y. 316 ; Pierson v. Crooks, 115 N. Y. 539 ; Ideal Wrench Co. V. Garvin Machine Co., 92 App. Div. 187.) A contract of sale which points out a known and ascertainable standard by which to judge the quality of the goods sold, is, for all practicable pur- poses, a sale by sample, and renders the vendor liable for damages upon a breach of warranty, although there has been an acceptance after opportunity to inspect the goods. (Zabriskie v. Central Vermont R. R. Co., 131 N. Y 72.) SALES AND WARRANTIES. 77 § 13. Remedies of seller ; in general. "Where the buyer of personal property has declined to accept the same when the seller has sought to deliver it or when he has failed to pay for it, the seller ordinarily has his choice of several remedies. If the title to the property has not passed to the buyer, the seller has a lien on the goods or a right to retain them for the price while he is in possession of them, or a right of selling the goods in transit after he has parted with the posses- sion thereof ; or he has a right of resale as prescribed by the provisions of the Personal Property Law; or he has a right to rescind the sale as provided by the Personal Property Law. If the title to the goods has not passed to the buyer, the unpaid seller has, in addition to his other remedies, a right of withholding delivery similar to and coextensive with his rights of lien and profits in transit. (Personal Property Law, § 134. See B. C. & G. Consolidated Laws.) If the vendee has declined to receive the property, the vendor may store or retain the property for the vendee and sue him for the entire purchase price ; or he may sell the property and recover the difference between the contract price and the price obtained upon a re-sale ; or he may keep the property as his own and recover the difference between the market value at the time and place of delivery and the contract price. {More v. Potter, 155 N. Y. 481.) § 14. Remedies of seller; lien for purchase price. The unpaid seller of goods having them in his possession is entitled to retain possession thereof until payment or tender of the price in the fol- lowing cases : (a) Where the goods have been sold without any stipulation as to credit ; (b) Where the goods have been sold on credit, but the term of credit has expired; (c) Where the buyer becomes insolvent. The unpaid seller may exercise his right of lien notwithstanding that he is in possession of the goods as agent or bailee for the buyer. (Personal Prop- erty Law, § 135. See B. C. & G. Consolidated Laws.) Where an unpaid seller has made part delivery of the goods, he may exercise his right of lien on the remainder, unless such part delivery has been made under such circumstances as to show an intent to waive the lien or the right of retention. (Personal Property Law, § 136. See B. C. & G. Consolidated Laws.) An unpaid seller of goods loses his lien thereon when he delivers the goods to a carrier or other bailee for the purpose of transmission to the buyer without reserving the property in the goods or the right to the posses- sion thereof ; or when the buyer or his agent lawfully obtains possession of the goods; or by a waiver of his right of lien. But the unpaid seller of 78 OIVIL LAW AND PKACTICE. goods, having a lien thereon, does not lose his lien by reason only that he has obtained judgment or decree for the price of the goods. (Personal Property Law, § 137. See B. C. & G. Consolidated Laws.) With the transmutation of possession of property, a vendor's lien thereon is at an end. {Bummell v. Blanchard, 216 N. Y. 348.) The common law rule that a vendor's lien on personal property is extinguished where the buyer acquires both title and possession from the seller still exists and is incorporated into the present Personal Property Law. (Bummell v. BlancJmrd, 167 App. Div. 654, 153 N. Y. Supp, 159.) § 15. Remedies of seller ; stoppage in transit. Subject to the provisions of the Personal Property Law, when the buyer of goods is or becomes insolvent, the unpaid seller who has parted with the possession thereof has the right of stopping them in transitu, that is to say, he may resume possession of the goods at any time while they are in transit, and he will then become entitled to the same rights in regard to the goods as he would have had if he had never parted with the possession. (Persocal Property Law, § 138. See B. C. & G. Consolidated Laws. Northern Gram Co. v. Wiffler, 223 N. Y. 169.) § 16. Remedies of seller; right of resale. Where goods sold are of a perishable nature, or where the seller expressly reserves the right of resale in case the buyer should make default, or where the buyer has been in default in the payment of the price an unreasonable time, an unpaid seller having a right of lien or of having stopped the goods in transitu may resell the goods. He shall not thereafter be liable to the original buyer upon the contract to sell or the sale or for any profit made for such resale, but may recover from the buyer damages for any loss occasioned by the breach of the contract or the sale. Where a resale is made, the buyer acquires a good title as against the original buyer. It is not essential to the validity of a resale that notice of an intention to resell the goods be given by the seller to the original buyer. But where the right to resell is not based on the perishable nature of the goods or upon an express provision of the contract or the sale, the giving or failure to give such notice is relevant in any issue involving the question whether the buyer had been in default an unreasonable time before the resale was made. It is not essential to the validity of a resale that notice of the time and place of such place of such resale should be given by the seller to the original buyer. The buyer is bound to exercise reasonable care and judgment in making a resale, and subject to this requirement may make a resale either by public SALES AND WAREANTIES. 79 or private sale. (Personal Property Law, § 141. See B. C. & G. Con- fiolidated Laws.) § 17. Remedies of seller; right to rescind sale. An unpaid seller having a right of lien or having stopped the goods in transitu, may rescind the transfer of title and resume the property in the goods, where he expressly reserved the right to do so in case the buyer should make default, or where the buyer has been in default in the payment of the price an imreasonable time. The seller shall not thereafter be liable to the buyer upon the contract to sell or the sale, but may recover from the buyer damages for any loss occasioned by the breach of the contract or the sale. The transfer of title is not held to have been rescinded by an unpaid seller until he has manifested by notice to the buyer or by some other overt act an intention to rescind. It is not necessary that such overt act should be communicated to the buyer but the giving or failure to give notice to the buyer of the intention to rescind is relevant in any issue involving the question whether the buyer has been in default an unreasonable time before the right of recission was asserted. (Personal Property Law, § 142. See B. C. & G. Consolidated Laws.) Where a vendor has been induced by the fraudulent statements of the vendee to sell goods to him on credit, he may either disaffirm the sale and proceed in replevin to recover the goods, or may waive the tort, and, rescinding that part of the contract giving the credit, sue at once for the purchase price of the goods as though the sale were for cash. In such eases the seller is not bound to bring an action for deceit, or an action of trover cr replevin, but may waive the tort and bring assumpsit at once for the value of the goods. {Wygand v. Sichel, 3 Keyes, 120, 33 How. 174; lioth V. Palmer, 27 Barb. 652 ; Grossman v. Universal Euhher Co., 127 N". Y. 38 ; Wilson v. Foree, 6 Johns. 110 ; Heilbronn v. Herzog, 165 NT. Y. 98.) There is a well-recognized distinction in such cases between a dis- affirmance cf the sale with all its incidents, and a mere rescission of the credit upon which the sale was made. A vendor who has been defrauded on the contract of sale may rescind the contract and reclaim his goods while they remain in the possession of the vendee or one who is not a bona fide purchaser, but he must in such case restore to the vendee what he has received from him. (See Sweetman V, Prince, 26 N.,Y. 224.) § 18. Remedies of seller ; action for price. Where under a contract to sell or a sale, the property in the goods has passed to the buyer, and the buyer wrongfully neglects or refuses to pay 80 CIVIL LAW AND PRACTICE. for the goods according to the tenna of the contract or the sale, the seller may maintain an action against him for the price of the goods. Where, Under such a contract to sell or a sale, the price is payable on a day certain, irrespective of delivery or of transfer of title, and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an action for the price, although the property in the goods has not passed, and the goods have not been appropriated to the contract. But it is a defense to such an action that the seller at any time before judgment in such action has manifested an inability to perform the contract or the sale on his part or an intention not to perform it. (Personal Property Law, § 144. See B. C. & G. Consolidated Laws. ) § 19. Remedies of seller; damages for nonacceptance by buyer. Where the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may maintain an action against him for damages for non- acceptance. The measure of damages is the estimated loss directly and naturally resulting, the ordinary course of events, from the buyer's breach of contract. Where there is an available market for the goods in question, the measure of damages is, in the absence of special circumstances, show- ing proximate damage of a greater amount, the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or, if no time was fixed for acceptance, then at the time of the refusal to accept. If, while labor or expense of material amoimt are necessary on the part of the seller to enable him to fulfill his obligations under the contract to sell or the sale, the buyer repudiates the contract or the sale, or notifies the seller to proceed no further therewith, the buyer shall be liable to the seller for no greater damages than the seller would have suffered if he did nothing toward carry- ing out the contract or the sale after receiving notice of the buyer's repudia- tion or countermand. The profit the seller would have made if the contract or the sale had been fully performed shall be considered in estimating such damages. (Personal Property Law, § 146. See B. C. & G. Consolidated Laws.) Where the goods have not been delivered to the buyer, and the buyer has repudiated the contract to sell or sale, or has manifested his inability to perform his obligations thereunder, or has committed a material breach thereof, the seller may totally rescind the contract or the sale by giving notice of his election so to do to the buyer. (Personal Property Law, § 146. See B. C. & G. Consolidated Laws.) In such a case the seller is justified in treating the contract as broken at that time and he may bring an action SALES AND WARRANTIES. 81 immediately for the breach without tendering the delivery of the goods or awaiting the expiration of the period of performance fixed by the contract, The damages recoverable in such action is the difference between the con tract price and the market value at the time and place of delivery. (Wind- muller v. Pope, 107 N. Y. 674.) Eefusal to accept is a waiver of tender (Weil v. Unique Electric Device Co., 39 Misc. 527, 80 N. Y. Supp 484; Levy V. Glasshegg, 92 N. Y. Supp. 50.) A formal and specific statement by the buyer of the grounds of his refusal to accept the goods will be con- strued and deemed to be a waiver of all other objections to performance on the part of the seller. {Littlejohn v. Shaw, 159 N. Y. 188.) § 20. Remedies of buyer ; in general. The buyer of personal property has several different remedies in case the purchaser fails to complete his contract as agreed between the parties. He may in some cases maintain an action against the seller or as for con- version, where the seller fails to deliver the goods to the buyer. Or, in case the seller fails to deliver the goods, he may maintain an action for damages for a breach of the contract. And, in case the seller makes a breach of warranty, various remedies are left to the buyer for his protection. Eraud vitiates all contracts of sale at the election of the party defrauded. If a vendee has been induced to purchase by fraud and desires to be entirely relieved from the contract, he must rescind it, and restore, or offer to restore, the property purchased. If he retains the property, he may, when sued for the purchase price, recoup the damages arising from the fraud, or may have an action to recover such damages. But he cannot retain the property, if it is of any value, and defeat a recovery m toto upon the con- tract by reason of the fraud. This is the rule where the question of fraud does not relate to the title to the goods sold. In such a case the vendee may return or abandon the property to the true ovpner, assuming the responsi* bility, when sued by his vendor, of showing the fraud and proving title in the true owner. (Sweetman v. Prince, 26 N. Y. 224; Wolf v. Michael, 21 Misc. 86, 46 N. Y. Supp. 991.) § 21. Remedies of buyer; action for conversion. Where the property in the goods has passed to the buyer and the seller wrongfully neglects or refuses to deliver the goods, the buyer may maintain any action allowed by law to the owner of goods of similar kind when wrongfully converted or withheld. (Personal Property Law, § 147. See E. C. & G. Consolidated Laws.) 6 82 CIVIL LAW AND PEACTICE. § 22. Remedies of buyer; action for failure to deliver. Where the property in the goods has not passed to the buyer, and the seller wrongfully neglects or refuses to deliver the goods, the buyer may maintain an action against the seller for damages for nondelivery. The measure of damages in such an action is the loss directly and naturally resulting in the ordinary course of events from the seller's breach of con- tract. Where there is an available market for the goods in question, the measure of damages, in the absence of special circumstances showing proxi- mate damages of a greater amount, is the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver. (Personal Property Law, § 148. See B; C. & G. Consolidated Laws.) If the goods are to be delivered and paid for in installments, and the seller refuses to deliver any installment, this amounts to a repudiation of the contract by the seller and a breach thereof for which the buyer may recover his damages. But he cannot split up his demand and maintain successive suits as the time to deliver each installment arrives. There can be but one action for damages for a total breach of an entire contract to deliver goods, even where they are to be delivered in installments from time to time, and the buyer must either recover all his damages in his first suit, or wait until the time for the delivery of all the goods has arrived. (Pakas V. Hollingshead, 184 N. Y. 211.) § 23. Remedies of buyer ; specific performance. In certain cases where a seller has broken a contract to deliver specific or ascertained goods, courts of equity are permitted to make decrees direct- ing that the contract shall be performed specifically (see Personal Property Law, § 149) ; but this remedy has no application to courts of justices of the peace, for justices do not have equitable powers. § 24. Remedies of buyer ; breach of warranty. Where there is a breach of warranty by the seller, the buyer has several remedies, at his election. He may accept or keep the goods and set up against the seller the breach of the warranty by way of recoupment in diminution or extinction of the price ; or he may accept or keep the goods and maintain an action against the seller for damages for the breach of the warranty; or he may refuse to accept the goods, if the property therein has not passed, and may maintain an action against the seller for damages for the breach of warranty ; or he may rescind the contract to sell or the sale and refuse to receive the goods, or if the goods have already been SALES AN"D WAEEANTIES. 83 received, return them or offer to return them to the seller and recover the price or any part thereof which has been paid. But when the buyer has claimed and been granted a remedy in any one of these ways, no other remedy can thereafter be granted. (Personal Property Law, § 150, subd. 1. See B. C. & Gr. Consolidated Laws. Miller v. Zander, 85 Misc. 499, 147 N. Y. Supp. 479.) There is nothing in this section of the Personal Property Law which changed the rule previously existing to the effect that in a contract for the delivery of goods with warranties of quality, a purchaser may, as to goods already delivered and accepted by him, sue for damages for breach of the warranty, and where the seller refuses to deliver goods in the future according to the contract, recover also from the seller as in every case of a breach of an executory contract, the damages resulting from such a breach. {Interboro Brewing Co. v. Inde- pendent Consumers' Ice Co., 83 Misc. 119, 114 N. Y. Supp. 820.) Where the goods have been delivered to the buyer, he cannot rescind the sale if he knew of the breach of warranty when he accepted the goods or if he fails to notify the seller within a reasonable time of his election to rescind, or if he fails to return or to offer to return the goods to the seller in substantially as good condition as they were in at the time the property was transferred to the buyer. But if the deterioration or injury of the goods is due to the breach of warranty, such deterioration or injury shall not prevent the buyer from returning or offering to return the goods to the seller and rescinding the sale. (Personal Property Law, § 15C, subd. 3. Salomon v. Olkin, 91 Misc. 17, 154 N. Y. Supp. 204; Frieder v. Rosen, 147 N. Y. Supp. 442.) Where, in an action for goods sold and delivered, the defendant pleads breach of warranty as to quality both as a defense and as a counterclaim, and it appears that although only a brief time was necessary to make an examination of the goods, the defendant made no attempt to make such examination and made no offer to return the goods until more than two weeks after their receipt, the breach of warranty will be deemed to have been waived, and the only right which survives the defendant's acceptance of the goods is a claim for damages. (Silberstein v. Blum, 167 App. Div. 660, 153 N. Y. Supp. 34.) Before the enactment of the sections of the Personal Property Law pertaining to sales, the acceptance of goods sold, destroyed an implied warranty in the sale unless the defect was latent ; but under the Personal Property Law the acceptance does not extinguish either an express or implied warranty. (Nelson Co. v. Silver, 160 App. Div. 445, 145 N. Y. Supp. 124; Marx v. LocomoUle Co., 82 Misc. 468, 144 ISF. Y. Supp. 937; English Lumber Company v. Smith, 157 N. Y. Supp. 233.) 84 CIVIL LAW AND PEACTICE. The provisions of tMs section, which permit a buyer, at his election, to accept or keep the goods and set up against the seller the breach of warranty by way of recoupment in diminution or extinction of the price, applies to conditional as well as to absolute sales. (Peuser v. Marsh, 218 N. Y. 505.) Under this section, an action may be brought on the theory of the rescision of a contract for the recovery of the amount paid on account of the purchase price whether the sale is an absolute or a conditional one. (Shimel v. Williams Oven Mfg. Co., 93 Misc. 1T4, 156 IST. Y. Supp. 1060.) Where the buyer is entitled to rescind the sale and elects to do so, the buyer shall cease to be liable for the price upon returning or offering to return the goods. If the price or any part thereof has already been paid, the seller shall be liable to repay so much thereof as has been paid, con- currently with the return of the goods, or immediately after an offer to return the goods in exchange for repayment of the price. (Personal Prop- erty Law, § 150, subd. 4. See B. C. & G. Consolidated Laws.) Where the buyer is entitled to rescind the sale and elects to do so, if the seller refuses to accept an offer of the buyer to return the goods, the buyer shall thereafter be deemed to hold the goods as bailee for the seller, but subject to a lien to secure the repayment of any portion of the price which has been paid. (Personal Property Law, § 150, subd. 5. See B. C. & G. Consolidated Laws.) The measure of damages for breach of warranty is the loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty. In the case of a breach of a warranty of quality, such loss, in the absence of special circumstances showing proximate damage of a greater amount, is the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty. (Personal Property Law, § 150, subds. 6, 7. See B. C. & G. Consolidated Laws.) § 25. The Personal Property Law relative to sales. Prior to 1911, the law relating to sales was not generally a part of the statutory law of the State, but resting in the rules of the common law; but in that year an act was passed codifying the law of sales. It is thought that their importance is such to justify their insertion in full. SATES OF GOODS. Section 82. Contracts to sell and sales. 83. Capacity; liabilities for neoessaries. 84. Form of contract or sale. 85. Statute of Frauds. 86. Existing and future goods. SALES KND WARRANTIES. 85 Skction 87. Undivided shares. 88. Destruction of goods sold. 89. Destruction of goods contracted to he sold. 90. Definition and ascertainment of price. 91. Sale at a valuation. 92. Effect of conditions. 93. Definition of express warranty. 94. Implied warranties of title. 95. Implied warranty in sale by description. 96. Implied warranties of quality. 97. Implied warranties in sale by sample. 98. No property passes until goods are ascertained. 99. Property in specific goods passes when parties so intend. 100. Rules for ascertaining intention. 101. Reservation of right of possession or property when goods are shipped. 102. Sale by auction. 103. Risk of loss. 104. Sale by a person not the owner. 105. Sale by one having a voidajble title. 106. Sale by seller in possession of goods already sold. 107. Creditors' rights against sold goods. 108. Definition of negotiable documents of title. 109. Negotiation of negotiable document by delivery. 110. Negotiation of negotiable documents by indorsement. 111. Negotiable documents of title marked " not negotiable." 112. Transfer of non-negotiable documents. 113. Who may negotiate a document. 114. Rights of person to whom document has been negotiated. 115. Rights of person to whom document has been transferred. 116. Transfer of negotiable document without indorsement. 117. Warranties on sale of document 118. *Indorsement not a guarantee. 119 When negotiation not impaired by fraud, mistake or duress. 120. Attachment or levy upon goods for which a negotiable document has been issued. 121. Creditors' remedies to reach negotiable documents. 122. Seller must deliver and buyer accept goods. 123. Delivery and payment are concurrent conditions. 124. Place, time and manner of delivery. 125. Delivery of wrong quantity. 126. Delivery in installments. 127. Delivery to a carrier on behalf of the buyer. 128. Right to examine the goods. 129. What constitutes acceptance. 130. Acceptance does not bar action for damages. 131. Buyer is not bound to return goods wrongfully delivered. 132. Buyer's liability for failing to accept delivery. 133. Definition of unpaid seller. 134. Remedies for an unpaid seller. 135. When right of lien may be exercised. 136. Lien after part delivery. • So in original. 86 CIVIL LAW AND PEACTICE. Section 137. When lien is lost. 138. Seller may stop goods on buyer's insolvency. 139. When goods are in transit. 140. Ways of exercising the right to stop. 141. When and how resale may be made. 142. When and how the seller may rescind the sale. 143. Effect of sale of goods subject to lien or stoppage in transitu. 144. Action for the price. 145. Action for damages for nonacceptance of goods. 146. When seller may rescind contract or sale. 147. Action for converting or detaining goods. 148. Action for failing to deliver goods. 149. Specific performance. 150. Remedies for breach of warranty. 151. Interest and special damages. 152. Variation of implied obligations. 153. Eights may be enforced by action. 154. Rule for cases not provided for by this article. 155. Provisions not applicable to mortgages. 150. Definitions. 157. Article does not apply to existing sales or contracts to sell. 158. No repeal of uniform warehouse receipt laws or uniform, bills of lading laws. § 82. Contracts to sell and sales. 1. A contract to sell goods is a contract whereby the seller agrees to transfer th« property in goods to the buyer for a consideration called the price. 2. A sale of goods is an agreement whereby the seller transfers the property in goods to the buyer for a consideration called the price. 3. A contract to sell or a sale may be absolute or conditional. 4. There may be a contract to sell or a sale between one part owner and another. § 83. Capacity; liability for necessaries. Capacity to buy and sell is regulated by the general law concerning capacity to con- tract, and to transfer and acquire property. Where necessaries are sold and delivered to an infant, or to a person who by reason of mental incapacity or drunkenness is incompetent to contract, he must pay a reasonable price therefor. Necessaries in this section mean goods suitable to the condition in life of such infant or other person, and to his actual requirements at the time of delivery. § 84. Form of contract or sale. Subject to the provisions of this article and of any statute in that behalf, a contract to se^l or a sale may be made in writing (either with or without seal), or by word of mouth, or partly in writing and partly by word of mouth, or may be inferred from the conduct of the parties. § 85. Statute of frands. 1. A contract to sell or a sale of any goods or choses in action of the value of fifty dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually reoeive the same, or give something in earnest to bind the contract, or in part payment, or SALES AND WARRAl^TIES. 87 unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or hia agent in that behalf. 2. The provisions of this section apply to every such contract or sale, notwithstanding that the goods may be intended to be delivered at some future time or may not at the time of such contract or sale be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery; but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in the ordinary course of the seller's business, the provisions of this section shall not apply. 3. There is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, expresses by words or conduct his assent to becoming the owner of those specific goods. § 86. Existing and fntnre goods. 1. The goods which form the subject of a contract to sell may be either existing goods, owned or possessed by the seller, or goods to be manufactured or acquired by the seller after tlie making of the contract to sell, in this article called " future goods." 2. There may be a contract to sell goods, the acquisition of which by the seller depends upon a contingency which may or may not happen. 3. Where the parties purport to effect a present sale of future goods, the agreement operates as a contract to sell the goods. § 87. Undivided sliares. 1. There may be a contract to sell or a sale of an undivided share of goods. If the parties intend to effect a present sale, the buyer, by force of the agreement, becomes an owner in common with the owner or owners of the remaining shares. 2. In the case of fungible goods, there may be a sale of an undivided share of a specific mass, though the seller purports to sell and the buyer to buy a definite number, weight or measure of the goods in the mass, and though the number, weight or measure of the goods in the mass is undetermined. By such a sale the buyer becomes owner in common of such a share of the mass as the number, weight or measure bought bears to the number, weight or measure of the mass. If the mass contains less than the number, weight or measure bought, the buyer becomes the ovpner of the whole mass and the seller is bound to make good the deficiency from similar goods unless a contrary intent appears. § 88. Destmction of goods sold. 1. Where the parties purport to sell specific goods, and the goods without the knowl- edge of the seller have wholly perished at the time when the agreement is made, the agreement is void. 2. Where the parties purport to sell specific goods, and the goods without the knowl- edge of the seller have perished in part or have wholly or in a material part so deteriorated in quality as to be substantially changed in character, the buyer may at his option treat the sale — (a) As avoided, or (b) As transferring the property in all of the existing goods or in so much thereof as have not deteriorated, and as binding the buyer to pay the full agreed price if the sale was indivisible, or to pay the agreed price for the goods in which the property passes if the sale was divisible. § 89. Destraction of goods contracted to be sold. 1. Where there is a contract to sell specific goods, and subsequently, but before the risk passes to the buyer, without any fault on the part of the seller or the buyer, the goods wholly perish, the contract is thereby avoided. 88 CIVIL LAW AND PEACTICE. 2. Where there is a contract to sell specific goods, and subsequently, but before the risk passes to the buyer, without any fault of the seller or the buyer, part of the goods perish or the whole or a material part of the goods so deteriorate in quality as to be substantially changed in character, the buyer may at his option treat the contract — (a) As avoided, or (b) As binding the seller to transfer the property in all of the existing goods or in so much thereof as have not deteriorated, and as binding the buyer to pay the full agreed price if the contract was indivisible, or to pay the agreed price for so much of the goods as the seller, by the buyer's option, is bound to transfer if the contract was divisible. § 90. Definition and ascertainment of price. 1. The price may be fixed by the contract, or may be left to be fixed in such manner as may be agreed, or it may be determined by the course of dealing between the parties. 2. The price may be made payable in any personal property. 3. Where transferring or promising to transfer any interest in real estate constitutes the whole or part of the consideration for transferring or lor promising to .transfer the property in goods, this article shall not apply. 4. Where the price is not determined in accordance with the foregoing provisions the buyer must pay a reasonable price. What is a reasonable price is a question of fact dependent on the circumstances of each particular case. § 91. Sale at a -ralnation. 1. Where there is a contract to sell or a sale of goods at a price or on terms to bo fixed by a third person, and such third person without fault of the seller or the buyer. Cannot or does not fix the price or terms, the contract or the sale is thereby avoided; but if the goods or any part thereof have been delivered to and appropriated by the buyer he must pay a reasonable price therefor. 2. Where such third person is prevented from fixing the price or terms by fault of the seller or the buyer, the party not in fault may have such remedies against the party in fault as are allowed by the appropriate parts of this article. § 92. Effect of condition. 1. Where the obligation of either party to a contract to sell or a sale is subject to any condition which is not performed, such party may refuse to proceed with the contract or sale or he may waive performance of the condition. If the other party has promised that the condition should happen or be performed, such first mentioned party may also treat the nonperformance of the condition as a breach of warranty. ' 2. Where the property in the goods has not passed, the buyer may treat the fulfill- ment by the seller of his obligation to furnish goods as described and as warranted expressly or by implication in the contract to seU as a condition of the obligation of the buyer to perform his promise to accept and pay for the goods. § 93. Definition of express warranty. Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. No affirmation of the value of the goods, nor any statement purporting to be a state- ment of the seller's opinion only shall be construed as a warranty. § 94. Implied -vrarranties of title. In a contract to sell or a sale, unless contrary intention appears, there ia 1. An implied warranty on the pa,rt of the seller that in case of a sale he has a right SALES AND WAEKANTIES. 89 to sell the goods, and that in case of a contract to sell he will have a right to sell the goods at the time when the property is to pass; 2. An implied warranty that the buyer shall have and enjoy quiet possession of the goods as against any lawful claims existing at the time of the sale; 3. An implied warranty that the goods shall be free at the time of the sale from any charge or encumbrance in favor of any third person, not declared or known to the buyer before or at tjie time when the contract or sale is made. 4. This section shall not, however, be held to render liable a sheriff, auctioneer, mortgagee or other person professing to sell by virtue of authority in fact or law goods in which a third person has a legal or equitable interest. § 95. Implied Trarranty in sale Try description. Where there is a contract to sell or a sale of goods by description, there is an implied warranty that the goods shall correspond with the description and if the con- tract or sale be by sample, as well as by description, it is not sufSeient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description. § 96. Implied nrarranties of quality. Subject to the provisions of this article and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows: 1. Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose. 2. Where the goods are bought by description from a seller who deals in goods of , that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality. 3. If the buyer has examined the goods, there is no implied warranty as regards defects which such examination ought to have revealed. 4. In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose. 5. An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade. 6. An express warranty or condition does not negative a warranty or condition implied imder this act unless inconsistent therewith. § 97. Implied warranties in sale by sample. In the case of a contract to sell or a sale by sample: (a) There is an implied warranty that the bulk shall correspond with the sample in quality. (b) There is an implied warraniy that the buyer shall have a reasonable opportunity of comparing the bulk with the sample, except so far as otherwise provided in sub- division three of section one hundred and twenty-eight. (c) If the seller is a dealer in goods of that kind, there is an implied warranty that the goods shall be free from any defect rendering them unmerchantable which would not be apparent on reasonable examination of the sample. $ 98. No property passes nntil goods are ascertained. Where there is a contract to sell unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained, but property in 90 CIVIL LAW AND PEACTICE. an undivided share of ascertained goods may b© transferred as provided in section eighty-seven. § 99. Property in specific goods passes urben parties so intend. 1. Where there is a contract to sell specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. 2. For the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties, usages of trade and the circumstances of the case. § 100. Rales for ascertaining intention. Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pasa to the buyer. Kule 1. Where there is an imconditional contract to sell specific goods, in a deliver- able state, the property in the goods passes to the buyer when the contract is made and it is immaterial whether the time of payment, or the time of delivery, or both, bo postponed. Rule 2. Where there is a contract to sell specific goods and the seller is bound to do something to the goods, for the purpose of putting them into a deliverable state, the property does not pass until such thing be done. Eule 3. 1. When goods are delivered to the buyer " on sale or return," or on other terms indicating an intention to make a present sale, but to give the buyer an option to return the goods instead of paying the price, the property passes to the buyer on delivery, but he may revest the property in the seller by returning or tendering tlie goods within the time fixed in the contract, or, if no time has been fixed, within a reasonable time. 2. When goods are delivered to the buyer on approval or on trial or on satisfaction, or other similar terms, the property therein passes to the buyer — (a) When he signifies his approval or acceptance to the seller or does any other act adopting the transaction; (b) If he does not signify his approval or acceptance to the seller, but retains the goods without giving notice of rejection, then if a time has been fixed for the return of the goods, on the expiration of such time, and, if no time has been fixed, on the expiration of a reasonable time. What is a reasonable time is a question of fact. liule 4. 1. Where there is a contract to sell unascertained or future goods by description, and goods of that description and in a deliverable state are uneonditional'.y appropriated to the contract, either by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be expressed or implied, and may be given either before or after the appropriation is made. 2. Where, in pursuance of a contraxit to sell, the seller delivers the goods to the buyer, or to a carrier or other bailee (whether named by the buyer or not) for the purpose of transmission to or holding for the buyer, he is presumed to have uncon- ditionally appropriated the goods to the contract, except in tlie cases provided for in the next rule and in section one hundred and one. This presumption is applicable, although by the terms of the contract the buyer is to pay the price before receiving delivery of the goods, and the goods are marked with the words " collect on delivery " or their equivalents. Kule 5. If the contract to sell requires the seller to deliver the goods to the buyer, or at a particular p'ace, or to pay the freight or cost of transportation to the buyer, SALES AND WAEEANTIES. 91 or to a particular place, the property does not pass until tbe goods have been delivered to the buyer or reached the place agreed upon. § 101. Reserration of right of possession or property -when, goods are shipped. 1. Where there is a contract to sell specific goods, or where goods are subsequently appropriated to the contract, the seller may, by the terms of the contract or appro- priation, reserve the right of possession or property in the goods until certain con- ditions have been fulfilled. The right of possession or property may be thus reserved notwithstanding the delivery of the goods to the buyer or to a carrier or other bailee for the purpose of transmission to the buyer. 2. Where goods are shipped, and by the bill of lading the goods are deliverable to the teller or his agent, or to the order of the seller or of his agent, the seller thereby reserves the property in the goods. But if, except for the form of the bill of lading, the property would have passed to the buyer on shipment of the goods, the seller's property in the goods shall be deemed to be only for the purpose of securing perform- ance by the buyer of his obligations under the contract. 3. Where goods are shipped, and by the bill of lading the goods are deliverable to the order of the buyer or of his agent, but possession of the bill of lading is retained by the seller or his agent, the seller thereby reserves a right to the possession of the goods as against the buyer. 4. Where the seller of goods draws on the buyer for the price and transmits the bill of exchange and bill of lading together to the buyer to secure acceptance or payment of the bill of exchange, the buyer is bound to return the bill of lading if he does not honor the bill of exchange, and if he wrongfully retains the bill of lading he acquires BO added right thereby. If, however, the bill of lading provides that the goods are deliverable to the buyer or to the order of the buyer, or is indorsed in blank, or to the buyer by the consignee named therein, one who purchases in good faith, for va'ue, the bill of lading, or goods from the buyer will obtain the property in the goods, although the bill of exchange has not been honored, provided that such purchaser has received delivery of the bill of lading indorsed by the consignee named therein, or of the goods, without notice of the facts making the transfer wrongful. § 102. Sale by auction. In the case of sale by auction — 1. Where goods are put up for sale by auction in lots each lot is the subject of a eeparate contract of sale. 2. A sale by auction is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary manner. Until such announcement is made, any bidder may retract his bid; and the auctioneer may withdraw the goods from sale unless the auction has been announced to be without reserve. 3. A right to bid may be reserved expressly by or on behalf of the seller. 4. Where notice has not been given that a sale by auction is subject to a right to bid on behalf of the seller, it shall not be lawful for the seller to bid himself or to employ or induce any person to bid at such sale on his behalf, or for the auctioneer to employ or induce any person to bid at such sale on behalf of the seller or knowingly to take any bid from the seller or any person employed by him. Any sale contravening this rule may be treated as fraudulent by the buyer. § 103. Risk of loss. Unless otherwise agreed, the goods remain at the seller's risk until the property therein is transferred to the buyer, but when the property therein is transferred to the buyer the goods are at the buyer's risk whether delivery has been made or not, except that — 92 CIVIL LAW AND PEACTICE. (a) Where delivery of goods has been made to the buyer, or to a bailee for the buyer, in pursuance of the contract and the property in the goods has been retained by tha seller merely to secure performance by the buyer of his obligations under the contract, the goods are at the buyer's risk from the time of such delivery. (b) Where delivery has been delayed through the fault of either buyer or seller the goods are at the risk of the party in fault as regards any loss which might not hav» occurred but for sueh fault. § 104. Sale by person mot the o-nrner. 1. Subject to the provisions of this article, where goods are sold by a person who 19 not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller's authority to sell. 2. Nothing in this act, however, shall affect — (a) The provisions of any factors' acts, recording acts, or any enactment enabling the apparent owner of goods to dispose of them as if he were the true owner thereof. (b) The validity of any contract to sell or sale under any special common law or statutory power of sale or under the order of a court of competent jurisdiction. § 105. Sale by one having a voidable title. Where the seller of goods has a voidable title thereto, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, provided he buys them in good faith, for value, and without notice of the seller's defect of title. § 106. Sale by seller in possession of goods already sold. Where a person having sold goods continues in possession of the goods, or of nego- tiable documents of title to the goods, the delivery or transfer by that person, or by an agent acting for him, of the goods or documents of title under any sale, pledge, or other disposition thereof, to any person receiving and paying value for the same in good faith and without notice of the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly authorized by the owner of the goods to make the same. § 107. Creditors' rights against sold goods in seller's possession. Where a person having sold goods continues in possession of the goods, or of nego- tiable documents of title to the goods and such retention of possession is fraudulent in fact or is deemed fraudulent under any rule of law, a creditor or creditors of the seller may treat the sale as void. g 108. Definition of negotiable doonments of title. A document of title in which it is stated that the goods referred to therein will be delivered to the bearer, or to the order of any person named in such document is a negotiable document of title. § 109. Negotiation of negotiable doonments by delivery. A negotiable document of title may be negotiated by delivery — (a) Where by the terms of the document the carrier, warehouseman or other bailee issuing the same undertakes to deliver the goods to the bearer, or (b) Where by the terms of the document the carrier, warehouseman or other bailee issuing the same undertakes to deliver the goods to the order of a specified person, and 6uch person or a subsequent indorsee of the document has indorsed it in blank or to bearer. SALES AND ' WAREANTIES. 93 Where bj the terms of a negotiaible document of title the goods are deliverable to bearer or where a negotiable document of title has been indorsed in blank or to bearer, any holder may indorse the same to himself or to any other specified person, and in such case the document shall thereafter be negotiated only by the indorsement of such indorsee. § 110, Negotiation of negotiable doonments by indorsement. A negotiable document of title may be negotiated by the indorsement of the person to whose order the goods are by the terms of the document deliverable. Such indorse- ment may be in blank, to bearer or to a specified person. If indorsed to a specified person, it may be again negotiated by the indorsement of such person in blank, to bearer or to another specified person. Sulbsequent negotiation may be made in like manner. § 1J.1. Negotiable docnments of title marked "not negotiable." If a document of title which contains an undertaking by a carrier, warehouseman or other bailee to deliver the goods to the bearer, to a specified person or order, or to the order of a specified person, or which contains words of like import, has placed upon it the words "not negotiable," "non-negotiable" or the like, such a document may nevertheless be negotiated by the holder and is a negotiable document of title within the meaning of this act. But nothing in this act contained shall be construed as limiting or defining the effect upon the obligations of the carrier, warehouseman, or other bailee issuing a document of title of placing thereon the words " not negotiable," "non-negotiable," or the like. § 112. Transfer of non-negotiable documents. A document of title which is not in such form that it can be negotiated by delivery may be transferred by the holder by delivery to a purchaser or donee. A non-nego- tiable document cannot be negotiated and the indorsement of such a document gives the transferee no additional right. § 113. VTho may negotiate a document. A negotiable document of title may be negotiated — (a) By the owner thereof, or (b) By any person to whom the possession or custody of the document has been entrusted by the owner, if, by the terms of the document the bailee issuing the docu- ment undertakes to deliver, the goods to the order of the person to whom the possession or custody of the document has been entrusted, or if at the time of such entrusting the document is in such form that it may he negotiated by delivery. § 114. Bigbts of person to -whom document bas been negotiated. A person to whom a negotiable document of title has been duly negotiated acquires thereby, (a) Such title to the goods as the person negotiating the document to him had or had ability to convey to a purchaser in good faith for value and also such title to the goods as the person to whose order the goods were to be delivered by the terms of the document had or had ability to convey to a purchaser in good faith for value, and (b) The direct obligation of the bailee issuing the document to hold possession of the goods for him according to the terms of the document as fully as if such bailee had contracted directly with him. § 115. Rigbts of person to wbom docnment bas been transferred. A person to whom a document of title has been transferred, but not n^otiated, acquires thereby, as against the transferror, the title to the goods, subject to the terms 94 CIVIL LAW AND PRACTICE. of any agreement with the transferror. If the document is non-negotiable, such percon also acquires the right to notify the bailee who issued the document of the transfer thereof, and thereby to acquire the direct obligation of such bailee to hold possession of the goods for him according to the terms of the document. Prior to the notification of such bailee by the transferror or transferee of a non-negotiable document of title, the title of the transferee to the goods and the right to acquire the obligation of such bailee may be defeated by the levy of an attachment or execution upon the goods by a creditor of the transferror, or by a notification to such bailee by the transferror or a subsequent purchaser from the transferror of a subsequent sale of the goods by the transferror. § 116. Transfer of negotiable document witbont indorsement. Where a negotiable document of title is transferred for value by delivery, and the indorsement of the transferror is essential for negotiation, the transferee acquires a ' right against the transferror to compel him to indorse the document unless a contrary intention appears. The negotiation shall take effect as of the time when the indorse- ment is actually made. § 117. Warranties on sale of document. A person who for value negotiates or transfers a document of title by indorsement or delivery, including one who assigns for va'ue a claim secured by a document of title unless a contrary intention appears, warrants: (a) That the document is genuine; (b) That he had a legal right to negotiate or transfer it; (e) That he has knowledge of no fact which would impair the validity or worth of the document, and (d) That he has a right to transfer the title to the goods and that the goods are merchantable or fit for a particular purpose, whenever such warranties would have been implied if the contract of the parties had been to transfer without a document of title the goods represented thereby. § lis. Indorser not a guarantor. The indorsement of a document of title shall not make the indorser liable for any failure on the part of the bailee who issued the document or previous indorsers thereof to fulfill their respective obligations. § 119. 'Wben negotiation not impaired by fraud, mistake or duress. The validity of the negotiation of a negotiable document of title is not impaired by the fact that the negotiation was a breach of duty on the part of the person making the negotiation, or by the fact that the owner of the document was induced by fraud, mistake or duress to entrust the possession or custody thereof to such person, if the person to whom the document was negotiated or a person to whom the document was subsequently negotiated paid value therefor, without notice of the breach of duty, or fraud, mistake or duress. g ISO. Attachment or levy upon goods for which a negotiable document has been issued. If goods are delivered to a bailee by the owner or by a person whose act in conveying the title to them to a purchaser in good faith for value would bind the owner and a negotiable document of title is issued for them they cannot thereafter, wliile in tlie posses^sion of such bailee, be attached by garnishment or otherwise or be levied upon under an execution unless the document be first surrendered to the bailee or its ne"o- SALES AND WAEEANTIES. 95 tiation enjoined. The bailee shall in no case be compelled to deliver up the actual possession of the goods until the document is surrendered to him or iin>pounded by the court. § 121. Creditors' remedies to reacli negotiable cIociimc:its. A creditor whose debtor is the owner of a ne~otiab'.e document of title sha'l be entitled to such aid from the courts of appropriate j-jrisdiction by injunction and otherwise in attaching such document or in satisfying t^ie claim by means thereof as is allowed at law or in equity in regard to property which cannot be readily attached or levied upon by ordinary legal process. § 122. Seller must deliver and buyer accept goods. It is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract to sell or sale. § 123. Delivery and payment are concnrrent conditions. Unless otherwise agreed, delivery of the goods and payment of the price are con- current conditions; that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price and the buyer must be ready and willing to pay the price in exchange for possession of the goods. § 124. Flace, time and manner of delivery. 1. Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending in each case on the contract, express or implied, between the parties. Apart from any such contract, express or implied, or usags of trade to the contrary, the place of delivery is the seller's place of business if he have one, and if not liis residence; but in case of a contract to sell or a sale of specific goods, which to the knowledge of the parties when the contract or the sale was made were in some other place, then that place is the place of delivery. 2. Where by a contract to sell or a sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time. 3. Where the goods at the time of ^le are in the possession of a third person, the seller has not fulfilled his obligation to deliver to the buyer unless and until such third person acknowledges to the buyer that lie holds the goods on the buyer's behalf; but as against all others than the seller the buyer shall be regarded as having received delivery from the time when such third person first has notice of the sale. Nothing in this section, however, shall affect the operation of the issue or transfer of any document of title to goods. 4. Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour. What is a reasonable hour is a question of fact. 5. Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state must be borne by the seller. § 125. Delivery of ivrong quantity. 1. Where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may reject them, but if the buyer accepts or retains the goods so delivered, knowing that the seller is not going to perform the contract in full, he must pay for them at contract rate. If, however, the buyer has used or disposed of the goods delivered before he knows that the seller is not going to perform his contract in full, the buyer shall not be liable for more than the fair value to him of the goods so received. 2. Where the seller delivers to the buyer a quantity of goods larger than he con- , 96 CIVIL LAW AND PRACTICE. tracted to sell, the buyer may accept the goods included in the contract and reject the rest, or he may reject the whole. If the buyer accepts the whole of the goods so delivered he must pay for them at the contract rate. 3. Where the seller delivers to the buyer the goods he contracted to sell mixed with goods of a different description not included in the contract, the buyer may accept the goods which are in accordance with the contract and reject the rest, or he may reject the whole. 4. The provisions of this section are subject to any usage of trade, special agreement, or course of dealing between the parties. § 126. Delivery in installments. 1. Unless otherwise agreed, the buyer of goods is not bound to accept delivery thereof by installments. 2. Where there is a contract to sell goods to be delivered by stated installments, which are to be separately paid for, and the seller makes defective deliveries in respect of one or more installments, or the buyer neglects or refuses to take delivery of or pay for one or more installments, it depends in each case on the terms of the contract and the circumstances of the case whether the breach of contract is so material as to justify the injured party in refusing to proceed further and suing for damages for breach of the entire contract, or whether the breach is severable, giving rise to a claim for compensation, but not to a right to treat the whole contra^it as broken. § 127. Delivery to a carrier on behalf of the bnyer. 1. Where, in pursuance of a contract to sell or a sale, the seller is authorized or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer is deemed to be a delivery of the goods to the buyer, except in the cases provided for in section one hundred, rule five, or unless a contrary intend appears. 2. Unless otherwise authorized by the buyer, the seller must make such contract with the carrier on behalf of the buyer as may be reasonable, having regard to the nature of the goods and the other circiunstanoes of the case. If the seller omit so to do, and the goods are lost or damaged in course of transit, the buyer may decline to treat the delivery to the' carrier as a delivery to himself, or may hold the seller responsible in damages. 3. Unless otherwise agreed, where goods are sent by the seller to the buyer under circumstances in which the seller knows or ought to know that it is usual to insure, the seller must give such notice to the buyer as may enable him to insure them during their transit, and, if the seller fails to do bo, the goods shall be deemed to be at his risk during such transit. § 128. Right to examine the goods. 1. Where goods are delivered to the buyer, which he has not previously examined, be is not deemed to have accepted them unless and until he has had a reasonable opportunity to examine them for the purpose of ascertaining whether they are In conformity with the contract. 2. Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract. 3. Where goods are delivered to a carrier by the seller, in accordance with an order from or agreement with the buyer, upon the terms that the goods shall not be delivered by the carrier to the buyer until he has paid the price, whether such terms are indi- cated by marking the goods with the words "collect on delivery," or otherwise, tha SALES AND WAERANTIES 9T buyer ia not entitled to examine the goods before payment of the price in the absence of agreement permittii^ such examination. § 129. What constitutes acoeptanoe. The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them. § 130. Acceptance does not bar action for damages. In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damagesi or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But, if, after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knowa, or ought to know, of such breach, the seller shall not be liable therefor. § 131. Buyer is not bonnd to return goods wrongly delivered. Unless otherwise agreed, where goods are delivered to the buyer, and he refuses to accept them, having the right so to do, he is not bound to return them to the seller, but it is su£B<:ient if he notifies the seller that he refuses to accept them. § 132. Buyer's liability for failing to accept delivery. When the seller is ready and willing to deliver the goods, and requests the buyer to take delivery, and the buyer does not within a reasonable time after such request take delivery of the goods, he is liable to the seller for any loss occasioned by his neglect or refusal to take delivery, and also for a reasonable charge for the care and custody of the goods. If the neglect or refusal of the buyer to take delivery amounts to a repudi- ation or breach of the entire contract, the seller shall have the rights against the goods and on the contract hereinafter provided in favor of the seller when the buyer is in default. § 133. Definition of unpaid seller. 1. The seller of goods is deemed to be an unpaid seller within the meaning of this article, (a) When the whole of the price has not been paid or tendered. (b) When a bill of exchange or other negotiable instrument has been received as conditional payment, and the condition on which it was received has been broken by reason of the dishonor of the instrument, the insolvency of the buyer, or otherwise. 2. In this part of this act the term " seller " includes an agent of the seller to whom the bill of lading has been indorsed, or a consignor or agent who has himself paid, or is directly responsible for, the price, or any other person who is in the position of a seller. g 134. Remedies of an unpaid seller. 1. Subject to the provisions of this article, notwithstanding that the property in the goods may have passed to the buyer, the unpaid seller of goods, as such has (a) A lien on the goods or right to retain them for the price while he is in possession of them; (b) In case of the insolvency of the buyer, a right of stopping the goods in transitu after he has parted with the possession of them ; (c) A right of resale as limited by this article; 7 S3 C|\[IIL %m'' m^ BEACTICE. , (d)- A right to Msejnd- the Ba,le a? JiffiiAedJy this article.. . -,. - •i:\;i!;i 2. Where the property in goods has not passed to t'le buyer, the unpaid seller haiai in addition to his other remedies, a right of withholding delivery similar to and coextensive virith his rights of lien and stoppage in transitu where the property hajj passed to the buyer. , , . / § 135. When rigtt of lien may lie ,exeToised. jji 1. Subject to the provisions of this article, it'.ie unpaid se'.ler of goods who is in possessioh of them is entitled to retain possession of them until payment or tender of the price in the following cases, namely: (a) Where the goods have been sold Vfithout any stipulation as to credit ; i; (b) Where the goods have been .pold.on credit, but the term of credit has expired; (c) Where the buyer becomes insolvent. ... , 2. The seller may exercise his right of lien notwithstanding that he is in possession of the goods as agent or bailee for the buyer. c , ' ■ '■}■ '. . '_ ... .■ .: I ■;( § 136. liien after part delivery. .. . ^' ... ; , \^ , j Where an unpaid seller has made part delivery of the goods, he may exercise his right of lien on the remainder, unless such part delivery has baen made uiidef;sticU circumstances as to show an intent to waive the lien or right of retention.. L J § 137. When lien is lost. ,■ ./ 1. The unpaid seller of goods loses his lien thereon (a) When he delivers the goods to a carrier or other bailee for the purposSl of transmission to the buyer without i^serjVing tlbe property in tlie goods or the right, to the possession thereof; , ■ 'fij ,(b) When the buyer or his agent lawfully obtains possession of the goods; > "I' , (c) By waiver thereof. - ov The unpaid seller of goods, having a lien thereson, does not lose his lien by rcasdit only that he has obtained judgmen^t or decree fpir the price of the goods. .. t ,ii Js § 138. Seller may stop goods on bnyer's insolvency. Subject to the provisions of this article, when the buyer of goods is or becomes insolvent, the unpaid seller who has parted with the possession of the goods has Ihg jright of stopping them in transitu,' that js; to.] say, he may resume possession of the goods at any time while they are in transit, and he will then become entitled , to the same rights in regard to the, goods ap he tvovtldhave had if he had never par,ted(W;ith the possession. { i § 139. When goods are in transit. 1. Gopds are in transit withi;n, the meaning of section one hundred and thirty-eight; J (a) From the time when they are delivered; to.) a carrier, by land or water, or othetf bailee for the purpose; of transmjssiaHito the buyer, until the buyer, or his agent iii that behalf, takes delivery of them from such carrier or other bailee; . ,• (b) If the goods are rejected by the buyer, and the carrier or other bailee continues in possession of them, even if the seller has refused to receive them back. " >:■ 2. Goods are no longer in transit, within the weaning of section one hundred and thirty -eight, - '. (a) If the buyer, or his agent in that behalf, obtains delivery of the goods Ijefloro their arrival at the appointed destination; !> . (b); Jfj after the, arrival «>•( t.Jiej gclQda .at the apppjn.ted destijiation,i the carribi-j or other bailee acknowledges to the buyej'ior .his agent that he liolds the goods 6n his behalf and continues in possession of them as bailee for the buyer or his agent;' and SALES AND WAEKA]srTIES. C99 it is immaterial that a furthet destination lor -.ttie r^ods Inay have been indicated by the buyer; ' -,; the person in actual possession of the goods or to his principal. In the latter case the- notice, to be effectual, must be given at such time and under such circumstances that the principal, by the exercise of reasonable diligence, may prevent a delivery to the buyer. 2. When notice of stoppage in transitu is given by the seller to the carrier, or other bailee in possession of the goods, he must redeliver the goods to, or according to the 4irections of, the seller. . The expenses of such delivery must be borne by the seller. If, however, a negotiable document of title representing the goods has been issued by the carrier or other bailee, he shall not be obliged to deliver or justified in delivering the goods to the seller unless such document is first surrendered for cancellation. § 141. When and hotr resale may be made. 1. Where the goods are of a perishable nature, or where the seller expressly reserves the right of resale in case the buyer should make defau't, or where the buyer has been in default in the payment of the price an unreasonable time, an unpaid seller having' a right, of lien or having stopped the goods in transitu may resell the goods. He shall not thereafter be liable to the original buyer upon the contract to sell or the sale or for any profit made by such resale, but may recover from the buyer damages for any loss occasioned by the breach of the contract or the sale. 2. Where a resale is made, ^s authorized in this section, the buyer acquires a good title as against the original buyer. 3 It is not essential to the validity of a resale that notice of an intention to resell the goods be given by the seller to the original buyer. But where the right to resell is not based on the perishable nature of the goods or upon an express provision of the contract or the sale, the giving or fai'ure to give such notice shall be relevant in any issue involving the question whether the buyer had been in defaijlt an unreasonable lime before the resale was made. 4. It is not essential to the validity of a resale that notice of the time and place of- such resale should be given by the seller to the original buyer. 5. The seller is bound to exercise reasonable care and judgment in making a resale, and subject to this requirement may make a resale either by public or private sale. § 142. When and how the seller may rescind the sale. 1. An unpaid seller having a right of lien or having stopped the goods in transitu, may rescind the transfer of title and resume the property in the goods, where he expressly reserved the right to do so in ease the buyer should make default, or where- 100 CIVIL LAW AND PEAOTICE. the buyer has been in default in the payment of the price an unreasonable time. The Eeller shall not thereafter be liable to the buyer upon the contract to sell or the sale, but may recover from the buyer damages for any loss occajsioned by the breach of the contract or the sale. 2. The transfer of title shall not be held to have been rescinded by an unpaid seller until he has manifested by notice to the buyer or by some other overt act an intention to rescind. It is not necessary that such overt act should be communicated to the buyer but the giving or failure to give notice to the buyer of the intention to rescind shall be relevant in any issue involving the question whether the buyer had been in default an unreasonable time before the right of rescission was asserted. § 143. Effect of sale of goods subject to lien or stoppage in transitn. Subject to the provisions of this article, the unpaid seller's right of lien or stoppage in transitu is not affected by any sale, or other disposition of the goods which the buyer may have taade, unless the seller has assented thereto. If, however, a negotiable document of title has been issued for goods, no seller's lien or right of stoppage in transitu shall defeat the right of any purchaser for value in good faith to whom such document has been negotiated, whether such negotiation be prior or subsequent to the notification to the carrier or other bailee who issued such document, of the seller's claim to a lien or right of stoppage in transitu. § 144. Action for the price. 1. Where, under a contract to sell or a sale, the property in the goods has passed to the buyer, and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract or the sale, the seller may maintain an action against him for the price of the goods'. 2. Where, under a contract to sell or a sale, the price is payable on a day certain, irrespective of delivery or of transfer of title, and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an action for the price, although the property in the goods has not passed, and the goods have not been appropriated to the contract. But it shall be a defense to such an action that the seller at any time before judgment in such action has manifested an inability to perform the contract or the sale on his part or an intention not to perform it. 3. Although the property in the goods has not passed, if they cannot readily be resold for a reasonable price, and if the provisions of section one hundred and forty- five are not applicable, the seller may offer to deliver the goods to the buyer, and if the buyer refuses to receive them, may notify the buyer that the goods are thereafter held by the seller as bailee for the buyer. Thereafter the seller may treat the goods as the buyer's and may "maintain an action for the price. § 145. Action for damages for nonaoceptance of the goods. 1. Where the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may maintain an action against him for damages for nOnacceptance. 2. The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the buyer's breach of contract. 3. Where there is an available market for the goods in question, the measure of damages is, in the absence of special circumstances, showing proximate damage of a greater amount, the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or, if no time was fixed for acceptance, then at the time of the refusal to accept. 4. If, while labor or expense of material amount are necessary on the part of the seller to enable him to fulfill his obligations under the contract to sell br the sale, the buyer repudiates the conitract or the sale, or notifies the seller to proceed no further there- SALES AND WAKKANTIES. with, the buyer shall be liable to the seller for no greater damages than the se would have suffered if he did nothing toward carrying out the contract or the sale after receiving notice of the buyer's repudiation or countermand. The profit the seller would have made if the contract or the sale had been fully performed shall be considered in estimating such damages. § 146. Wlien seller may rescind contract or sale. Where the goods have not been delivered to the buyer, and the buyer has repudiated the contract to sell or sale, or has manifested his inability to perform his obligations thereunder, or has committed a material breach thereof, the seller may totally rescind the contract or the sale by giving notice of his election so to do to the buyer. § 147. Action for converting or detaining goods. Where the property in the goods has passed to the buyer and the seller wrongfully neglects or refuses to deliver the goods, the buyer may maintain any action allowed by law to the owner of goods of similar kind when wrongfully converted or withheld. § 148. Action for failing to deliver goods. 1. Where the property in the goods has not passed to the buyer, and the seller wrong- fully negleots or refuses to deliver the goods, the buyer may maintain an action against the seller for damages for nondelivery. 2. The measure of damages is the loss directly and naturally resulting in the ordinary course of events from the seller's breach of contract. 3. Where there is an available market for the goods in question, the measure of damages, in the absence of special circumstances showing proximate damages of a jgreater amount, is the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver. § 149. Specific performance. Where the seller has broken a contract to deliver specific or ascertained goods, a court having the powers of a court of equity may, if it thinks fit, on the application of the buyer, by its judgment or decree direct that the contract shall be performed S'pecifically, without giving the seller the option of retaining the goods on payment of damages. The judgment or decree may be unconditional, or upon such terms and conditions as to damages, payment of the price and otherwise, as to the court may seem just. § 150. Bemedies for breach, of warranty. 1. Where there is a breach of warranty by the seller, the buyer may, at his election, (a) Accept or keep the goods and set up against the seller the breach of warranty by way of recoupment in diminution or extinction of the price; (b) Accept or keep the goods and maintain an action against the seller for damages for the breach of warranty ; (c) Eefuse to accept the goods, if the property therein has not passed, and maintain an action against the seller for damages for the breach of warranty; (d) Rescind the contract to sell or the sale and refuse to receive the goods, or if the goods have already been received, return them or offer to return them to the seller and recover the price or any part thereof which has been paid. 2 When the buyer has claimed and been granted a remedy in any one of these ways, no other remedy can thereafter be granted. 3. Where the goods have been delivered to the buyer, he cannot rescind the sale if he know of the breach of warranty when he accepted the goods, or if he fails to notify the seller within a reasonable time of the election to rescind, or if he fails to return or 102 CIYIE LAW £BB PRACTICE. to offer to. return the goods, to :tlie seller in substantially as good condition as they were iii at the time the property was transferred to the buyer. But if deterioration or injury of the goods is, due to the breach of warranty, such deterioration or injury shall not prevent the buyer from returning or offering to return tlie goods to the seller and rescinding the sale. 4. Where the buyer Is entitled to rescind tlie sale and elects to do so, the buyer shall cease to be liable for the price upon returning or offering to return the goods. If the price or any part thereof. has already befen paid^ the seller shall be liable to repay so much thereof as has been paid, concurrent'y with the return of the goods, or immedi- ately after an offer to return the go6ds'in exchange for repayment of the price. 5. Where the buyer is entitled to rescind tlie sale and e'ects to do so, if the seller refuses to accept an offer of the buyer to return t'.;e goods, the buyer shall thereafter be deemed to hold the goods as bailee for the seller, but subject to a lien to secure the repayment of any portion of the price which has been paid, and with the remedies for the enforcement of such lien allowed to an unpaid seUer by section one hundred and thirty-four. ■ \ . . ^ - 6. The measure of damages for breach of warranty is the loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty. 7. In the case of 'breach of warranty of quality, such loss; in the absence of special circumstances showing proximate datoage of a greater amount, is the difference betweeii the value of the goods at the time of dalivery to the buyer and the value they would have had if they had answered to the warranty. §' 151. Interest and special damages. ', Nothing in this article sha'.l affect the right of the buyer or the seller to recover interest or special damages in any case where by law interest or special damages may be 'recoverable, or to recover money paid where the consideration for the payment of it has failed. § 152. Variation of implied obligations. Where any right, duty or "liability would arise under a contract to sell or a sale by- implication of law, it may be negatived, or varied by express agreement or by thi course of dealing between the parties, or by custom, if the custom be such as to bind both parties to the contract or the sale. ' i § 153. Riglits may be enforced by action. Where any right, duty or liability is declared by this article, it may, unless otherwise by this article provided, be enforced by action. § 154. Rule for cases not provided for by this article. In any case not provided for in this article, the rules of law and equity, including the law merchant, and in particular thfe rules relating to the kw of principal and agent and to the effect of fraud, misrepresentation, duress or coercion, mistake, bankruptcy, or other invalidating , cause, shall continue to apply to contracts to sell and to sales of goods. § 155. FroTisions not applicable to mortgages. .., The provisions of this article relating to contracts to sell and to sales do not apply, •^nless so stated, to any transaction in the form of a contract to sell or a sale which is intended to operate by way of mortgage, pledge, charge or other security. SALES AND WARRANTIES: 103 § 156. Definitions. ' '' ' " i: J: 'In' tUia article, uijless the context or siiBject^mattei? otherwise i'eqiiires : Kill* Actitin" includes counterelairti, set-off and suit inequity. ' iu". Buyer" means a person who buys or agrees to buy goods or any legal successor iil twt^re^t of such person. ■ , ■ "Defendant" includes a plaintilF's^aiiiSt Whom a right of set-off or codnierclaini is asserted. " Delivery " means voluntary transfer of possession from one person to another. " Divisible contract to sell or sale" means a contract to sell or a sale in which by its terms the price for a portion or portions of the goods less than the whole is fixed or ascertainable by computation. " Document of title to goods " includes any bill of lading, dock warrant, warehouse receipt or order for the delivery of goods, or any other document used in the ordinary course of business in the sale or transfer of goods, as proof of the possession or control of the goods, or authorizing or purporting to authorize the possessor of the document to transfer or receive, either by indorsement or by delivety, goods represented by such document. " Fault " means wrongful act or default. " Fungible goods " means goods of which any unit is from its nature or by mercantile usage treated as the equivalent of any other unit. " Future goods " means goods to be manufactured or acquired by the seller after the making of the contract of sale. " Goods " include all chattels personal other than things in action and money. The term includes em/blements, industrial growing crops, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale. " Order " in sections of this act relating to documents of title means an order by indorsement on the document. " Person " includes a corporation or partnership or two or more persons having a joint or common interest. " Plaintiff " includes defendant asserting a right of set-off or counterclaim. " Property " means the general property in goods, and not merely a special property " Purchaser " includes mortgagee and pledgee. "Purchases" includes taking as a mortgagee or as a pledgee. " Quality of goods " includes their state or condition. " Sale" includes a bargain and sale as well as a sale and delivery. " Seller " means a person who sells or agrees to sell goods, or any legal successor in the interest of such person. " Specific goods " means goods identified and agreed upon at the time a contract to sell or a sale is made. 2. A thing is done " in good faith " within the meaning of this article when it is in fact done honestly, whether it be done negligently or not. 3. A person is insolvent within the meaning of this article who either has ceased to pay his debts in the ordinary course of business or cannot pay his debts as they become due, whether he has committed an act of bankruptcy or not, and whether he is insolvent within the meaning of the federal bankruptcy law or not. 4. Goods are in a "deliverable state" within the meaning of this article when they are in such a state that the buyer would, under the contract, be bound to take delivery of them. S 157. Article does not apply to existing sales op contracts to sell. None of the provisions of this article shall apply to any sale, or to any contract to sell, made prior tc the taking effect of this article. 1G4 CIVIL LAW AND PRACTICE. $ 158. No repeal of uniform 'warebonse receipt laws. Nothing in this act or in any repealing clause thereof shall be construed to repeal or limit any of the provisions of the law to make uniform the law of warehouse receipts, or of the law, if enacted, to make uniform the law of bills of lading, or of section nine hundred and forty-three of chapter eighty-eight of the laws of nineteen hundred and nine, constituting chapter forty of the consolidated laws. NEGOTIABLE INSTRUMENTS. 105 CHAPTER VII. NEGOTIABLE INSTRUMENTS. Sbotion 1. By what law governed. 2. Requisites of negotiability. 3. Consideration of negotiable instruments. 4. Negotiation. 5. Rights of holder. 6. Liability of parties.. § 1. By what law governed. The rights and remedies of parties to bills of exchange and promissory notes, prior to 1897, were governed by the rules of the law merchant, as declared by the courts, and by such statutory provisions as had from time to time been enacted by the Legislature of this State. These statutory pro- visions were repealed in 1897 by an act passed in that year, forming chapter 50 of the General Laws, and known as the Negotiable Instruments Law. This act was in turn repealed by chapter 43 of the Laws of 1909, entitled " An act in relation to negotiable instruments, constituting chapter thirty- eight of the consolidated laws," and known, as was its predecessor, as the Negotiable Instruments Law. This later act governs all negotiable instru- ments made and delivered on and subsequent to October first, 1897, except that in any case not provided for by that act the rules of the law merchant still govern. (Negotiable Instruments Law, §§ 6, 7. See B. 0. & G. Con- solidated Laws. ) Only a few elementary principles of this branch of the law can be here given, and resort must be had to the statute above mentioned for a full statement. § 2. Requisites of negotiability. An instrument to be negotiable must conform to the following require- ments : It must be in writing and signed by the maker or drawer ; must contain an unconditional promise or order to pay a sum certain in money ; must be payable on demand or at a fixed determinable future time ; must be payable to order or bearer ; and when the instrument is addressed to a K Y. 19.) But, as between the holder and drawer of a check; presentment for payment may be made at any time, and delay in presentment will not discharge the liability of the drawer unless loss has resulted. (Little V. Phoenix Bank, 2 Hill, 425; ;Carroll v. iSweet, 128 N. Y. 19.) But if it is not presented fbr payment within a reasonable time after its issue the drawer will be discharged from liability to the extent of the loss caused by the delay. (Negotiable Instruments Law, § 322.) The liability of an indorser jof a notb' to pay it is made tb depend upon the implied condition that payaient shall be demanded of the maker at maturity, and, in the event of default, tha^ notice of nonpaymieht shall be immediately given to the indorsed. ,', These conditions are for the benefit of the indorser, to enable him tD'havefptoiript notice of the default, so that he may immediately take steps to provide for his indemnity. The indorser may, however, prior to the maturity of the note, waive this conditions of demand and notice of ncinpayiiient. The waiver taiay'be either oral or in writing, and may result from' any -'Understanding between the parties which is of a character tb satisfy the mind that a waived is intended. (Cady v. Bradshaw, 116 N. Y. Il88.) The waiver miist, however, be clearly established, and' will not be inferred from douhtful or equivocal acts or language,. (Id. ;.Bo^ v. Hurd, 71 N, Y. 14.) For the form of a complaint in ' aii action agaiiist the maker and indorser of a note, see Form No. 22. ' 112 CIVIL LAW AND PRACTICE. CHAPTER VIII. mechanics' xiews. Section 1. Jurisdiction. 2. Definitions in Lien Law. 3. Extent of lien. 4. Liens under contracts for public improvements. 5. Liens for labor on railroads. 6. Liability of owner for advance payments, collusive mortgages and incum- brances. 7. Demand of terms of contract. 8. Contents of notice of lien. 9. Filing of notice of lien. 10. Service of notice of lien. 11. Priority of liens. 12. Assignment of liens. 13. Assignment of contracts and orders to be filed. 14. Assignment of contracts and orders for public improvements. 15. Duration of lien. 16. Duration of lien for public improvements. 17. Discharge of lien generally. 18. Discharge of lien by payment of money into court. 19. Discharge of lien for public improvement. 20. Building loan contracts. 21. Construction of Lien Law. 22. Enforcement of mechanic's lien. 23. Priority of liens for public Improvements. § 1. Jurisdiction. The Lien Law of this State, constituting chapter 33 of the Consolidated Laws, provides that " a mechanic's lien on real property may be enforced against such property, and against a person liable for the debt upon which the lien is founded, by an action, by the lienor, his assignee or legal representative, in a court which has jurisdiction in an action founded on a contract for a sum of money equivalent to the amount of such debt. (Lien Law, § 41, See B. C. & G. Statutes.) This permits such action to be brought in a justice's court where the debt upon which the lien is founded does not exceed two hundred dollars. (Just. Ct. Act, § 3.) It also provides that " a lien for labor done or materials furnished for a public improvement may be enforced against funds of the State or the municipal corporation for which such improvement is constructed, to the extent prescribed in article two of this chapter, and against the MECHANICS' LIENS. 113 contractor or subcontractor liable for the debt, by a civil action, in the same court and in the same manner as a mechanic's lien on real prop- erty." (Lien Law, § 42. See B. C. & G. Statutes.) In courts of record, an action to foreclose a lien is similar to an action to foreclose a mortgage. But in courts not of record, such as courts of justices of the peace, the proceedings are different. The action proceeds as a personal one upon the agreement set forth in the notice of lien. There is no provision for the adjustment of equities among the lienors and incumbrances, if any should exist, and the judgment is enforced by execu- tion in the same manner and subject to the same limitations and restric- tions as judgments in actions at law, except that the sale is of the interest of the owner at the time of the filing of the lien and not from the entry of the judgment. The remedy afforded to a lienor in a court of a justice of the peace falls far short of that available to him in an action in a court of record. (Faville v. Haddock^ 39 Misc. 397, 80 N. Y. Supp. 23; Ray on Mechanics' Liens, § 243.) The power of the justice is limited to the rendering of a simple money judgment against the defend- ant to be enforced by an execution authorizing the sale of the title which the judgment debtor had in the property at the time the lien was filed. {Drall V. Gordon, 51 Misc. 618, 101 K Y. Supp. 618 ; Bay on Mechanics' Liens, § 243.) § 2. Definitions in Lien Law. Before attempting to state what persons are entitled to avail them- selves of the rights conferred by this statute, or the manner in which they must proceed to avail themselves of its benefits, it is important to consider the meaning of the terms used therein, as defined by the com- missioners whose revision resulted in the present law. These terms are defined as follows: Lienor. The term "lienor," when used in this chapter, means any person having a lien upon property by virtue of its provisions, and includes his successor in interest. Eeal property. The term " real property," when used in this chapter, includes real estate, lands, tenements and hereditaments, corporeal and incorporeal, fixtures, and all bridges and trestle work, and structures connected therewith, erected for the use of railroads, and all oil or gas wells and structures and fixtures connected therewith, and any lease of oil lands or other right to operate for the production of oil or gas upon ^uch lands, and the right of franchise granted by a municipal corporation for the use of the streets or public places thereof, and all structures placed thereon for the use of such right or franchise. 8 .114 CIVIL LAWVAI^D'\P1[ACTICE. Owner. The term "; owner," tvheii ;used' in this chapter includes the owner in fee of real property, or of a less estate therein, a lessee for a term of years, a vendee in possession under a contract for the purchase of such real property, and all, persons having any right, title or interest in such real property, which may be sold under an execution in pursuance cjf the provisions of statutes relating to the enforcement of liens of judgment, and all persons having any right or franchise granted by a municipal corporation to use the streets and public places thereof, and any right, title or interest in and to such franchise. The purchaser of real property at a statutory of judicial sale shall be deemed the owner thereof, from, the time of such sale. If the purchaser at such sale fails to complete the purchase, pursuant to the terms of the sale, all liens created by his consent after such sale shall be a lien on any deposit made by him and not on the real property sold. Improvement. The term " improvenlent," when used in this chapter, includes the erection, alteration, or repair of any structure upon, con- nected withj or beneath the surface of, any real property and any work done upon such property, or materials furnished for its permanent improvement, and shall also include any work done or materials furnished in equipping any such" strticture wi'th any chandeliers, brackets or other fixtures or apparatus for supplying gas or electric light and shall also include the drawing by an architect or engineer, of any plans or specifi- cations which are used in connection with such improvement. ■ Public improvement; The term " public improvement," when used in this chapter, means an improvement upon any real property belonging to the State or municipal corporation. Contractor. The term " contractor," is/hen used in this chapter, means a person who enters into a contract' ^ith the ovioier of real property fof the improvement thereof, or with the State or a municipal corporation for a public improvement. ■ :^ >. Subcontractor. The term " subcontractor," when used in this chapter^ means a person who enters into a contract with a contractor for the improvement of such real property or such public improvement, or with a person who has contracted with or; through such contractor for the performance of his contract or. any part thereof. Laborer. The term " laborer," when used in this chapter, means any person who performs labor or services upon such improvement. Materialman. The term " materialman," when used in this chapter, means any person, who furnishes mf^terial for such improvement. (Lien Law, § 2. See B. C. & G, Consolidated, Laws.) MECHANICS' LIENS. 115 § 3. Extent of lien. '■■■. The statute provides that " a contractor, subcontractor, laborer, or materialman, who performs labor or furnishes materials for the improve- ment of real property with the consent or at the request of the owner thereof, or his agent, contractor or subcontractor, shall have a lien for the principal and interest of the value, or the agreed price, of such labor or materials upon the real property improved or to be improved and upon such improvement, from the time of filing a notice of such lien as pre- scribed in this article." (Lien Law, Art. 2, § 3. See B. C. & G. Statutes.) The courts in construing the language of this section in connection with the report of the commissioners of revision have declared that it was the plain intention of the Legislature to bring all labor performed or materials furnished in the improvement of real estate, no matter by what name they may be called, or by what description they may be designated, within the liberal and beneficent purposes of the statute, and have accordingly decided that dynamite furnished to and actually used by a subcontractor for the purpose of blasting rock and breaking up earth in excavating for the grading and building of the roadbed of a railway, ia material within the meaning and contemplation of this section. {Schaghti- cohe Powder Co. v. G. & J. By. Co., 183 K Y. 306.) The consent of the owner of the property to the improvement, which the statute requires in the absence of the owner's request, may be implied from his conduct and attitude in respect to the improvement made. But the facts from which the inference of a consent is to be drawn must be such as to indicate at least a willingness on his part to Lave the improvement made, or an acquiescence in the means adopted with knowledge of the object for which they are employed. {Cowen V. Paddock, 137 N. Y. 188; Nat. Wall Paper Co. v. Sire, 163 N. Y. 122.) Much must depend upon the facts and circumstances surrounding each <;ase, and upon the extent of the possession and control of the property by the owner at the time the improvement is made and the alleged consent is given. Thus, where repairs are made upon demised premises by a tenant the consent of the landlord must be shown by more than mere passive acquiescence to warrant the filing of a lien against his property. {Rice V. Culver, 172 N. Y. 60; Aetna Elevator Co. v. Beeves, 125 App. Div. 842; Tinsley v. Smith, 115 App. Div. 708, affd., 194 N. Y. 581.) The statute provides that the mechanic's lien on real property " shall extend to the owner's right, title or interest in the real property and improvements existing at the time of filing the notice of lien, except as hereinafter in this article provided. If an owner assigns his interest in 116 CIVIL LAW AND PRACTICE. such real property by a general assignment for the benefit of creditors within thirty days prior to such filing, the lien shall extend to the interest thus assigned. If any part of the real property subjected to such lien be removed by the owner or by any other person, at any time before the discharge thereof, such removal shall not affect the rights of the lienorj either in respect to the remaining real property, or the part so removed. If labor is performed for, or materials furnished to, a contractor or sub- contractor for an improvement, the lien shall not be for a sum greate? than the sum earned and unpaid on the contract at the time of filing the notice of lien, and any sum subsequently earned thereon. In no case shall the owner be liable to pay by reason of all liens created pursuant to this article a sum greater than the value or agreed price of the labor and materials remaining unpaid, at the time of filing notices of such liens, except as hereinafter provided. (Lien Law, § 4. Kay on Mechanics' Liens, § in,) § 4. Liens under contracts for public improvements. A person performing labor for or furnishing materials to a contractor, his subcontractor or legal representative, for the construction of a pUblic improvement pursuant to a contract by such contractor with the State or a municipal corporation, shall have a lien for the principal and interest for the value or agreed price of such labor or materials upon the moneys of the State or of such corporation applicable to the construction of such improvement, to the extent of the amount due or to become due on such contract, upon filing a notice of lien as prescribed in this article, except as hereinafter in this article provided. (Lien Law, § 5. See B. C. & G. Consolidated Laws.) § 5. Liens for labor on railroads. Any person who shall hereafter perform any labor for a railroad corporation shall have a lien for the value of siieh labor upon the railroad track, rolling-stock and appurtenances of such railroad corporation and upon the land upon which such railroad track and appurtenances are situated, by filing a notice of such lien in the office of the clerk of any county wherein any part of such railroad is situated, to the extent of the right, title and interest of such corporation in such property, existing at the time of such filing. The provisions of this article relating to the contents, filing and entry of a notice of a mechanic's lien, and the priority and duration thereof, shall apply to such liens. A copy of the notice of such lien shall be personally served upon such corporation within ten days after the filing thereof in the manner prescribed by the MECHANICS' LIENS. 117 Justice Court Act for the service of summons in actions in justices' courts against domestic railroad corporations. (Lien Law, § 6. See B. C. & G. Consolidated Laws. See Just. Ct. Act, §§ 51-55.) Not only laborers, but also persons furnisMng materials for the con- struction of a railroad, are entitled to a lien. {SchagMicoke Power Co. v. 0. & J. By. Co., 183 N. Y. 306 ; Eay on Mechanics' Liens, § 212-a.) § 6. Liability of owner for advance payments, collusive mortgages and incumbrances. Any payment by the owner to a contractor upon a contract for the improvement of real property, made prior to the time when, by the terms of the contract, such payment becomes due, for the purpose of avoiding the provisions of this article, shall be of no effect as against the lien of a subcontractor, laborer or matesialman under such contract, created before such payment actually becomes due. A mortgage, lien or incumbrance made by an owner of real property, for the purpose of avoiding the pro- visions of this article, with the knowledge or privity of the person in whose favor the mortgage, lien or incumbrance is created, shall be void and of no effect as against a claim on account of the improvement of such real property, existing at the time of the creation of such mortgage, lien or incumbrance. (Lien Law, § 7. See B. C. & G. Consolidated Laws.) The statute above cited does not prohibit payments made before they became due, but only such payments when made for the purpose of avoiding the provisions of the statute. It is not enough that such pay- ments may impair the effect of the statute, and thus pro tanto avoid it, but they must also have been made with the purpose to avoid it. {Tom- masi V. Archibald, 114 App. Div. 838, 100 N. Y. Supp. 367 ; Wolf v. Mendelsohn, 87 N. Y. Supp. 465. Collusion must be proved by the lienor who is seeking to charge the owner therewith, since payments made without notice of the lien, actual or constructive, will be credited to the owner, even though the owner have knowledge of the indebtedness from the contractor -to the subcontractor. (Eay on Mechanics' Liens, § 177.) § 7. Demand of terms of contract. A statement of the terms of a contract pursuant to which an improve- ment of real property is being made, and of the amount due or to become due thereon, shall be furnished upon demand, by the owner, or his duly authorized agent, to a subcontractor, laborer or materialman performing labor for or furnishing materials to a contractor, his agent or subcon- tractor, under such contract. If, upon such demand the owner refuses 118 CIVIL LAW AND PEACTICE. or negle'cts to furni$Ii such statement or falsely states the terms of such contract or the amount due or to become due therecn, and a subcontractor, laborer or materialman has not been paid the. amount of his claim against a contractor or subcontractor, under such contract, and a judgment has been obtained and execution issued against such contractor or subcon- tractor and returned wholly or partly unsatisfied, the owner shall be liable for the loss sustained by reason of such refusal, neglect or false statement, and the lien of such subcontractor, laborer or materialman, filed as pre- scribed in this article, against the real property improved for the labor performed or materials furnished after such demand, shall exist to the same extent and be enforced in the same manner as if such labor and materials had been directly performed for and furnished to such owner. (Lien Law, § 8. See B. C. & G. Consolidated Laws.) This statute does not limit the right to. demand the terms of the con- tract to one such demand. The interested parties have the right to be kept informed as to the condition of the contract throughout the entire time of its performance, and as to the condition of the account between the cofitracting parties. (Glens Falls Co. v. Schenectady Coal Co., 144 K. Y. Supp. 519; Eay on Mechanics'; Liens, § 172.) § 8. Contents of notice of lien. The statute provides that the notice of lien shall state : 1. The name and residence of the lienor; and if the lienor is a partner- ship or a corporation, the business address of such firm, or corporation, the names of partners and principal place of business, and if a foreign corporation, its principal place of business within the State. 2. The name of the owner of the real property against whose interest therein a lien is claimed, and the interest of the owner as far as known to the lienor. ■ 3. The name of the person by whom the lienor was employed, or to whom he furnished or is to furnish materials; or, if the lienor is a contractor or subcontractor, the person with whom the contract was mad^. 4. The labor performed or materials, furnished and the agreed price or value thereof, or materials actually manufactured for but not delivered to the real property and the agreed price or value thereof. 5. The amount unpaid to the lienor for such labor or materials. 6. The time when the first and last items of work were performed and materials were furnished. 7. The property subject to the lien, with a description thereof suffi- cient for identification; and if in a city or village, its location by street and number, if known. A failure to state the name of the true owner MECHANICS' ■LIENS. ^ ■ il9 kir contractor, or a misdescription 61 th6 true owner, shall not- affect the validity of the lien. The iiotice must'Be verified by the lienor or his agent, to the effect that the statements therein contained are true to his knowledge, 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. (Lien Law, § 9. See B. C. & G. Consolidated Laws.) This is the notice required where the lien is upon real property under ■section 3 of the Lien Law, and also where the lien is for labor on a railroad under section 6 of that acl. A somewhat different notice of lien is required where the lien is upon the funds of the State or a municipal corporation for labor performed or materials furnished in the construction of a public improvement as will be noticed hereafter. Too much care cannot be taken in the preparation of this notice; for although section 23 of the statute provides that " this article is to be construed liberally to Secure the beneficial interests and purposes thereof," and that " a substantial compliance with its several provisions shall be sufficient for the validity of a lien and- to give jurisdiction to the courts to enforce the same," and the courts will give full effect to that provi- sion, it does not authorize them to (entirely dispense with what the Statute says the notice shall contain. (Mahley v. German Bank, 174 N. Y. 499; Waters v. Goldberg, 124 App. Divi 511, 108 N. Y. Supp. 992; Held V. City of New Yorh, 83 App. Div. 50d ; McDonald v. Mayor, etc.. of New York, 170 N, Y. 409; Hurle^ y. Tucker, 128 App. Div. 580; Ray on Mechanics' Liens, § 160.) The above will be applied to a state- ment in the notice of the business address and principal place of business of a corporation, required by subdivision 1 of section 9. (Hurley v. Tucker, 128 App. Div. 580.) And where all the members of a copartner- ship have filed a lien, stating that they have a lien, this may be held a substantial compliance with the requirements of the statute notwith- standing the omission to state the copartnership or the copartnership name. (Waters v. Goldberg, 124 App. Div. 511. But see Kane v. llutkoff, 81 App. Div. 105.) Subdivision 2 of section 9 above quoted does not require the lienor to state at his peril the name of the true owner, but merely that he shall do the best he can in that direction. (Abelman v. Myer, 122 App. Div. 470, 106 N. Y. Supp. 978.) An attempt must be made to name the' owner, but an unsuccessful attempt will not be fatal. (De Klyn v. Gould, 165 K Y, 282. And see Eay on Mechanics' Liens, § 163.) The notice of lien must state either explicitly or by plain inference the value or the agreed price of the labor performed or materials furnished at the time of filing the notice. (Finn y: Smith, 186 K Y. 465; Spring 120 CIVIL LAW AND PKACTICE. V. Collins Building & Ccmst. Co., 60 Misc. 239 ; Bossert v. Happel, 40 Misc. 569 ; Toop v. Smith, 181 N. Y. 283.) The statute contemplates that the notice shall contain a statement of the kind and amount of labor per- formed or materials furnished by the lienor. Such statement need not necessarily be a specific bill of particulars, but there must be such a general reference to the kind and amount of materials and labor fur- nished, or to be furnished, as to advise those who have a legal interest in the subject of the character and extent of the demand upon which the claim to a lien is based. {Toop v. Smith, 181 'N. Y. 283.) But the notice need not state separately the value of the material furnished and labor performed. {Felgenhauer v. Haas, 123 App. Div. 75, 108 N. Y, Supp. 476; Woolf v. Schaefer, 103 App. Div. 567.) A statement in the disjunctive excludes both of the matters sought to be affirmed, and is not in compliance with the law. It is therefore improper to state in the notice of lien that the " agreed price or value " of the labor or materials is a sum specified. (Villaume v. Kirchner, 85 N. Y. Supp. 377; Siegel v. Ehrshowshy, 46 Misc. 606 ; Bradley & Currier Co. v. Pacheteau, 71 App. Div. 148, 175 ]Sr. Y. 492 ; Alexander v. Costello, 59 Misc. 491. And see Weiss V. Eenney, 59 Misc. 279.) A notice of lien which fails to state when the first item of work was done, or anything from which that time may be inferred is insufficient. {Marley v. Germari Banh, 174 N. Y. 499.) But a statement that the first item of work was done, and the first item of material was furnished on or about a date, specified will be a sufficient compliance with the statute. {Hurley v. Tucker, 128 App. Div. 580; Kay on Mechanics* Liens, § 165.) A description of the prop- erty subject to the lien is sufficient if it enables a person familiar with the locality to identify the property with reasonable certainty to the exclusion of other property. (Id.) A verification of the notice by one of two joint lienors is sufficient. {Waters v. Goldberg, 124 App. Div. 5li.) An acknowledgment cannot be sustained for the verification which the statute requires. {Schenectady Go. v. Schenectady R. Co., 106 App. Div. 336.) Where a lien is sought to be placed upon State or corporate funds for labor performed or materials furnished for a public improvement the notice must " state the name and residence of the lienor, the name of the contractor or subcontractor for whom the labor was performed or materials furnished, the amount claimed to be due or to become due, the date when due, a description of the public improvement upon which the labor was performed and materials expended, the kind of labor performed and materials furnished, and materials actually manufactured for but not delivered to such public improvement, and give a general description MECHANICS' LIENS. 121 of the contract pursuant to which such public improvement was con- structed. If the lienor is a partnership or a corporation, the notice shall state the business address of such partnership or corporation, the names of the partners, and if a foreign corporation, its principal place of business within the State. If the name of the contractor or subcontractor is not known to the lienor, it may be so stated in the notice, and a failure to state correctly the name of the contractor or subcontractor shall not affect the validity of the lien. The notice must be verified by the lienor or his agent, to the effect that the statements therein contained are true to his own knowledge, 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. (Lien Law, § 12.) § 9. Filing of notice of lien. The notice of lien may be filed at any time during the progress of the work and the furnishing of the materials, or within four months after the completion of the contract or the final performance of the work, or the final furnishing of the materials, dating from the last item of work performed or materials furnished. The notice of lien must be filed in the clerk's office of the county where the property is situated. If such prop- erty is situated in two or more counties, the notice of lien shall be filed in the office of the clerk of each of such counties. The county clerk of each county shall provide and keep a book to be called the " lien docket," which shall be suitably ruled in columns headed " owners," " lienors," " property," " amount," " time of filing," " proceedings had," in each of which he shall enter the particulars of the notice, properly belonging therein. The date, hour and minute of the filing of each notice of lien shall be entered in the proper column. The names of the owners shall be arranged in such book in alphabetical order. The validity of the lien and the right to file a notice thereof shall not be affected by the death of the owner before notice of the lien is filed. (Lien Law, § 10. See B. C. & G. Consolidated Laws.) This is the requirement of the statute where the lien is on real property, or for labor performed for a railroad corporation. If the notice of lien is not filed within the time prescribed by the statute, the lien is void. (McMahon v. Hodge, 2 Misc. 234, 21 N. Y. Supp. 971 , Eay on Mechanics' Liens, § 169.) If the clerk, in filing the lien, dockets it incorrectly, the rights of the claimant are not thereby affected, for the claimant's duty is performed when he files the notice with the clerk. (Hurley v. Tucker, 128 App. Div. 580, 112 IST. Y. Supp. 980, affd., 198 ]Sr. Y. 534.) 122 CIVIL LAW ^KD PEACTICE. There is nothing in Jhe, statute! prohibiting the , filing of successivje liens for the Same work, or declaring that a notice of lien filed upon the completion of a contract is void; b^ause other notices of liens have been filed for a portion of 'the work done under the contract. (Clark v. Heyl- man, 80 App. Div. 572,. 80. JST. Y. Supp. 794.) At any time before the construction of a public improvement is com!- pleted and accepted by the State or by the municipal corporation, and within thirty days after such copipletion and acceptance, a person per,- fbrming work for or furnishiiig materials to a contractor, his subcon: tractor, assignee or legal representative, may file a notice of lien with the head of the department qr bureau having icharge of such construction and with the comptroller of the State or with the financial ofiicer of the municipal corporation, or other officer or person charged with the custody and disbursements of the State or corporate fuijds applicable to the c'ori^ tract under which the claim i^made. ,; „T|ihe ;comptroller of the State or the financial officer of the municipal; corporation or other officer , or person with whom the notice is filed shall ^nter the same in a book provided for that purpose, to be called the " lien book." Such entry shall include the name and residence of the lienor, the name of the contractor or subcon- tractor, the amount of the lien and date of filing, and a brief designation of the contract under which the lien arose. (Lien Law, §12.) It will be noticed that -the Lien Law provides a different procedure to create liens in cases of public improvements from that provided in case of private improvements. The erection of a schoolhouse for a common school district upon land the title of which is in the trustees of the school district, but which belongs in reality to the district, is a public improve- ment within the meaning. of the statute; and the notice of lien should he filed with the board of trustees and the treasurer of the school district. (Termlliger v. Wheeler, 81 App., Div. 460, 81 K Y. Supp. 173. See Westgate v. Shirley, 42 Misc. 245, 86 IST. Y. Supp. 593.) § 10. Service of notice of lien. At any time after filing the notice of lien, the lienor may serve a copy of such notice upon the owner, by delivering the same to him personally, or if the owner cannot be found, to hi$ agent or attorney, or by leaving it at his last known place , of residence in the city or town in which the real property or some part thereof is situated, with a person of suitable age and discretion, or by registered letter addressed to his last known place of residence, or, if such owner has no such residence in such city or town, or cannot be found, and he has no agent or attorney, by affixing a copy thereof conspicuously on such property, between the hours of nine MECHANICS' LIEIfS. 123 o'clock in the forenoon and four o'clock in the afternoon; if such owner be a corporation, said service shall be made by delivering such copy to and leaving the same with, the president, vice-president, secretary or clerk to the corporation, the cashier, treasurer or director or managing agent thereof, personally, within the State, or if such officer cannot be found within the State by affixing a copy thereof conspicuously on such prop- erty between the hous of nine o'clock in the forenoon and four o'clock in the afternoon, or by registered letter addressed to its last known place of business. Until service of the notice has been made, as above pro- vided, an owner, without knowledge of the lien, shall be protected in any payment made in good faith to any contractor or other person claiming a lien. A failure to serve the notice does not otherwise affect the validity of such lien. (Lien Law, § 11. See B. C. & G. Consolidated Laws. See Hamilton v. Coogan, 31 Abb. IST. C. 297, 7 Misc. 677, 28 N"j Y. Supp. 21.) As between the builder and the owner of the property improved, the lien attaches, and the rights of the lienor become fiXed, upon filing the notice, and is not affected by failure to serve the notice. (Id., McCorMe v. Herrman, 117 N. Y. 303; Kenny v. Apgar, 93' IST. Y. 5^1; Hall v. Sheehan, 69 IST. Y. 618; Kelly v. BloomingdaU, 139 N. Y. 343.) Vv'here a lien is filed for labor on a railroad a copy of the lien must be personally served upon the corporation within ten days after the filing in the manner prescribed by the Justice Court Act for the service of a summons in actions in justices' courts against domestic railroad corpora- tions. (Lien Law, § 6.) Even though no copy of the notice has been served, if the owner makes payment with knowledge that a lien 'has been filed, he may be liable to the lienor to the extent of the payment in the event of a deficiency. {Kelly V. Bloomihgdale, 139 N". Y. 343; Ray on Mechanics' Liens, § 170.) § 11. Priority of liens. A lien for materials furnished or labor performed in the improvement of real property shall have priority over a conveyance, judgment or other claim against such property not recorded, docketed or filed at the time of the filing of the notice of such lien, except as hereinafter in this article provided; over advances made upon any mortgage or other incumbrance thereon after such filing, except as hereinafter in this article provided; and over the claim of a creditor who has not furnished materials or per- formed labor upon such property, if such property has been assigned by the owner by a general assignment for the benefit of creditors, within thirty days before the filing of such notice; and also over an attachment 124 CIVIL LAW AND PEACTICE. hereafter issued or a money judgment hereafter recovered upon a claim, which in whole or in part, was not for materials furnished, labor per- formed or moneys advanced for the improvement of such real property; and over any claim or lien acquired in any proceedings upon such judg- ment. Such liens shall also have priority over advances made upon a contract by an owner for an improvement of real property which contains an option to the contractor, his successor or assigns to purchase the prop- erty, if such advances were made after the time when the labor began or the first item of material was furnished, as stated in the notice of lien. If several buildings are erected, altered or repaired, or several pieces or parcels of real property are improved, under one contract, and there are conflicting liens thereon, each lienor shall have priority upon the particular building or premises where his labor is performed or his materials are used. Persons shall have priority according to the date of filing their respective liens, except as hereinafter in this article pro- vided; but in all cases laborers for daily or weekly wages shall have preference over all other claimants under this article, without reference to the time when such laborers shall have filed their notices of liens. (Lien Law, § 13; and see Kay on Mechanics' Liens, §§ 179-185.) § 12. Assignment of liens. A lien, filed as prescribed in this article, may be assigned by a written instrument signed and acknowledged by the lienor, at any time before the discharge thereof. Such assignment shall contain the names and places of residence of the assignor and assignee, the amount of the lien and the date of filing the notice of lien, and be filed in the ofBce where the notice of the lien assigned is filed. The facts relating to such an assignment and the names of the assignee shall be entered by the proper officer in the book where the notice of lien is entered and opposite the entry thereof. Unless such assignment is filed, the assignee need not be made a defendant in an action to foreclose a mortgage, lien or other incumbrance. A payment made by the owner of the real property subject to the lien assigned or by his agent or contractor, or by the contractor of a municipal corporation, to the original lienor, on account of such lien, without notice of such assignment and before the same is filed, shall be valid and of full force and effect. Except as prescribed herein, the validity of an assignment of a lien shall not be affected by a failure to file the same. (Lien Law, § 14. See B. C. & G. Consolidated Laws.) A mechanic's lien which has been filed is a chose in action and may be assigned as prescribed in the above statute. (First Nat. Bank v. Mitchell, 46 Misc. 30, 93 IST. T. Supp. 231.) But the right to acquire a lien is MECHANICS' LIENS. 125 given to the laborer or materialman for his personal protection, and the right to create it cannot be assigned, unless the assignment is made for the benefit of the assignor to be held as his agent. (Bollin v. Cross, 45 N. Y. 766; Chambers v. Vassar's Sons, 81 Misc. 562, 143 N. Y. Supp. 615; Ray on Mechanics' Liens, § 245.) § 13. Assignments of contracts and orders to be filed. No assignment of a contract for the performance of labor or the fur- nishing of materials for the improvement of real property or of the money or any part thereof due or to become due therefor, nor an order drawn by a contractor upon the owner of such real property for the payment of such money, nor an order drawn by a subcontractor upon a contractor or subcontractor for such payment, nor an order drawn by an owner upon the maker of a building loan, nor an assignment of moneys due or to grow due under a building loan contract, shall be valid, unless the contract (other than a building loan contract) or a statement containing the sub- stance thereof and such assignment or a copy of each or a copy of such order, be filed within ten days after the date of such assignment of con- tract, or such assignment of money, or such order, in the office of the county clerk of the county wherein the real property improved or to be improved is situated, and in case of a contract with a municipal corpo- ration, also with the comptroller or chief fiscal officer thereof, and such contract, assignment or order shall have effect and be enforceable from the time of such filing, and no such assignment or order shall have any validity until the same shall have been so filed. Such clerk shall enter the facts relating to such assignment or order in the " lien docket " or in another book provided by him for such purpose. (Lien Law, § 15. See B. C. & G. Consolidated Laws.) This section of the Lien Law does not apply solely to mechanics' liens and the rights of lienors, but applies to all assignments of contracts for the performance of labor or furnishing of materials for the improvement of real property ; and an assignee of the contract cannot until such filing maintain an action thereon for prospective profits and delays upon an alleged breach of the contract. (Williams Engineering Co. v. City of New YorTe, 175 App. Div. 571.) But this section cannot be invoked for the benefit of one having a judgment against the contractor for damages for personal injuries or an attacking creditor of such contractor. {Edison Elec. Illuminating Co. v. Frick Company, 221 N, Y. 1.) § 14. Assignment of contracts and orders for public improvements. No assignment of a contract for the performance of labor or the furnishing of materials for a public improvement, or of the money, or 126 CIVIL LAW AND PKACTICE. any part thiereof, due, or to become idue, . tkerefor, nor an order drawn by the contractor or subcontractor upon the municipal corporation, or the head of the department or bureau having charge of the construction of such public improvement, or the fina:nHal officer of the municipal corpo- ration, or other officer or person charged with the custody and disburse- ment of the corporate funds applicable to the contract for such public improvement, shall be valid unless such assignment or order, or a copy thereof, be filed -within ten days after the date of such assignment of contract, or such assignment of money, or such order, with the head of the department or bureau having charge of such construction, and with tho financial officer of the municipal corporation or other officer or person charged with the custody and disbursement of the corporate funds appli- cable to the contract for such public improvement, and such assignment or order shall have effect and be enforceable from the time of such filing, and no such assignment or order shall have any validity until the same shall have been so filed. The financial officer of the municipal corpo- ration, or other officer or person with whom the assignment or order, or copy thereof, is filed, shall enter the facts relating to the same in tho lien book or other book provided for such purpose. (Lien Law, § 16. See B. C. & G. Consolidated Laws.) § 15. Duration of lien. No lien specified in this article shall be a lien for a longer period than one year after the notice of lien has been filed, unless within that time an action is commenced to foreclose the lien, and a notice of the pendency of such action, whether in a court of record or in a court not of record, is filed with the county clerk of the county in which the notice of lien is filed, containing the names of the parties to the action, the object of tho action, a brief description of the real property affected thereby, and the time of filing the notice of lien ; or unless an order be granted within one year from the filing of such notice by a court of record, or a judge or justice thereof, continuing such lien, and sUch lien shall be redocketed as of the date of granting such order and a statement made that such lien is continued by virtue of such order. No lien shall be continued by such order for more than one year from the granting thereof, but a new order and entry may be made in each successive year. If a lienor is made a party defendant in an action to enforce another lien, and the plaintiff or such defendant has filed a notice of the pendency of the action within the time prescribed in this section, the lien of such defendant is thereby continued. Such action shall be deemed an action to enforce the lien of such defendant lienor. The failure to file a notice of pendency of action :,; .J^EGHLAIS'tCQ^'vXIE^S. ,., ':127 shall jipt abate the action.as to „an;;^i person Ijable for the paynient of the debt -gpeci^ed in the notice of lien/ w^; [the action may be prosecuted to judgment against such person. The provigioipsof this section in regardi to .coiftinuing liens shall apply tp li^n^jdj[,scharge4 by deposit or by order on ithe filing of an undertaking. Whqreia Ijen is discharged by deposit or, by order, a note of pendency of action shall ^not be filed. (Lien Law, § 17. •>.See B. C. & G. Consolidated Laws.) § 16. Duration of lien for public improvement. , If the lien is for labor done or materials furnished for a public improve- ment, it shall not continue for a longer period than three months from the time of filing the notice of such, ;lie% jyn-JeSs an action is commenced to foreclose such lien within that tinle^ and [a notice of the pendency of such action is filed with the comptroller of' the State or the financial oflBcer of fhe municipal corporation with; whom, ithe notice of, such lien was filed, or unless an order be made by a court of record, fioptinuing such lien, and a new docket be made stating such fact. And: the supreme court of this State, or any justice thereof, or the county court of the county in which Buch lien was filed, or the cOunty judge of such cotinty, are hereby author- ized to make an order continuing any such lien for a period not exceeding eix months, upon the application of a lienor upon such affidavits or evidence as in the opinion of such court or judge shall bQ deemed sufficient. Nothing in this section contained, hpwevier, shall preyei.nt any such court or judge from making a new order continuing such lien in each succeeding six months, if in the discretion of such^court or judge the same shall be dgemed just and equitable. If a liepdrbe made ai party defendant in an action to enforce another lieii, ahd the plaintiff or such defendant has filed a notice of the pendency of the action within the time prescribed in this section, the lien of such "defendant is thereby continued. The provisions of this section in regard to cpntil^uing liens shall apply to liens discharged by deposit or by order oH the filing of an undertaking, but in such cases no redocketing shall he, necessary, but on the original docket an entry shall be made of the continuance by such order. This section is hereby declared to be a remedial statute and is to be construed liberally to secure the beneficial iaterests and purposes thereof. (Lien Law, § 18. See B. C. & G. Con- solidated Laws.) § 17. Discharge of lien generally. A lien other than a lien for labor performed or materials furnished for a public improvemeijt specified in this article, may be discharged as fol- lows: ■ ' ■ '" ; '!;: : c J (!■;': ;j :■. ) : \ 128 CIVIL LAW AND PKACTICE. 1. By the certificate of the lienor, duly acknowledged or proved and filed in the office where the notice of lien is filed, stating that the lien is satisfied and may be discharged. 2. By failure to begin an action to foreclose such lien or to secure an order continuing it, within one year from the time of filing the notice of lien, unless an action be begun within the same period to foreclose a mort- gage or another mechanic's lien upon the same property or any part thereof and a notice of pendency of such action is filed according to law. 3. By order of the court vacating or canceling such lien of recordj for neglect of the lienor to prosecute the same, granted pursuant to section fifty-nine of the Lien Law. 4. Either before or after the beginning of an action by the owner or contractor executing an undertaking with two or more sufficient sureties, who shall be freeholders, to the clerk of the county where the premises are situated, in such sums as the court or a judge or a justice thereof may direct, not less than the amount claimed in the notice of lien conditioned for the payment of any judgment which may be rendered against the property for the enforcement of the lien. The sureties must together justify in at least double the sum named in the undertaking. A copy of the undertaking, with notice that the sureties will justify before the court, or a judge or justice thereof, at the time and place therein mentioned, must be served upon the lienor or his attorney, not less than five days before such time. Upon the approval of the undertaking by the court, judge or justice an order shall be made by such court, judge or justice discharging such lien. The execution of any such bond or undertaking by any fidelity or surety company authorized by the laws of this State to transact business, shall be equivalent to the execution of said bond or undertaking by two sureties ; and where a certificate of solvency has been issued by the super- intendent of insurance under the provisions of section 181 of the Insurance Law, and has not been revoked, no justification or notice thereof shall be necessary and in such case a copy of the undertaking and notice of the application for an order to discharge the lien must be served upon the lienor or his attorney not less than two days before such application for such order is made. Any such company may execute any such bond or undertaking as surety by the hand of its officers, or attorney, duly author- ized thereto by resolution of its board of directors, a certified copy of which resolution, under the seal of said company, shall be filed with each bond or undertaking. If the lienor cannot be found, or does not appear by attorney, such service may be made by leaving a copy of said undertaking and notice at the lienor's place of residence, or if a corporation at its principal place of business within the State as stated in the notice of lien, with a person MECHANICS' LIENS. 129 of suitable age and discretion therein, or if the house of its abode or its place of business is not stated in said notice of lien and is not known, then in such manner as the court may direct. The premises, if any, described in the notice of lien as the lienor's residence or place of business shall be deemed to be his said residence or its place of business for the purposes of said service at the time thereof, unless it is shown affirmatively that the person serving the papers or directing the service had knowledge to the contrary. 5. Upon filing in the office of the clerk of the county where the property is situated, a transcript of a judgment cf a court of competent jurisdiction, together with due proof of service of due notice of entry thereof, showing a final determination of the action in favor of the owner of the property against which the lien was claimed. (Lien Law, § 19. See B. C. & G. Consolidated Laws.) § 18. Discharge of lien by payment of money into court. A lien specified in this article, other than a lien for performing labor or furnishing materials for a public improvement, may be discharged, at any time before an action is commenced to foreclose such lien, by deposit- ing with the county clerk, in whose office the notice of lien is filed, a sum of money equal to the amount claimed in such notice, with interest to the time of such deposit. After such action is commenced the lien may be discharged by a payment into court of such sum of money, as, in the judg- ment of the court or a judge or justice thereof, after at least five days' notice to all the parties to the action, will be sufficient to pay any judgment which may be recovered in such action. Upon any such payment, the county clerk shall forthwith enter upon the lien docket and against the lien for the discharge of which such moneys were paid, the words " discharged by payment." A deposit of money made as prescribed in this section shall be repaid to the party making the deposit, or his successor, upon the dis- charge of the liens against the property pursuant to law. All deposits of money made as provided in this section shall be considered as paid into court and shall be subject to the provisions of the code of civil procedure relative to the payment of money into court and the surrender of such money by order of the court. An order for the surrender of such moneys may be made by any court of record having jurisdiction of the parties and of the subject matter of the proceeding for the foreclosure of the lien for the discharge of which such moneys were deposited. If no action is brought in a court of record to enforce such lien, such ordeo- may be made by any judge of a court of record. (Lien Law, § 20. See B. C. & G. Consolidated Laws.) § 19. Discharge of lien for public improvement. A lien against the amount due or to become due a contractor from the State or a municipal corporation for the construction of a public improve- ment may be discharged as follows: 9 130 CIVIL LAW AND PEACTICE. 1. By filing a certificate of the lienor or his successor in interest, duly acknowledged and proved, stating that the lien is discharged. 2. By lapse of time, when three months have elapsed since filing the notice of lien, and no action has been commenced to enforce the lien. 3. By satisfaction of a judgment rendered in an action to enforce the lien. 4. By the contractor depositing with the comptroller of the State or the financial ofiieer of the municipal corporation, or the officer or person with whom the notice of lien is filed, such a sum of money as is directed by a justice of the supreme court, which shall not be less than the amount claimed by the lienor, with interest thereon for the term of one year from the time of making such deposit, and such additional amount as the justice deems sufficient to cover all costs and expenses. The amount so deposited shall remain with the comptroller or such financial officer or other officer or person until the lien is discharged as prescribed in subdivision one, two or three of this section. 5. Either before or after the beginning of an action by a contractor executing an undertaking with two or more sufficient sureties, who shall be freeholders, to the State or the municipal corporation with which the notice of lien is filed, in such sums as the court or a judge or justice thereof may direct, not less than the amount claimed in the notice of lien, conditioned for the payment of any judgment which may be recovered in an action to enforce the lien. The sureties must together justify in at least double the sum named in the undertaking. A copy of the undertaking with notice that the sureties will justify before the court or a judge or justice thereof at the time and place therein mentioned must be served upon the lienor, not less than five days before such time. If the lienor cannot be found, such service may be made as prescribed in subdivision four of section nineteen of this article. Upon the approval of the undertaking by the court, judge or justice, an order shall be made discharging such lien. The execution of such undertaking by any fidelity or surety company author- ized by the laws of this State to transact business shall be equivalent to the execution of such an undertaking by two sureties, and where a certificate of solvency has been issued by the superintendent of insurance under the pro- visions of section 181 of the Insurance Law and has not been revoked, no justification or notice thereof shall be necessary, and in such case a copy of the undertaking and notice of the application for an order to discharge the lien must be served upon the lienor, or his attorney, not less than two days before such application for such order is made. Any such company may execute such undertaking as surety by the hand of its officers or attorney duly authorized thereto by resolution of its board of directors, a certified MECHANICS' LIENS. 131 copy of whicli resolution under the seal of tlie company, shall be filed with each undertaking. Except as otherwise provided herein the provisions of article five of title six of chapter eight of the code of civil procedure are applicable to an undertaking given for the discharge of a lien on account of public improvements. If the lienor cannot be found or does not appear by attorney then such service may be made as prescribed in subdivision four of section nineteen of this chapter for the service of an undertaking with notice of justification of sureties. (Lien Law, § 21. See B. C. & G. Consolidated Laws.) § 20. Building loan contracts. A contract for a building loan, either with or without the sale of land, and any modification thereof, must be in writing and duly acknowledged, and within ten days after its execution be filed in the office of the clerk of the county in which any part of the land is situated, and the same shall not be filed in the register's oifice of any county. If not so filed the interest of each party to such contract in the real property affected thereby, is subject to the lien and claim of a person who shall thereafter file a notice of lien under this chapter. A modification of such contract shall not affect or impair the right or interest of a person, who, previous to the filing of such modification had furnished or contracted to furnish materials, or had performed or contracted to perform labor for the improvement of real property, but such right or interest shall be determined by the original contract. The county clerk is entitled to a fee of twenty cents for filing such a contract or modification. Such contracts and modifications thereof shall be indexed in a book provided for that purpose, in the alphabetical order of the names of the persons to whom such loans shall be made. No assignment of the moneys due or to become due under a contract for a building loan, under the provisions of section 26 of this article, nor any payment to the holders of such assignment, shall be or be construed to be a modification of a contract for a building loan within the meaning of this section, and the execution and delivery of a bond and mortgage, under the provisions of section 26 of this article, or payments thereunder, shall not be or be construed to be the making of a contract for a building loan within the meaning of this section. (Lien Law, § 22. See B. C. & G. Con- solidated Laws.) § 21. Construction of Lien Lawr. This article is to be construed liberally to secure the beneficial interests and purposes thereof. A substantial compliance with its several provisions 132 CIVIL LAW AND PRACTICE. shall be sufficient for the validity of a lien and to give jurisdiction to the courts to enforce the same. (Lien Law, § 23. See B. C. & G. Consolidated Laws.) § 22, Enforcement of mechanic's lien. The mechanics' liens specified in this article may be enforced against the property specified in the notice of lien and which is subject thereto and against any person liable for the debt upon which the lien is founded, as prescribed in article three of this chapter. (Lien Law, § 24. See B. C. & G. Consolidated Laws.) The procedure for the enforcement of a mechanic's lien, in a court not of record, will be found in a subsequent chapter of this volume. § 23. Priority of liens for public improvements. Persons having liens under contracts for public improvements shall have priority according to the date of filing their respective liens, except as in this article hereinafter provided, but in all cases leborers for daily or weekly wages shall have preference over all other lienors having liens arising under the same contracts pursuant to this article, without reference to the time when such laborers shall have filed their notice of lien. All liens shall have priority over advances made after the filing thereof, upon any assignment of the moneys, or any part thereof, due or to become due under such contract, or upon any order drawn by the contractor for the payment of such moneys, or any part thereof ; but this provision shall not relate to advances made under an assignment to one or more persons or a corporation as trustee or trustees to which approval has been given as pro- vided in section 27 of the Lien Law. (Lien Law, § 25. See B. C. & G. Consolidated Laws.) CHATTEL MOKTGAGES. 133 CHAPTEE IX. CHATTEL MOETGAGES. Section 1. Definition of chattel mortgage. 2. Different from real estate mortgage. 3. Title of parties to chattel mortgages. 4. Chattel mortgages as distinguished from other contracts. 5. Property subject to a chattel mortgage. 6. Property not owned by the mortgagor as the subicct of a chattel mortgage. 7. Form of chattel mortgage. 8. Parties to chattel mortgages. 9. Chattel mortgages by corporations. 10. The debt secured by a mortgage. 11. Description of property. 12. Validity of mortgages. 13. Filing of chattel mortgages in general. 14. Purpose and construction of statute relative to filing. 15. Necessity for filing chattel mortgage. 16. Change of possession in lien of filing. 17. Time of filing mortgage. 18. Place of filing mortgage. 19. Manner of filing. 20. Payment of fees. 21. Effect of failure to file. 22. Transfer of chattels as affecting failure to file mortgage. 23. Refiling of chattel mortgages. 24. Object and construction of statute as to refiling. 25. Necessity of refiling. 26. Time of refiling. 27. Statement of interest of mortgagee on refiling. 28. By whom refiling shall be made, 29. Effect of failure to refile. 30. Change of possession of property in lieu of refiling. 31. Fraudulent chattel mortgages. 32. Who may attack fraudulent mortgage. 33. Eight of mortgagor to transfer mortgaged property, 34. Eight of mortgagee to maintain action for damages. 35. When mortgagor deemed in default. 36. Possession of mortgaged property. 37. Eights of mortgagee under danger clause. 38. Retention by mortgagee of property without foreclosure. 39. Action by mortgagee for possession of property. 40. Action by mortgagee to recover debt. 41. Action by mortgagee for conversion of chattels. 42. Foreclosure by sale of chattels. 43. Ejghts of creditors. 44. Eights of lienors on mortgaged property. 45. Eights of subsequent mortgagee. 46. Assignment of mortgage. 47. Discharge of mortgage. 134 CIVIL LAW AND PEACTICE. § 1. Definition of chattel mortgage. The term " mortgage " is derived from two French words : " mort " meaning dead, and " gage " meaning pledging. (Breese v. Bange, 2 E, D. Smith, 474.) A chattel mortgage is an instrument by which the title to personal chattels is transferred to a mortgagee as security for the payment of a debt, or for the performance of an obligation, with a condition that upon payment or' performance, the title shall revest in the mortgagor; but if the debt is not paid, or the obligation is not performed, the title becomes absolute in law in the mortgagee, though redeemable in equity. (GrifSn & Curtis on Chattel Mortgages, p. 1.) § 2. Different from real estate mortgage. There is a manifest difference between a mortgage of real and a mort- gage of personal property. The former is merely a security for the debt ; the mortgagee has only a chattel interest, and the freehold remains in the mortgagor. A chattel mortgage, however, is more than a mere lien or security. By the latter the legal title to the property is transferred, subject to be defeated by the payment of the mortgage debt. (Butler v. Miller, 1 N, Y. 490 ; Griffin & Curtis on Chattel Mortgages, p. 2.) § 3. Title of parties to chattel mortgages. Before default in the condition of a chattel mortgage, the legal title to the mortgage chattels is in the mortgagee. But his title is conditional and liable to be defeated by a performance of the conditions. On such perform- ance the title revests in the mortgagor the same as before the execution of the instrument. (Bank of Rochester v. Jones, 4 N. Y. 497 ; Blealiey v. Sullivan, 140 N. Y. 175; Griffin & Curtis on Chattel Mortgages, p. 3.) But while this is so technically and theoretically, yet practically, the sub- stantial title remains in the mortgagor with all the incidents of a legal title. He retains the use, control and benefit of the property subject to the mortgage. Upon default in the payment of a chattel mortgage, by operation of law, the title of the mortgagee to the mortgaged property becomes absolute, and the mortgagor has no interest therein except the right to redeem — a mere right of action — enforceable only in a court of equity. (Bragelman v. Dane, 69 IST. Y. 69; Casserly v. Witherbee, 119 IST. Y. 522.) It is not necessary that a chattel mortgage declare that the defeasible title of the mortgagee will become absolute on the failure of the mortgagor to pay the sum when it becomes due ; this result follows as an incident to the relation of the parties. (Bragelman v. Dane, 69 IST. Y. 69.) A mortgagee, upon default, becomes the general owner of the mortgaged property ; and, as far CHATTEL MOETGAGES. 135 as the legal rights of the parties are concerned, he may treat the property as his own and squander, destroy, or give it away. The mortgagee, by selling the property, transfers to the purchaser a good legal title. The mortgagor, if permitted to retain possession of the property, holds merely as a bailee for the mortgagee. (GriiEn & Curtis on Chattel Mortgages, p. 5.) § 4. Chattel mortgages as distinguished from other contracts. The characteristic which distinguishes a chattel mortgage from other conveyances is the condition that, if the debt is paid at the day specified, the conveyance is void, but, if payment is not so made, the transfer becomes absolute at law. (Parshall v. Eggari, 52 Barb. 367 ; Grifiin & Curtis on Chattel Mortgages, p. 6.) The instrument need not, in express terms, state that the mortgagee may take the goods. Nor need the mortgagor promise to pay the debt secured, or be liable for its payment. {Matthews V. Sheehan, 69 N. Y. 585;Bla]ce v. Corbett, 120 N. Y. 327.) A chattel mortgage is distinguished from a sale by reason of the condi- tion that the title of the property shall revest in the mortgagor upon pay- ment being made according to the terms of the contract. {Gore v. Glover, 49 Misc. 473, 97 W. Y. Supp. 969.) If a conveyance is taken as security it is a mortgage or pledge, but if taken in payment or part payment, thus extinguishing the debt, in whole or in part, it is a sale. {Keller v. Paine, 34 Hun, 167.) A bill of sale, absolute on its face, but accompanied by an agreement, in writing or by parol, operating a a defeasance, in a mere mort- gage. {Smith V. Beattie, 31 N. Y. 542; Sheldon v. McFee, 216 IST. Y. 618; Griffin & Curtis on Chattel Mortgages, pp. 7, 8.) A bill of sale, absolute upon its face, may be shown by parol evidence to be only a mort- gage. {Coe V. Cassidy, 72 IST. Y. 133, Barry v. Colville, 129 IST. Y. 302 ; Donnelly v. McArdle, 86 App.Div. 33, 83 K Y. Supp. 193; Griffin & Curtis on Chattel Mortgages, p. 10.) No matter what the form of the instrument is, if intended merely as security, it may be shown to be a mortgage and must be so treated. The mortgagor need not show fraud or mistake in the transaction. He may have the bill of sale adjudged to be a chattel mortgage, though he claims he did not know at the time he signed it that it was absolute in form. {Donnelly v. McArdle, 86 App, Div. 33, 83 ]Sr. Y. Supp. 193.) Even if the mortgagor concedes that he intended' to execute an instrument absolute in form, if it was understood between the parties that the bill of sale was to be held only as security, the mort- gagor may have such relief. He should, however, explain satisfactorily why the instrument was drawn in the form of an absolute sale. A chattel mortgage, however, cannot operate as an absolute sale. The mortgagor's 136 CIVIL LAW AND PEACTICE. equity of redemption is zealously guarded by the courts and no agreement in a mortgage will be allowed to change it into an absolute conveyance upon any condition or event. There is no exception to the rule, " once a mortgage, and always a mortgage." (Clark v. Henry, 2 Cow. 324; GriflSn & Curtis on Chattel Mortgages, p. 11.) A chattel mortgage is distinguished from conditional sale, sometimes easily, but sometimes with great difficulty. In fact, a chattel mortgage is one kind of a conditional sale, the condition being that title to the property shall revest in the mortgagor upon payment of the debt secured thereby. In common commercial transactions the purchase price of an article sold is secured in either of two ways : first, by a conditional sale through which the title is reserved in the vendor until the purchase price is paid; and, second, by a chattel mortgage given back by the purchaser. While the object to be accomplished by either form of security is substantially the same, the rights of the parties under the two forms of security are materi- ally different. (Tweedie v. Clarh, 114 App. Div. 296, 99 IST. Y.. Supp. 856.) Upon the execution of the conditional sale of this class, the vendee has no title to the property, but, if the instrument is to be construed as a chattel mortgage, it is necessary that title should have passed from the mortgagor, who, by the instrument, vests the legal title in the mortgagee, subject to the usual rights of the mortgagor. The instrument may be a conditional sale though it contains a clause that the vendor, in case of default in payment by the vendee, may take and sell the property and apply the proceeds to the balance unpaid, paying the surplus, if any, to the vendee. (Brewster v. Baher, 20 Barb. 364.) It is sometimes difficult to determine whether a transaction constitutes a mortgage or an absolute sale and a conditional resale ; and whether it shall be construed to be one or the other depends upon the intention of the parties as evidenced by the instru- ment executed, and all the circumstances of the case. In all doubtful cases a contract will be construed to be a mortgage rather than a conditional sale, because, in the case of a mortgage, the mortgagor, although he has not strictly complied with the terms of the mortgage, still has his right of redemption; while in the case of a conditional sale, without strict com- pliance, certain rights of the conditional purchaser are forfeited. (Matthews V. Sheehan, 69 N. Y. 585.) No general rule to distinguish the trans- actions can be laid down. The fact that there is no debt which can be personally enforced is a strong but not an absolutely controlling circum- stance that the transaction is not a mortgage. (Matthews v. Sheehan. 69 N. Y, 585.) The relative value of the property and the price actually advanced or paid are to be taken into consideration to determine the intent CHATTEL MOETGAGES. 137 of the parties. {RoUnson v. Cropsey, 6 Paige, 480 ; Griffin & Curtis on Chattel Mortgages, pp. 11-15.) In distinguishing a chattel mortgage from a pledge, there are two vital considerations which are of aid. First, in a chattel mortgage, the legal title to the mortgaged property is transferred, but in a pledge the legal title is not generally thus transferred, the pledgee taking merely the right to retain the property as security for the indebtedness. {Wilson v. Little, 2 N. Y. 443.) Second, in a chattel mortgage, the possession of the prop- erty may or may not be in the mortgagee, but, to construe the transaction as a pledge, it is essential that the pledgee have possession. {People v. E. Remington & Sons, 59 Hun, 282, 12 N. Y. Supp. 824, affd., 126 N. Y. 654; Griffin & Curtis on Chattel Mortgages, p. 16.) But these two dis- tinctions do not conclusively dispose of the question whether a particular instrument is a mortgage or a pledge. In the case of a pledge, at least of intangible property, the title may pass to the pledgee. {Wilson v. Little, 2 N. Y. 443.) The test of possession is useful only when possession is retained ; when the possession accompanies the instrument it may be either a mortgage or a pledge. {Huntington v. Mather, 2 Barb. 538.) The mere use of the word " pledge " does not, of itself, determine that the instrument is a pledge. {Langdon v. Buel, 9 Wend. 80.) But where the word " pledge " is used and the possession of the property is transferred, the instrument will generally be deemed a pledge. {Haskins v. Paiterson, 1 Edm. Sel. Cas. 120.) Where stocks, bonds, mortgages, or other valuable choses in action are transferred by a debtor to his creditor, as security for a debt, the transaction is generally a pledge. {Wilson v. Little, 2 N. Y. 443 ; Wlieeler v. Newbould, 16 N. Y. 392.) But a chose in action may be the subject of a mortgage and where. the legal title thereto is transferred subject to the right of the debtor to pay the debt and redeem, the trans- action may be a mortgage. {King v. Van Vlech, 40 Hun, 68, affd., 109 N. Y. 363.) A chattel mortgage is generally easily distinguished from an agreement to give a mortgage. Where property is delivered to vendees thereof under an agreement that- they shall give the vendor a chattel mortgage thereon to secure the purchase price thereof, such arrangement gives the vendor an equitable lien upon the property, though the demand for the chattel mort- gage is not made until sometime after the delivery of the property. Such equitable lien is enforceable against the vendees and persons claiming under them, not hona fide purchasers. But the failure of the vendors to demand the mortgage upon the delivery of the property, leaves the legal title thereto in the vendee ; and the vendor cannot recover the same in an action at law, but must resort to a suit in equity. {Busted v. Ingraham, 138 CIVIL LAW AND PKACTICE. 75 N. Y. 251.) But, if a contract to give a mortgage is not fulfilled, it is not enforceable as an equitable lien as against third parties where the mort- gage, if executed but not filed, would be void as against such parties. (Bell V. New York Safety Steam Power Co., 183 Fed. 274; Grifiin & Curtis on Chattel Mortgages, p. 20.) The material and essential characteristic of a general assignment is the presence of a trust. The assignee is merely a trustee ?nd not an absolute owner. He buys nothing and pays nothing, but takes the title for the performance of trust duties. (Brown v. Guthrie^ 110 N. Y. 436.) A general assignment is distinguished from a chattel mortgage upon the further ground that the former covers all the property of the assignor. An assignment by a debtor of all his property in trust for the benefit of a particular class of creditors, reserving the surplus to himself is fraudulent and void, but this principle does not apply where the assignment is to creditors for the purpose of securing their demands. Such a transfer, whatever may be its form, is in legal effect only a mortgage. (Leitch v. Ilollister, 4 N. Y. 211 ; Dunham v. Whitehead, 21 N. Y. 131.) By statutory enactment, a transfer of personal property, in trust for the use of the person making it, is void as against existing or subsequent credi- tors of such person. (Personal Property Law, § 34.) Where the assign- ment is made to the creditors themselves for the purpose of securing their particular demands, though the surplus of the property after the satis- faction of their demands is to be rendered to the assignor, the instrument is in legal effect only a chattel mortgage and is not vitiated by such statute, (Delany v. Valentine, 154 K", Y. 692.) An assignment by a debtor of his property to his creditor, in trust to sell and pay his own debt, reserving the surplus to the debtor or his assignees, is in effect a mortgage, and where the debt which it is designed to secure is paid, the property reverts to the orig- inal owner. (McClelland v. Remsen, 36 Barb. 622, 14 Abb. Pr. 331, 23 How. Pr. 175, affd., 3 Abb. Dec. 74; Griffin & Curtis on Chattel Mort- gages, p. 21.) It is sometimes important to distinguish a chattel mortgage from a clause in the lease reserving the lien upon property. A clause in a lease reserving to the landlord, as security for rent, a lien upon property brought or crops grown upon the demised premises is not, strictly speaking, a chattel mort- gage. (Streeter v. Ward, 12 St. Eep. 333 ; Milliman v. Neher, 20 Barb. 37.) Upon the execution of a lease providing that the lessor shall have a lien upon the crops which may be enforced by the taking and selling of such property, the title to the crops is not thereby transferred to the land- lord as title is transferred to a chattel mortgage. The landlord does not acquire title until possession is taken or the instrument foreclosed. While CHATTEL MOETGAGES. 139 such an instrument does not pass title to property not in existence or not yet acquired at law, it gives the lessor a license to seize the title and prop- erty thereto passes upon seizure; in equity, the beneficial interest to the property is transferred, and, upon its acquisition or coming into existence, title is transferred without the intervention of any new act. {McCaffrey V. Woodin, 65 ]^. Y. 459 ; Wismer v. Ocumbaugh, 71 N. Y. 113 ; Reynolds V. Ellis, 103 N. Y. 115.) Thus, if the lease is duly filed as a chattel mort- gage, a subsequent purchaser, without knowledge of the provision in the lease, takes title subject to the landlord's claim, {Smith v. Taber, 46 Hun, 313, 14 St. Rep. 644.) A lease reserving such a lien, however, operates as a chattel mortgage and is required to be filed as against creditors, etc. {Duff us V. Bangs, 122 N". Y. 423.) The reserved lien is valid and enforceable between the parties, but, if not filed, is void as to creditors or subsequent purchasers or mortgagees in good faith. A lease may contain a provision that the ownership of crops shall remain in the landlord until the tenant pays the rent or gives security therefor. Under such a contract, the title to the crops vests in the landlord as soon as they come into exist- ence. The only interest the tenant has is the right to acquire the property when he performs the conditions ; such an interest is not subject to execu- tion though it may be reached by creditors in an equitable proceeding. {Andrew v. Newcomb, 32 N. Y. 417.) § 5. Property subject to a chattel mortgage. The statutory provisions concerning chattel mortgages relate to mort- gages on " goods and chattels." The term " chattels," as used in the statute, refers to things that can be used, handled and transported, as horses, carriages, furniture, machinery, tools, and the numberless objects to be seen about us in everyday life, the value of which is in the possession of the thing itself. But the application of the statute to goods and chattels does not forbid the transfer of other kinds of personal property, such as ehoses in action, by way of mortgage. In fact, a mortgage of the latter may be a more effective security to the mortgagee, for the filing thereof is not required. {Niles v. Mathusa, 162 IST. Y. 546.) Thus a valid mortgage has been made of a contract, and insurance policy, a mortgage, a lease, and of a copyright. Choses in action do not pass under the general words in a conveyance. Where a chose in action is delivered to a creditor as security for a debt, the transaction is generally a pledge, not a mortgage. A chattel mortgage upon nursery stock works a severance of the stock from the real estate and after default the absolute title vests in the mort- gagee, who becomes entitled to enter upon the property and remove it with as little injury to the owner of the realty as possible. {Duffus v. Bangs, 140 CIVIL LAW AND PKACTICE. 43 Hun, 52, affd,, 122 If. Y. 423.) But, it seems, that a mortgage upon growing trees does not work such a severance until default. {Bank of Lansinghurgh v. Crary, 1 Barb. 542.) Whether property upon which a chattel mortgage is given is personalty and thus subject to such a mortgage, or whether it is so annexed to the realty as to be subject only to a real estate mortgage, often presents a difficult question. Where a mortgage is given upon chattels prior to their annexation to the realty, they generally retain their character as personal property, such being deemed the intention of the parties. (Sisson v. Hiblard, 75 N. Y. 542 ; Kinsey v. Bailey, 9 Hun, 452.) But it has been held that chattels may be so annexed to the realty that they lose their character as personalty. In such a case the remedy of the mortgagee is against the person who wrongfully converts the property into realty. {Voorhees v. McGinnis, 48 K Y. 282.) The rolling stock of a railroad is not a part of its realty, but retains its character as personal property, and may be the subject of a chattel mort- gage. (Iloyle V. Plattshurgh & Montreal B. Co., 54 N. Y. 314.) A lease of real estate for a term of years is termed a " chattel real." (Real Prop- erty Law, § 33.) It is personal property but is not a " chattel " within the meaning of the statutes relating to the filing of chattel mortgages and a mortgage thereof is not, therefore, required to be filed. (Matter of Fulton, 153 Ted. 664; State Trust Co. v. Casino Co., 19 App. Div. 344, 46 N. Y. Supp. 492.) A mortgage upon a vested interest in personal property, not reducible to possession until the death of the third party, is valid as an equitable mortgage ; but such a mortgage need not be filed as a chattel mortgage. (Tilden v. Tilden, 26 Misc. 672, 57 IST. Y. Supp. 864; Griffin & Curtis on Chattel Mortgages, p. 37.) § 6. Property not ovwied by the mortgagor as the subject of a chattel mortgage. It is essential to the validity of a chattel mortgage that the mortgagor has some interest in the property he assumes to thus transfer. (National Bank of Deposit v. Bogers, 166 IST. Y. 380.) But a mortgagor may agree to mortgage property not then owned or to give a lien on it as soon as he gets it, and equity will enforce the agreement and establish the lien. • Although a thief can acquire no title to property stolen, a person in possession of chattels, though he acquired his possession by a fraudulent purchase, may give a good title thereto to a bona fide mortgagee. The title of such a mortgagor is not void, but voidable, and is good until avoided by the person defrauded. (Lembech^ etc.. Brewing Co. v. Sexton, 184 N. Y. CHATTEL MORTGAGES. 141 185.) Where, however, the mortgage is given to hinder, delay, and defraud the creditors of the mortgagor, or to secure an existing indebtedness, the mortgagee is not entitled to the rights of a hona fide mortgagee, and his rights are inferior to those of the original vendor who has exercised his option to avoid the sale. In an action by the original vendor to recover the value of the property, he is entitled, even as against the mortgagee, to rest upon proving the fraud in the original purchase, and the burden is upon the latter to prove that the mortgage was taken in good faith. (Moyer v. Bloomingdale, 38 App. Div. 227, 56 N. Y. Supp. 991.) A mortgage of property to be subsequently acquired is not effective in passing the title of such property to the mortgagee. (Gardner v. McEwen, 19 ]Sr, Y. 123 J McNeeley v. Welz, 166 N. Y. 124; Titusville Iron Com- pany V, City of New York, 207 ^. Y. 203 ; Denier v. Bonewur, 134 App. Div. 577, 119 ]Sr. Y. Supp. 313; Griffin & Curtis on Chattel Mortgages, p. 28.) Such a mortgage may, however, be construed as an agreement to give a mortgage on such property when acquired and may thus operate as an equitable lien thereon. (Wismer v. Ocumpaugli, 71 N. Y. 113 ; Krihbs V. Alford, 120 IST. Y. 519 ; McNelley v. Welz, 166 K Y. 124.) At law the mortgagee has no title to the property but has a license to seize the property when it is acquired by the mortgagor. Upon such seizure, title passes to the mortgagee. A chattel mortgage requires a subject in esse, and, at law, conveys no title to the mortgagee when given upon property not owned, either actually or potentially, by the mortgagor. (Edgell v. Hart, 9 JST. Y. 213 ; Mc- Caffrey V. Woodin, 65 K Y. 459; Hart v. Taylor, 82 K Y. 373.) But when the property comes into existence and in the ownership of the mort- gagor, in equity such a mortgage will operate as an equitable lien. (Deeley V, Dwight, 132 N, Y. 59 ; Rochester Distilling Co. v. Basey, 142 N. Y. 570.) And, at law, the mortgage gives the mortgagee a license to seize the property and title passes to the mortgagee upon such seizure. (McCaffrey V. Woodin, 65 N. Y. 459.) 'No legal lien is created by a mortgage upon property not in existence ; the lien is purely equitable. Upon default, the mortgagee does not become the legal owner of the property. To obtain a title, good as against third parties, he must seize the property or foreclose his equitable lien. (Denier v. Bonewur, 134 App. Div. 577, 119 K Y. Supp. 313.) A mortgage of property to be manufactured does not of itself pass title to such property or create a legal lien thereon. (Hart v. Taylor, 82 N. Y. 373 ; Griffin & Curtis on Chattel Mortgages, p. 30.) Property to be the subject of a mortgage need not actually exist in the possession of the mortgagor; it is sufficient if it potentially exists, and, when the property changes from the potential to an actual existence, the 142 CIVIL LAW AND PKACTICE. title thereto passes to the mortgagee. A person owns property " potentially " when it is the ordinary increase or growth of other properties which he has ; as fruit or grass from his farm, milk from his cow, wool from his sheep, wine from his vineyard, or the future offspring from a female animal. (Page v, Larrowe, 22 JST. Y. Supp. 1099, 51 St. Eep. 35 ; Farmers' L. c6 T. Co. V. Long Beach Improvement Co., 27 Hun, 89 ; Craves Elevator Co.. V. Callanan, 11 App. Div. 301, 42 IST. Y, Supp. 930.) Thus, the owner or tenant of a farm may mortgage the dairy products to be produced therefrom. (Betsinger v. Schuyler, 46 Hun, 349.) Property is not potentially owned where the mortgagor has no possession of or interest in the agent of its production. A mortgage of the earnings of a mariner of new and distinct adventures, not begun or contemplated, does not give the assignee the legal title thereto or a legal lien thereon. {Cooper v. Doug- lass, 44 Barb. 409.) Crops not yet grown, but which grow spontaneously, the roots thereof being in the soil when the mortgage is given, are held to have a potential existence and they may be mortgaged. {Jenhs v. Smith, 1 K Y. 90 ; McCaffrey v. Woodin, 65 N. Y. 459 ; Rochester- Distilling Co. V. Rasey, 65 Hun, 512, 20 K Y. Supp. 583, affd., 142 K Y. 570; Fleetham v. Reddick, 82 Hun, 390, 31 N. Y. Supp. 342 ; Griffin & Curtis on Chattel Mortgages, p. 32. ) Hay is a perennial crop which has a potential existence. (Nestell v. Hewitt, 19 Abb. N". C. 282.) But a crop which is to be planted and raised in the future has no potential existence and is not the subject of a mortgage. (Rochester Distilling Co. v. Rasey, 142 E". Y. 570 ; Fleetham v. Reddich, 82 Hun, 390, 31 N. Y. Supp. 342.) However, where a landlord reserves, in a lease of a farm, a lien upon or title to grow- ing crops as security for the rent, though such crops are not planted at the time of the execution of the lease, the legal title to the crops rests in the landlord when they come into actual existence. {Andrew v. Newcomb, 32 N. Y. 417 ; Booher v. Stewart, 75 Hun, 214, 27 JST. Y. Supp. 114.) Where a lessee, after the execution of a lease, of a farm, but before the commencement of his term, gave a mortgage on grass to be cut therefrom during the term, it was held the lessee had no potential ownership in the grass and the mortgage was not valid. (Page v. Larrowe, 22 N. Y. Supp. 1099, 51 St. Eep. 35.) A mortgage upon a nonexisting or after-acquired property, while not effective as a mortgage, operates, in some cases, as an; equitable lien. Where one of the lessees of premises executed a mortgage upon his interest in the lease and property to be placed on the premises, and thereafter the lessees transferred to another their rights under the lease, it was held that the mortgage operated as an equitable lien upon property subsequently placed upon the premises by such lessees and that such lien was effective CHATTEL MOBTGAGES. 143 as against the transferees who had constructive knowledge thereof, but that such lien did not cover property subsequently placed on the premises by the transferees. (Kribbs v. Alford, 120 JST. Y. 519.) Such an equitable lien may be foreclosed by a suit in equity, but a justice's court has no jurisdiction of such a suit. An equitable lien in the absence of fraud, is valid as between the parties and third persons with knowledge thereof. (Griffin & Curtis on Chattel Mortgages, p. 35.) But, until the mortgagee seizes the property or does some act to make his lien effective, it is invalid as against creditors, or purchasers or mortgagees in good faith. (Rochester Distilling Co. v. Easey, 142 N. Y. 570; Titusville Iron Co. V. City of New York, 207 N. Y. 203.) To be effective as against a subsequent purchaser or mortgagee, it is not essential that he have actual knowledge thereof; constructive notice, such as given by the proper filing of the mortgage, is sufficient. (Kribbs v. Alford, 120 N^. Y. !S1%.) The mortgage, if filed, is notice, though a search in the clerk's office fails to inform the searcher thereof. A mortgage operating as an equitable lien is superior to a second mortgage expressly subject to the prior mortgage. (Stevens v. Watson, 4 Abb. Dec. 302.) § 7. Form of chattel mortgage. 1^0 particular form is required to constitute a valid chattel mortgage. (McCaffrey v. Woodin, 65 N. Y. 459; Fitzgerald v. Atlanta Home Ins. Co., 61 App. Div. 350, 70 N. Y. Supp. 552.) An instrument in the form of a real estate mortgage, including- therein personal property, is deemed a chattel mortgage as to the personalty. (Fitzgerald v. Atlanta Home Ins. Co., 61 App. Div. 350, 70 N. Y. Supp. 552.) At common law, a verbal mortgage of chattels was valid though the mortgagor retained possession of the mortgaged property, the retention of possession, however, being considered a badge of fraud. (Terwilliger v. Ontario, Carbondale, etc., R. Co., 149 N. Y. 86.) As a mortgage is a sale upon condition it may be affected by the Statute of Erauds, if not in writing. An oral mort- gage may also be affected by the statutes requiring the filing of mort- gages. (Ceas V. Bramley, 18 Hun, 187.) But, in many instances, mortgages are effective though not filed, and a mortgage of property less than $50 is not avoided by the Statute of Frauds. Even where the value of property exceeds $50, if the mortgagee takes possession of the property, both the Statute of Frauds and the requirement of filing are' satisfied and a verbal mortgage, under such circumstances is valid. (Bank of Rochester V. Jones, 4 K Y. 497; Bardwell v. Roberts, 66 Barb. 433; Griffin & Gurtis on Chattel Mortgages, p. 40.) 144 CIVIL LAW AND PEACTICE. § 8. Parties to chattel mortgages. All parties who are legally competent to make other valid contracts, may make chattel mortgages. It is usual in a chattel mortgage to describe the parties by name and residence. The place of residence of the mortgagor controls the place of filing the mortgage, but the recital in the mortgage of his residence is of no importance. His correct residence may be shown when the filing of the mortgage is questioned. {Chandler v. Bunn, Hill & D., Supp. 167.) The insertion in the body of a chattel mortgage, through the mistake of the scriviner, of the name of one person, as mort- gagee, instead of another, as was intended by the parties, does not affect the validity of the mortgage as between the mortgagor and the person actually intended. {Croft v. Brandow, 61 App. Div. 247, 70 IST. T. Supp. 364.) A chattel mortgage executed by an infant upon personal property owned by him is voidable, not void. He may, at his option, avoid the same at any time before he becomes of age or within a reasonable time thereafter. This result is accomplished by any act which manifests such a purpose, such as an unconditional sale and delivery of the property to a third person. {Chapin v. Shafer, 49 N. Y. 407.) Thus, where an infant executes a chattel mortgage upon a chattel owned by him and on the same day sells and delivers the property to a purchaser, the title of the purchaser is superior to that of the mortgagee, unless the sale is also avoided by the infant. (Griffin & Curtis on Chattel Mortgages, p. 41.) One of two or more partners may, in the absence of fraud, execute a chattel mortgage upon firm property for the payment of a firm debt. {MaUett v. White, 12 N. Y. 454; Schwarzscheld & S. Co. v. Matthews, 39 App. Div. 477, 57 N. Y. Supp. 338.) But it seems that a mortgage given by one partner after dissolution does not transfer the legal title to the firm property. {Husted v. Ingraham, 75 N. Y. 251.) Where a mortgage is given by a partnership to secure future advances, it does not secure advances made after the dissolution of the partnership to the successors thereof. {Monnot v. Ihett, 33 Barb. 24.) One of two or more joint owners of personal property may mortgage his interest therein without the consent, concurrence or knowledge of the other. {Harris v. Wessels, 5 Hun, 645.) Where the mortgagee of the interest of one tenant in common causes the whole chattel to be sold by virtue of his mortgage, one who purchases and takes possession of the chattel at such sale, with notice of the rights of the other tenant' in common thereof, is liable to the latter for the conversion of his interests therein. {Van Doren v. Baity, 11 Hun, 239.) Upon default in a chattel mortgage given to several mortgagees to CHATTEL MORTGAGES. 145 secure the payment of several debts, the mortgagees become tenants in common of the property. One of such tenants has no right to sell the entire property. {Tyler v. Taylor, 8 Barb. 585.) Where the joint mort- gagees are not partners, one cannot make any agreement with the mort- gagor which will affect the rights of the other. (GriflSn & Curtis on Chattel Mortgages, p. 42.) § 9. Chattel mortgages by corporations. Section 6 of the Stock Corporation Law provides for mortgages given by stock corporations. Such statute applies to chattel as well as real estate mortgages. {New YorJc Security & Trust Co. v. Saratoga Gas & Light Co., 88 Hun, 569, 34 N. T. Supp. 890.) Its provisions in part are as follows : " In addition to the powers conferred by the general corpora- tion law, every stock corporation shall have the power to borrow money and contract debts, when necessary for the transaction of its business, or for the exercise of its corporate rights, privileges or franchises, or for any other lawful purpose of its incorporation ; and it may issue and dispose of its obligations for any amount so borrowed, and may mortgage its prop- erty and franchises to secure the payment of such obligations, or of any debt contracted for said purposes. Every such mortgage, except purchase money mortgages and mortgages authorized by contracts made prior to May first, eighteen hundred and ninety-one, shall be consented to by the holders of not less than two-thirds of the capital stock of the corporation, or, if the corporation is authorized to issue shares without nominal or par value, then by the holders of two-thirds of the total number of shares issued and outstanding, which consent shall be given either in writing or by vote at a special meeting of the stockholders called for that purpose, upon the same notice as that required for the annual meetings of the corporation ; and a certificate under the seal of the corporation that such consent was given by the stockholders in writing, or that it was given by a vote at a meeting as aforesaid, shall be subscribed and acknowledged by the presi- dent or a vice-president and by the secretary or an assistant secretary of the corporation, and shall be filed and recorded in the ofiice of the clerk or register of the county wherein the corporation has its principal place of business. A consent to mortgage the real and personal property of a stock corpo- ration does not authorize a mortgage of its corporate franchise. Where, however, the realty and personality of a corporation are mortgaged, to- gether with its franchise, though consent has not been procured as to the franchise, the mortgage will be deemed valid as to the real and personal property as to which the consent was given, but inoperative as to the mort- 146 CIVIL LAW AND PEACTICE. gage of the franchise. (Lord v. Yonkers Fuel Gas Co., 99 N. Y. 551.) The consent of stockholders is not required for a purchase money mort- gage. (Clement v. Congress Hall, 72 Misc. 519, 132 IST. Y. Supp. 16.) A mortgage upon corporate chattels, not executed in conformity with section 6 of the Stock Corporation Law, is invalid. This section seems to have heen enacted primarily for the benefit of the stockholders. (See Matter of New York Economical Printing Co., 110 Fed. 514.) But in order to tak« advantage of the invalidity of the mortgage it is not neces- sary that objection should be raised by a stockholder or creditor; the defense is available to the corporation itself. The corporation is not estopped from asserting the defense on the theory that it cannot take advantage of its own wrong, or because it did not offer to return the con- sideration for the mortgage, where it does not appear that any considera- tion whatever was received by it. (London Realty Co. v. Coleman Stable Co., 140 App. Div. 495, 125 IST. Y. Supp. 410.) A general creditor of the corporation cannot attack a chattel mortgage executed by it on the ground that it was not executed as required by the statute. (Clover v. Elirlich, 62 Misc. 245, 114 K Y. Supp. 992.) A domestic stock corporation which is insolvent is prohibited by section 66 of the Stock Corporation Law from executing a mortgage with intent thereby to give a preference. This statute applies to domestic, not to foreign corporations. (Coats v. Donnell, 94 N. Y. 164.) Subject to certain limitations and requirements, every railroad corpo- ration has power, " From time to time to borrow such sums of money as may be necessary for completing or finishing or operating or improving its railroad, or any other of its lawful purposes and to issue and dispose of its bonds for any amount so borrowed, and to mortgage its property and franchises to secure the payment of any debts contracted by the com- pany for the purposes aforesaid, notwithstanding any limitation on such power contained in any general or special law. But no mortgage, except purchase money mortgages, shall be issued by any railroad corporation under this chapter or any other law vdthout the consent of the public service commission, and the consent of the stockholders owning at least two-thirds of the stock of the corporation, which consent shall be in writ- ing, and shall be given and certified and be filed and recorded in the office of the clerk or register of the county where it has its principal place of business, as provided in section 6 of the stock corporation law ; or else the consent of the public service commission and the consent by their votes of stockholders ovraing at least two-thirds of the stock of the corporation which is represented and voted upon in person or by proxy at a meeting CHATTEL MOETGAGES. 147 called for that purpose upon a notice stating the time, place and object of the meeting, served at least three weeks previously upon each stock- holder personally, or mailed to him at his post-office address, and also published at least once a week for three weeks successively in some news- paper printed in the city, town or county where such corporation has its principal office:, and a certificate of the vote at such meeting shall be signed and sworn to and shall be filed and recorded as provided by sec- tion 6 of the stock corporation law. When authorized by the stockholders' consent to any bonds made or issued under this section, the directors, under such regulations as they may adopt, may confer on the holder of any such bonds the right to convert the principal thereof, after two and not more than twelve years from the date of the bond, into stock of the corporation at a price fixed by the board of directors, which may be either par or a price not less than the market value thereof at the date of such consent to such bonds ; and if the capital stock shall not be -sufficient to meet the conversion when made, the board of directors shall authorize an increase of capital stock sufficient for that purpose." (Eailroad Law, § 8, subd. 10.) A mortgage given under this statute covers after acquired property. (Piatt V. New York & Sea Beach B. Co., 9 App. Div. 87, 41 N. T. Supp. 42.) Though a railroad company may have exceeded its powers in purchasing canal boats, it cannot defeat the title of its mortgage, on the ground that the purchase was ultra vires j nor can the mortgagee, who has sold the boats under the mortgage, excuse himself from crediting the proceeds, on that ground. (Parish v. Wheeler, 22 N. Y. 494.) § 10. The debt secured by a mortgage. The debt secured by a chattel mortgage is the principal subject of the transaction; the mortgage is but an incident thereto deriving its whole legal effect from the existence of the debt. (Thompson v. Van Vechten, 27 N. Y. 568.) While there must be some consideration for a chattel mortgage, it is not essential that a debt exist independently of the mort- gage. The parties may confine the remedy of the mortgagee strictly to the mortgage. (Matthews v. Sheehan, 69 N. Y. 585 ; Blake v. Corbett, 120 IST. Y. 327.) The debt may be owed by one person and the mortgage given by another. (Blake v. Corhett, 120 N. Y. 327.) A chattel mort- gage need not be given for a definite sum, but may merely secure the Indebtedness of a third person " now owning." (Blake v. Corbett, 120 K Y. 327.) 148 CIVIL LAW AND PKACTICE. A mortgage given to secure future advances is not fraudulent or void., (Brown v. Outtrie, 110 IST. Y, 435.) It is valid though not operative, as a general rule, until the advances are made. In the meantime the prop- erty is exposed to the claims of third parties. {Brown v. Outhrie, 110 N. Y. 435.) Frequently mortgages are given to secure both a present, indebtedness and advances to be subsequently made. Such a mortgage is not fraudulent and may be enforced for the amount actually due. {Miller v. Loclcwood, 32 K. Y. 293.) When free from fraud, it is valid, not only as between the parties, but as against creditors and other third parties. {Brown v. Kiefer, 71 N. Y. 410.) But it is valid only to the extent of advances made in good, faith before a creditor or other third party acquires a subsequent title to or lien upon the property. (Carpenter V. Blate, 1 E. D. Smith 491 ; Griffin & Curtis on Chattel Mortgages, p. 48.) A mortgage is not necessarily fraudulent and void because the indebted; ness is overstated. The mortgage is good for the amount actually due unless there is actual fraud in the transaction. (Miller v. Loclcwood, 32 ISr. Y. 293; Frost v. Warren, 42 N. Y. 204; Marsden v. Cornell, 62 N. Y. 215.) But it is always advisable to state fairly and plainly the true con- sideration of the mortgage, for a failure to do so renders the mortgage open to suspicion. If the parties are guilty of fraud the mortgage is not valid, even to the extent of the just indebtedness. (Levy v. Hamilton, 68 App. Div. 277, 74 N. Y. Supp. 159.) , Between the parties to a chattel mortgage, it generally cannot be varied or contradicted by parol evidence. If a mistake has been made in the mortgage as to the indebtedness of the mortgagor, the remedy is a reforma- tion in a court of equity. Parol evidence is admissible, in some cases, as where the mortgage is ambiguous. (Dodge v. Potter, 18 Barb. 193.) § 11. Description of property. Considerable care must be observed in correctly describing the chattels covered by a mortgage. Only such property as is mentioned in the mort- gage is transferred thereby. Property to be subsequently acquired or produced by the mortgagor will not be subject to the mortgage unless the mortgage refers to such property. (Van Vechten v. McKone, 69 Hun, 510, 23 K Y. Supp. 428.) As a general rule, the description will suffice if it enables third persons to identify the property when aided by the inquiries which the mortgage indicates. (Kemp v. Condey, 3 Duer, 1.) A mortgage and a schedule accompanying the same are to be read together, though, it may be that, if there is an actual conflict between the body of the mortgage and an annexed schedule, the mortgage will control. (Edgell v. Hart, 9 N. Y. 213 ; Matthews v. Snijfen, 10 Daly, 200.) CHATTEL MORTGAGES. 149 Where the description of the mortgaged chattels is ambiguous, parol evidence is sometimes admissible to identify the property intended to be covered by the mortgage. (Oalen v. Brown, 22 N. Y. 37; Conkling v. Shelly. 28 N. Y. 360.) § 12. Validity of mortgages. As a general rule, a contract valid where executed and to be performed is valid everywhere; and a lien valid in the State where created i? enforceable in all States where the property thereafter comes. (Nichols V. Mase, 25 Hun, 640, affd., 94 IST. Y. 160.) Thus a mortgage npon railroad property executed in Connecticut by a Connecticut railroad com- pany is valid if filed according to the Connecticut laws and need not be filed in this State, though some of its property is situated here, when it is not shown that the mortgaged property was in this State at the time of the execution of the mortgage. {Nichols v. Mase, 94 N. Y. 160.) A chattel mortgage valid where executed and where it is to be performed, will not be deemed usurious because it offends the Usury Law of another State, though the mortgaged property is in such State. {Whitmcm v. Conner, 8 J. & S. 339.) But where the law and policy of the State where the property is located have provided a different rule for its transfer, such rule is binding. {Keller v. Paine, 107 IN". Y. 83.) And where a creditor of the State where the property is located has levied upon property of his debtor, his rights will not be inferior to a chattel mortgage made and to be performed in another State, which is valid in such State, but invalid in the State where the property is located. {Bearing v. McKinnon Dash and Hdw. Co., 165 N. Y. 78.) A chattel mortgage to secure a usurious loan is void. {Leslie v. Hoff- man, 1 Edm. Sel. Cas. 475.) If the mortgagee takes the goods under the usurious mortgage, the mortgagor can recover the same or their value. If the mortgagee proceeds to foreclose the usurious mortgage, an injunction will lie for the restraint thereof. {Ehrgott v. Forgotston, 17 N. Y. Supp. 381, 43 St. Eep. 60 ; Griffin & Curtis on Chattel Mortgages, p. 55.) While the defense of usury is personal, in that a mere stranger cannot attack the mortgage upon that ground, any person having a lien upon the property may assert the invalidity. An execution creditor of the mortgagor may assail the mortgage for usury. {Cavan v. KsJly, 3 Alb. L. J. 373.) In an action by a mortgagee against a sheriff for the con- version of the goods, the sheriff may show the usurious character of the transaction. {Dix v. 7cm WycTc, 2 Hill, 522.) But the mortgagor, after selling the property to a third person, cannot sustain an action to cancel the mortgage and the notes thereby secured and to enjoin a sale in 150 CIVIL LAW AST) PRACTICE. enforcement thereof, on the gi'ound of usury ; nor can a purchaser of the property expressly subject to the mortgage avoid the mortgage on such ground. {James v. OaMey, 1 Abb. Pr. 324.) A chattel mortgage is void vfhere it is given and received in com- promise of a felony. And where pers.ons knowingly advance means to aid the accused to compromise the olfense, and are present and assist in the negotiation, a mortgage taken by them based upon such considera- tion is void. But where the assignee of such a mortgage takes the mort- gaged property, and the mortgagors are no^ connected therewith, they are not liable. {Fellows v. Van Jlysing, 23 How. Pr. 230; Griffin & Curtis on Chattel Mortgages, p. 55.) A mortgage has no validity iintil a delivery thereof is made. {Levy v. Horn, 90 Misc. 624, 153 N. Y. Supp. 913.) If the attorney for creditors receives a mortgage from their debtor, without the knowledge or assent of the creditors, the latter may ratify the transaction by subsequent assent and enforce the mortgage. TThere a debtor makes at the same time several mortgages upon the same chattels to secure several creditors, the refusal of one of the creditors to accept it does not impair the validity of the mortgages accepted by the other creditors. {Brown v. Piatt, 8 Bosw. 324.) The fact that an alteration was made in a chattel mortgage after its execution and delivery will not divest the title of an innocent purchaser acquired under the instrument as made. {Steams v. Oherle, 47 Misc. 349, 94 K Y. Supp. 37.) A mortgagee does not lose his title to the mortgaged property on account of a mixing thereof with similar goods by the mortgagor, v/here he does not consent to the confusion. {Dunning v. Steams, 9 Barb. 60.) And the fact that a mortgagor, with the knowledge and permission of the mortgagee, mixes articles covered by the mortgage with subsequently acquired property, so that some of the articles covered by the mortgage cannot be distinguished from those subsequently acquired, does not render the mortgage invalid as to such of the articles covered by it as can be identified and distinguished. {Caring v. Eichmond, 28 Hun, 25.) § 13. Filing of chattel mortgages in general. Section 230 of the Lien Law (see B. C. & G. Consolidated Laws), provides for the filing of chattel mortgages as follows "Every mort- gage or conveyance intended to operate as a mortgage of goods and chattels or of any canal boat, steam tug, scow or other craft, or the appurtenances thereto, navigating the canals of the State, which is not accompanied by f.n immediate delivery and followed by an actual and continued change of CHATTEL MOKTGAGES. 151 possession of the things mortgaged, is absolutely void as against the cred- itors of the mortgagor, and as against subsequent purchasers and mort- gagees in good faith, unless the mortgage, or a true copy thereof, is filed as directed in this article. This article shall not apply to agreements creating liens upon merchandise Or the proceeds thereof for the purpose of securing the repayment of loans or advances made or to be made upon the security of said merchandise and the payment of commissions or other charges pro- vided for by such agreement, where the conditions specified in section 45 of the Personal Property Law are complied with, nor shall this article apply to the mortgage or pledge of or lien upon stocks or bonds mortgaged or pledged to secure payment of a loan, which stocks or bonds, by the terms of a written instrument creating such mortgage, pledge or lien and setting forth the conditions of such loan, are to be delivered to the lender on the day such loan is made, and every such mortgage, pledge or lien, of such securities, shall be valid as against creditors of such mortgagor or pledgor, provided, however, that if such securities are not delivered to the pledgee or mortgagee on the day such loan is made, the mortgage, lien or pledge therein intended to be created shall be absolutely void and of no effect as against the creditors of such mortgagor, pledgor or lienor unless such in- strument, or a true copy thereof, is filed as directed in this article, on the day following the making of such loan, and provided also that every such mortgage, pledge or lien shall be absolutely void as against purchasers, pledgees or mortgagees in good faith of such stocks or bonds provided such stocks or bonds are delivered to such purchaser, pledgee or mortgagee at the time of such purchase, pledge or mortgage. This article shall not apply to the mortgage or pledge of or lien upon stocks, bonds, debentures, notes or other evidences of indebtedness, or contracts or choses in action, created by one or more corporations to a trustee to secure the payment of bonds, deben- tures or notes issued or to be issued by such one or more corporations, where by the terms of a written instrument creating or evidencing such mortgage, pledge or lien some or all of such stocks, bonds, debentures, notes or other evidences of indebtedness or contracts or choses in action are to be delivered to such trustee at a future date on a release thereof by a trustee under any prior mortgage or instrument of pledge, and every such mortgage, pledge or lien upon such securities shall, without filing or refiling, be valid as against creditors of every such corporate mortgagor or pledgor. Section 236 of the Lien Law provides for the filing of chattel mort- gages on canal boats. The provisions are as follows : " Every mortgage upon a canal boat or other craft navigating the canals of this state, filed as provided in this article, shall be valid as against the creditors of the 152 CIVIL LAW AND PRACTICE. mortgagor and against subsequent purchasers or mortgagees in good faith, as long as the debt which the mortgage secures is enforceable. From the time of such filing, every such mortgage shall have preference and priority over all other claims and liens, not existing at the time of such filing." § 14. Purpose and construction of statute relative to filing. The object of the statute requiring mortgages of personal property to be filed is to prevent imposition upon subsequent purchasers and mort- gagees. While the chattels mortgaged remain in the hands of the mort- gagor, persons dealing with him respecting them are led to believe that he is the owner, and may thus be defrauded, or at least disappointed. (Meech v. Patchin, 14 N^. Y. 71.) Its object also is to protect creditors against the misleading effect of goods remaining in the possession and control of the debtor after they have been secretly transferred to another person. (Vreeland v. Pratt, 17 IST. Y. Supp. 307, 42 St. Eep. 582.) In order to maintain the validity of a chattel mortgage as against creditors and subsequent purchasers and mortgagees in good faith, there must be a strict and rigid observance of the statutory requirements. (Industrial Loan Association v. Saul, 34 Misc. 188, 68 N". Y. Supp. 837.) If not properly filed, the mortgage is void as to such persons without any reference to fraud or good faith on the part of the mortgagee. (Niagara County Bank v. Lord, 33 Hun, 557.) But when filed, it is good as against a hona fide purchaser who searches for but fails to find the mort- gage. (Krihbs v. Alford, 120 'N. Y. 519; Griffin & Curtis on Chattel Mortgages, p. 60.) § 15. Necessity for filing chattel mortgage. All mortgages of goods and chattels are required to be filed except where the mortgagee takes possession of the mortgaged property. The statute goes further, for it requires not only the filing of the mortgages, but also the filing of a conveyance intended to operate as a mortgage of goods and chattels. This requirement is without any modification or qualification arising out of the nature or condition of the property, such as its bulk, difficulty or even possibility of a change of possession by removal or otherwise, or any other like consideration or excuse. In these cases, though it affords a plausible reason for omitting to accompany the mortgage with an actual change of possession, it affords no excuse for the failure to file the mortgage. (Boy v. Birdseye, 5 Denio, 619.) An absolute bill of sale need not be filed, unless the transfer was intended to operate as a mortgage. (Preston v. Southwick, 115 N. Y. CHATTEL MOETGAGES. 153 139; Sheldon v. McFee, 216 N. T. 618.) A pledge of chattels is not required to be filed. {Haskins v. Kelly, 1 Abb. Pr. N. S. 63.) A pro- vision in a lease reserving a lien on property to be grown or placed on the premises by the tenant, frequently operates as a chattel mortgage, and the lease must be filed. An agi-eement contained in a lease of real prop- erty that in case the lease shall be terminated before a certain date, the erections placed upon the leased land shall become the property of the lessor, does not partake of the character of a chattel mortgage and need not be filed as such, even though it operates upon personal property. {Niagara Falls, etc., Co. v. Schermerhorn, 132 App. Div. 442, 117 N. Y. Supp. 10.) Only instruments affecting " goods and chattels " are required to be filed. Thus a mortgage of a chose in action, such as a liquor tax certificate, a lease of real estate, or a mortgage, is not affected by the statute. (Griffin & Curtis on Chattel Mortgages, p. 61.) Keal estate purchased for partnership purposes is personal property, but a mortgage thereon executed by one partner is not a mortgage on goods and chattels. {Tarhell v. Bradley, 7 Abb. IT. C. 273.) A mortgage upon the contingent interest of an attorney in a litigation need not be filed to preserve its validity. {Chester v. Jumel, 5 N. Y. Supp, 809, reversed on other grounds, 125 N. Y. 237.) A mortgage covering both real and personal property should be recorded as a real estate mortgage and also filed as a chattel mortgage. (Chemung Canal Bank v. Payne, 164 N. Y. 252.) But an omission to file as a chattel mortgage, though it may render the mortgage ineffectual as to the personalty, does not affect its lien upon the realty. (Chemung Canal Bank v. Payne, 164 1!^. Y. 252.) By virtue of the provisions of section 231 of the Lien Law, mortgages creating a lien upon real and personal property, executed by a corpo- ration as security for the payment of the bonds Issued by such corpo- ration, or by any telegraph, telephone or electric light corporation, and recorded as a mortgage of real property in each county where such property is located or through which the lien of such telegraph, telephone or electric light corporation runs, need not be filed or refiled as chattel mortgages. § 16. Change of possession in lieu of filing. According to the express language of section 230 of the Lien Law, it is not necessary to file a chattel mortgage where it is accompanied by an immediate delivery and a continued change of possession of the things mortgaged. Whether there has been a change in possession is generally a question for the jury. The question of the .change of possession in 154 CIVIL LAW AND PEACTICE. lieu of refiling of the mortgage is similar in many respects. The possession required in a mortgagee is an actual, physical possession ; . con- structive or legal possession is insufiBcient. (Steele v. Benham. 84 IT. Y. 034; Sidenhack v. Biley, 111 E". Y. 560; Griffin & Curtis on Chattel Mortgages, p. 64.) The change of possession must be opeu, visible ^nd free from concealment. {Tedisco v. Oppenheimer, 15 Misc. 522, 37 Is. Y. Supp. 1073; Steele v. Benham, 84 IST. Y. 634.) But it is not necessary in all cases that the property be removed from the premises where it was previously located. {Lee v. Euntoon, Hoff. Ch. 477.) Where no apparent change is made in the custody and control of the property, an agreement between the parties that the mortgagor is to sell the goods as agent for the mortgagee, is not sufficient. A change of possession from that of mortgagor, as such, to possession as an agent of the mortgagee is not an actual change within the meaning of the statute. {Otis V. Sill, 8 Barb. 102.) A mortgagee, by setting the mortgaged property apart from other property of the mortgagor in the store of the latter and marking the articles with his name by the use of tags, does not secure such an immediate delivery and change of possession of the property as the statute requires. {Button v. Ratlibone, Sard & Co., 126 3sr. Y. 187.) The delivery of a warehouse receipt or bill of lading, as security for a debt, is a symbolic delivery of the property represented thereby. The transaction is sometimes deemed a chattel mortgage of the property, and the delivery of the instrument considered a delivery of the property so that the transaction may be sustained without the filing required by the chattel mortgage statutes. {Banh of Rochester v. Jones, 4 N". Y. 497; First Nat. Bank v. Kelly, 57 N. Y. 34; Griffin & Curtis on Chattel Mortgages, p. 66.) A change of possession as to part of the mortgaged chattels is not sufficient to excuse a failure to file the mortgage. It may be avoided even as to the portion the possession of which is changed. {Benedict v. Smith, 10 Paige, 126.) § 17. Time of filing mortgage. The statute does not expressly, limit the time within which a chattel mortgage shall be filed. {Smith v. Acher, 23' Wend. 653 ; Karst v. Oane, 3 36 N". Y. 316.) The courts, therefore, hold that the mortgagee is enti- tled, where rights of third persons do not intervene between the execu- tion and the filing of the instrument, to a reasonable time after the execution and delivery of the mortgage, in which to file the same in the proper office. What is, a reasonable time depends upon the particular CHATTEL MOKTGAGES. 155 circumstances of each case. A delay of four weeks renders the filing ineffectual. (Tooker v. Siegel-Cooper Co., 194 N. Y. 442.) Where the mortgage upon execution is delivered, not to the mortgagee, but to a third party, upon no condition except that it shall not be delivered at all in the event of the payment of the debt before a specified day, the reasonable time commences to run from such delivery and not from the time of the delivery to the actual mortgagee. (Tooker v. Siegel-Cooper Co., 194 ]Sr. Y. 442.) A chattel mortgage is not effective, as against creditors, or subsequent purchasers or mortgagees in good faith until it is filed. If a creditor levies upon the mortgaged property or such property is sold or mort- gaged to a purchaser or mortgagee in good faith during the interval betvyeen the execution and the filing of the mortgage, the mortgage is ineffectual. The diligence of the mortgagee will not avail him, (Hatha- way V. Howell 54 N. Y. 97; Keller v. Paine, 107 IST. Y. 83.) Where two mortgages are executed at the same time on the same prop- erty to different persons and both are filed at the same time, an agreement that one is to have priority over the other will be sustained. This priority cannot be affected or changed by the neglect of the owner of the mortgage accorded priority to refile it, nor by the diligence of the other mortgagee in refiling his within due time. (Wray v. Federke, 11 J. & S. 335.) § 18. Place of filing chattel mortgage. Section 232 of the Lien Law (see B. C. & G. Consolidated Laws) pro- vides for the filing of chattel mortgages as follows: "An instrument, or a true copy thereof, if intended to operate as a mortgage of a canal boat, steam tug, scow or other craft, or of the appurtenances thereto, navigat- ing the canals of this state, must be filed in the ofiBce of the superintendent of public works, and need not be filed elsewhere. Every other chattel mortgage, or an instrument intended to operate as such, or a true copy thereof, must be filed in the town or city where the mortgagor, if a resident of the state, resides at the time of the execution thereof, and if not a resident^ in the city or town where the property mortgaged is at the time of the execution of the mortgage. If there is more than one mortgagor, the mortgage, or a certified copy thereof, must be filed in each city or town within the state where each mortgagor resides at the time of the execution thereof. In the city of ISTew York, such instrument must be filed as follows, namely: In the borough of Brooklyn in said city, such instrument rhall be filed in the office of the register of the county of Kings; in the borough of Queens in said city, in the office 156 CIVIL LAW AND PKACTICE. of the clerk of Queens county ; in the borough of Eichmond in said city, in the office of the clerk of the county of Richmond j in the borough of Manhattan in said city, in the office of the register of the county of !N'ew York, and in the borough of the Bronx in said city, in the office of the register of the county of Bronx. In every other city or town of the state, in the office of the city or town clerk, unless there is a county clerk's office in such city or town, in which case it must be filed therein. If the chattels mortgaged are in the city of New York at the time of the execu- tion of the mortgage, the mortgage or a true copy thereof must be filed in the county where the mortgagor alleges to reside at the time of the execution of the mortgage, and in the county where the property is situated. All liens and mortgages, including books and papers, pertain- ing thereto, now on file in the comptroller's office, shall be transferred to the office of the superintendent of public works, who shall preserve the same in his department, and who shall be vested with full power and authority to do and perform any and all things relating thereto in like manner and with the same force and effect as heretofore done and per- formed by the comptroller." If the mortgagor is a resident of the State, the mortgage must be filed in the town or city of his residence. (People ex rel. Stevens v. Tloytj 66 ]Sr. Y. 606; Griffin & Curtis on Chattel Mortgages, p. 70.) A mortgage of both realty and personalty must be filed in the town clerk's office as to the personalty ; a filing in the county clerk's office is insufficient. Filing in the clerk's office of the town wherein the mortgagor resided at the time of the execution of the mortgage, is sufficient, though the mort- gagor does not reside there at the time of the filing. (Flicks v. Williams, 17 Barb. 523.) The fact that the mortgagor is described in the instrument as resid- ing in a particular town or coupty is of no importance. A creditor or subsequent purchaser or mortgagee can show that such is not the true resi- dence of the mortgagor and thus defeat the mortgage lien. A person or creditor dealing with the mortgaged property is bound to look for mort- gages only in the town or city where the mortgagor actually resides. (Stewart v. Plait, 101 U, S. 731; Beaumann v. Lihetta, 3 Misc. 518, 23 'N. Y. Snpp. 1 ; Griffin & Curtis on Chattel Mortgages, p. 71.) The mortgagee or his assignee is not estopped by an erroneous recital of the mortgagor's residence; he may show the correct residence of the mort- gagor and that the mortgage is properly filed at such residence. (Chandler V. Bum, Hill & D. Supp. 167.) Where the mortgaged property is owned by two or more persons, as in the case of a mortgage given by a partnership, the mortgage or a copy CHATTEL MOETGAGES. 157 thereof must be filed in the town or city where each resides. (Russell V. St. Mart, 180 N, Y. 355; Bueb v. Geraty, 28 Misc. 134, 59 N. Y. Supp. 249.) In the case of a chattel mortgage given by a joint stock association, the statute is complied with when the mortgage is filed where the principal office of the company is located or its business principally conducted. (Nelson v. Neil, 15 Hun, 383.) A mortgage on a canal boat is to be filed in the office of the super- intendent of public works; and the mortgage of a liquor tax certificate is to be filed in the office of the certificate issuing officer. See Liquor Tax Law, § i2-a. See B. C. & G. Consolidated Laws.) § 19. Manner of filing. Where a chattel mortgage is in the form of a bill of sale with a separate defeasance, the filing of the bill of sale is sufficient to satisfy the statute. (Preston v. Southwick, 115 IT. Y. 139.) If the defeasance were oral, as is many times the case, no other filing would be possible. Section 233 of the Lien Law (see B. C. & G Consolidated Laws), pro- vides for the filing and entry of chattel mortgages as follows : " Such officers shall file every such instrument presented to them for that pur- pose, and indorse thereon its number and time of its receipt. They shall enter in a book provided for that purpose, in separate columns, the names of all the parties to each mortgage so filed, arranged in alphabetical order, under the head of ' mortgagors ' and ' mortgagees,' the number of such mortgage or copy and the date of the filing thereof; and, if the mortgage be upon a craft navigating the canals, and filed in the office of the superintendent of public works, the name of the craft shall also be inserted. In the city of New York such officers shall in addition to the entry aforesaid enter in another book provided for that purpose a state- ment of the premises in which the chattels mortgaged are contained, arranged in alphabetical order, under the name of the street or avenue where the premises are situated and giving the number of such mort- gage or copy and the date of the filing thereof. In case no street or avenue is mentioned in the description, in the mortgage or copy, of the premises in which the chattels are contained, then a statement of such premises shall be entered under the title ' miscellaneous.' Except in the city of New York such officers at the time of filing of such instrument shall, upon request, issue to the person filing the same a receipt in writing, which shall contain the names of the parties to the mortgage, its date, amount and the date and time of the filing thereof." The statute requires the filing in the office of certain officials. If filed in the office, it is not necessary that the officer be personally present at 158 CIVIL LAW AND PEACTICE. the time. {Dodge v. Potter, 18 Barb. 193.) Thus, the filing may be made by a clerk in the store of the town clerk having charge of the office in the absence of the officer. But a proper filing requires the act of the clerk or some person in charge of the office. An unsuccessful attempt to enter the office or to leave the mortgage at the office, when no one is present, is not a proper filing. (Crouse v. Johnson, 65 Ilun, 337, 20 N, Y. Supp. 177.) Where a mortgage is delivered to the clerk after office hours and at a time when he is absent from his office, it is not deemed filed until it is taken to the office. (Hathaway v. Howell, 54 N. Y. 97.) Although, by reason of a vacancy in the office, there may be no town clerk, there is a town clerk's office. Thus, where there is a vacancy in such office, but a person, having the keys to the building con- taining the town clerk's office, placed a mortgage among other chattel mortgages and indorsed it as filed on a certain day, the filing is suffi- cient. (Bishop V. Cook, 13 Barb. 326.) The filing consists in presenting the mortgage at the office and leaving it at the proper place with the papers in the office. The numbering, indorsement and indexing are not substantial elements of the filing. These later acts are to be done by the officer, and their improper per- formance does not affect the rights of the mortgagee. If a third party is misled by the failure of the officer to properly perform his duty, he must feek redress against the officer. (Dikeman v. Puckhafer, 1 Abb. Pr. IN". S. 32, 1 Daly, 489; Griffin & Curtis on Chattel Mortgages, p. 76.) § 20. Payment of fees. " The several clerks and registers are entitled to receive for services hereunder, the following fees: For filing each instrument, or copy, six cents ; for issuing a receipt for the same, six cents ; for entering the same as aforesaid, six cents; for searching for each paper, six, cents; and the like fees for certified copies of such instruments or copies as are allowed by law to clerks of counties for copies and certificates of record kept by them. The superintendent of public works is entitled to receive the following fees for services performed under this article, for the use of the State: For filing each instrument or copy and entering the same, twenty-five cents ; for searching for each paper, twenty-five cents ; and the like fees for certified copies of such instruments or copies as are allowed by law to be charged by the superintendent of public works for copies and certificates of records kept in his office. If o officer is required to file or enter any such paper, or furnish a copy thereof, or issue a receipt therefor, until his lawful fees are paid." (Lien Law, § 234. See B. C. & G. Consolidated Laws.) CHATTEL MOKTGAGES. 159 § 21. Effect of failure to file. By the statute, a chattel mortgage, not filed as prescribed therein, is void unless a change of possession of the property is made, as to creditors and subsequent purchasers or mortgagees in good faith. The instrument is void because the statute says so, not because it is tainted by any inherent vice. {Chemung Canal Bank v. Payne, 164 N. Y. 252 ; Griffin & Curtis on Chattel Mortgages, p. 77.) It is not void as malum in se, but as malum prohibitum. It may be infected as to a portion of the property covered thereby and enforceable as to the balance. {Chemung Canal Bank v. Payne, 164 IST. Y. 252 ; Hardin v. Dolge, 46 App. Div. 416, 61 N. Y. Supp. 753.) As between the parties thereto a mortgage is valid and enforceable "without filing or change of possession. {Stephens v. Meriden Britannia Co., 160 N. Y. 178; Gandy v. Collins, 214 IST. Y. 293; Griffin & Curtis on Chattel Mortgages, p. 77.) A mortgage not properly filed is void only as to the classes of persons mentioned in the statute, namely: creditors, or subsequent purchasers or mortgagees in good faith. Thus, the mortgagee is entitled to the mort- gaged property as against a person wrongfully taking the same, though his mortgage is not filed. {Moses v. Walker, 2 Hilt. 536.) And an unfiled mortgage upon chattels brought by the mortgagor into a firm of which he becomes a member, as his proportion of the capital, is not void as against the other partners. {Bust v. llauselt, 14 J. & S, 22.) A chattel mortgage not properly filed is void as to creditors, including simple contract creditors, whose debts were in existence at any time during the default in filing. Whether the debt accrued before or after the execu- tion of the mortgage is immaterial. {Xarst v. Qane, 136 N, Y. 316; Stephens v. Perrine, 143 N. Y. 476; Griffin & Curtis on Chattel Mort- gages, p. 78.) But though the mortgage is void as against a simple con- tract creditor, be is not in a position to avail himself of the invalidity until be has procured, or is in a position to procure, a specific lien and claim against the property involved. {Skilton v. Codington, 185 N. Y. 80 ; Griffin & Curtis on Chattel Mortgages, p. 79.) This means, ordinarily, that he must procure judgment and cause execution to be issued against the property of the mortgagor. {Button v. Bathbone, Sard S Co., 126 K. Y. 187; Kitchen v. Lowery, 127 N. Y. 53.) The granting of an attachment, however, is an adjudication of indebtedness, and a creditor armed with such process may attack the mortgage. {Ledoux v. East Biver Silk Co., 19 Misc. 440, 44 IST. Y. Supp. 480.) The commencement of an action by a creditor in which a receiver is appointed may operate as a sub- stitute for an execution or attachment. {Kitchen v. Loiuery, 127 IST. Y. 63.) The doctrine that a general creditor cannot attack an unfiled mort- 160 CIVIL LAW AND PEACTICE. gage is simply a rule of procedure and does not affect the right, and, therefore, where the recovery of a judgment is impracticable, it is not an indispensable requisite to enforcing the rights of the creditor. Thus, where the creditor, on account of the death of the mortgagor, cannot obtain a lien or claim upon the property, relief may nevertheless be secured in equity. {Matter of Munson, 70 Misc. 461, 128 IST. Y. Supp. 1106.) A creditor who does not obtain a judgment, but takes a bill of sale of the goods with knowledge or notice of the existence of a mortgage thereon, takes no better title than the mortgagor had, and cannot attack the mort- gage. {Davidson v. Osborne, 151 App. Div. 747, 136 !N". Y. Supp. 247.) But where a creditor, having a second mortgage on certain personal prop- erty, takes actual possession thereof, in an action by the first mortgagee for the conversion thereof, the creditor may set up the defense that the first mortgage was not properly filed. In such a case it is held that, if the instrument entitled the creditor to the immediate possession of the prop- erty, his right to take the same is as absolute as that of a creditor who has proceeded to judgment and execution. {Russell v. St. Mart, 180 N. Y. 355.) An unfiled chattel mortgage is valid as against a judgment which was entered pursuant to a fraudulent scheme to cheat the creditors of the judgment debtor. {E. De Braekeleer & Co. v. Schwabeland, 86 Hun, 143, 33 W. Y. Supp. 212, affd., 155 IST. Y. 644.) But, if the judgment is valid, the mortgagee cannot complain that the execution was irregularly issued. {Grouse v. Schoolcraft, 51 App. Div. 160, 64 N. Y. Supp. 640.) Knowl- edge of the existence of an unfiled mortgage is no answer to an attack thereon by a creditor, and the statute renders the mortgage void as to a creditor whether he has or has not knowledge of the mortgage. {Best v. Staple, 61 IS". Y. 71; Griffin & Curtis on Chattel Mortgages, p. 81.) A mortgage not properly filed is void as against a subsequent purchaser or mortgagee in good faith. To show good faith in a subsequent mortgagee of personal property, so as to enable the holder thereof to avoid an unfiled mortgage, it must be proved by evidence dehors the instrument itself that the second mortgage was given for a valuable consideration, or to secure tlie payment of an honest debt. {BasMns v. Shannon, 3 IT. Y. 310.) Where a subsequent mortgage was taken in good faith, the fact that it was not properly filed does not deprive it of the protection of the statute. Its priority does not depend upon filing. {Witherhee v. Taft, 51 App. Div. 87, 64 ISr. Y. Supp. 347.) Where a person in good faith buys mortgaged chattels, not from the mortgagor, but from one who is a mala fide purchaser, the last purchaser is not one who can attack the mortgage for failure .to file. {^Yooster v. Sherwood, 25 IST. Y. 278.) Thus, where a wife gives a chattel mortgage, CHATTEL MOETGAGES. 161 a purchaser or mortgagee from her husband is not in a position to attack the mortgage for failure to file. (Bah v. Shaw, 13 Misc. 181, 34 IST. Y. Supp. 5.) But -where the first purchaser is in good faith the second succeeds to his rights and can attack the mortgage. (See Dillingham v. Bolt, 37 N. Y. 198.) A subsequent purchaser or mortgagee of chattels, haying actual knowl- edge of an existing mortgage thereon, is not " in good faith," and the mort- gage is unenforceable as against him. (Gildersleeve v. Landon, 73 N. Y. 609; Gandy v. Collins, 214 IST. Y. 293; Davidson v. Osborne, 151 App. Div. 747, 136 K Y. Supp. 247 ; Griffin & Curtis on Chattel Mortgages, p. 82.) Where a second mortgage is given expressly subject to a prior one, the subsequent mortgagee is deemed to have actual knowledge of the prior and all its conditions, and cannot acquire a superior lien. (Independent Brewing Co. v. Durston, 55 Misc. 498, 106 N". Y. Supp. 686.) Where a person about to make a loan on chattels, knowing that a prior unfiled mort- gage on the property has been given, relies on the statement of the mort- gagor that the prior mortgage has been paid without inquiry of the mortga- gee, he is not a subsequent mortgagee in good faith. (Ooodwin v. Bayerle, 18 Misc. 62, 41 IST. Y. Supp. 20.) When the act respecting the filing of chattel mortgages was first passed, the term hona fide purchaser had acquired a settled meaning which did not include a person whose purchase was on account of an existing debt and who parted with no property or right to obtain his conveyance. (Van Heusen v. Badcliffe, 17 N. Y. 580.) Thus, it has been consistently held that a subsequent purchaser or mortgagee, where the only consideration of the transfer is an existing debt or contract, is not in good faith and cannot attack the prior mortgage on the ground that it was not properly filed. (Thompson v. Van Vechten, 27 IST. Y. 568; Griffin & Curtis on Chattel Mortgages, p. 83.) Where a debtor's property is conveyed to trustees to enable him to make preferences among his creditors, they are not pur- chasers in good faith. (Van Heusen v. Badcliffe, 17 E". Y. 580.) Nor can one purchasing the mortgaged property from a second mortgagee for an antecedent indebtedness, with full knowledge of the prior mortgage, and of the claim of a preference made by the holders thereof, hold the property, as against such prior mortgagee. (Tiffany v. Warren, 37 Barb. 571.) Where personal property is levied upon and sold under an execution, the purchaser has the same right as the judgment creditor to attack a prior mortgage on the property; if the mortgage was not properly filed, it is ineffectual as against such a purchaser, though he had actual knowledge thereof. (Porter v. Parmley, 52 IST. Y. 185 ; Best v. Staple, 61 IST. Y. 11 162 CIVIL LAW AND PKACTICE. 71.) A purch£Lser on an eifecution sale holds under the judgment and is entitled to the priority. Any other construction of the statute would lead to the absurdity that, while the mortgage is void as to a judgment, such judgment could not be enforced because, provided the mortgagee would at any time before sale upon the execution file his mortgage and attend the sale and give notice of his mortgage, no one could purchase free therefrom. (Best V. Staple, 61 N. Y. 71.) But, if the sale is made expressly subject to the prior mortgage, the purchaser is estopped from disputing the validity of such a mortgage. (Horton v. Davis, 26 E". Y. 495 ; Porter v. Parmley, 52 ]Sr. Y. 185.) Where a second mortgagee has actual knowledge of a prior unfiled mort- gage, his assignee, though he took the assignment of such second mortgage in good faith for value, cannot avoid the prior mortgage. (David Steven- son Brewing Co. v. Iha, 12 Misc. 329, 33 IST. Y. Supp. 642.) A person in possession of chattels, with a right to such possession, inferior only to the rights of a mortgagee thereof, where he is also a creditor of the mort^ gagor, is generally entitled to attack the mortgage, though he has not secured judgment upon his debt. Thus, a subsequent mortgagee in pos- session, though he did not take his mortgage in good faith, may, by reason of his right as a creditor, in some cases, attack the prior mortgage. (Bus- sell V. St. Mart, 180 N. Y. 355.) Under sections 47, 67 and 70 of the Bankruptcy Act, a trustee in bank- ruptcy is invested with power to attack a chattel mortgage on the groimd that it was not properly filed, though the creditors he represents have not procured judgments. (Skilton v. Codington, 185 N. Y. 80; Titusville Iron Co. V. City of New York, 207 N. Y. 203.) § 22. Transfer of chattels as affecting failure to file mortgage. Except as limited by the Bankruptcy Act and other special statutes, a debtor has the right to transfer his property to one creditor, giving such creditor a preference to the exclusion of his other creditors. Thus, where a mortgagee has failed to properly file his mortgage, if, before any lien upon the mortgaged property has been acquired by a creditor or person who may attack the mortgage, the mortgagor voluntarily transfers the mortgaged property to the mortgagee in payment of the debt or satisfac- tion of the mortgage, the mortgagee thereby acquires a good title to the property. (Tremaine v. Mortimer, 128 N. Y. 1; Karst v. Gane, 136 JST. Y. 316; Stephens v. Perrine, 143 N. Y. 476; Bowdish v. Page, 153 "N. Y. 104; Griffin & Curtis on Chattel Mortgages, p. 88.) But, if the mortgagee of an unfiled mortgage acquires the mortgaged property, not by a voluntary transfer by the mortgagor, by a seizure or foreclosure under CHATTEL MORTGAGES. 163 the mortgage, the mortgagee's title is still subject to the claims of creditors. (^Stephens v. Perrine, 143 IST. Y. 476 ; Bussell v. St. Mart, 180 JSJ". Y. 355 ; Matter of Munson. 70 Misc. 461, 128 N. Y. Supp. 1106.) In such case, however, the creditor cannot maintain an action at law against the mort- gagee for the conversion of the mortgaged chattels, but must sue in equitj' to set aside the transfer as an obstruction to the collection of his debt. (Stephens v. Meriden Brittania Co., 160 N. Y. 178.) Where a mortgagee takes possession of the property by virtue of the mortgage, advertises it for sale and sells it to a bona fide purchaser before the creditor of the mortgagor has acquired any lien upon or interest in the property by virtue of legal proceedings, such purchaser obtains a valid title which he can maintain against a receiver of the property of the mort- gagor appointed in proceedings supplementary to execution. (Merry v. Wilcox, 92 Hun, 210, 36 N. Y. Supp. 1051.) Where a mortgage is unfiled, and, therefore, void as to creditors, but the creditors of the mortgagor fail to avail themselves of their right to attack the mortgage until he makes an assignment for the benefit of credit- ors, they lose their right to levy upon his property, and the assignee takes rights superior to individual creditors and in trust for all the creditors. (Kitchen v. Lowry, 127 K Y. 53; Dorthy v. Servis, 46 Hun, 628, 13 St. Rep. 1.) § 23. Refiling of chattel mortgages. Section 235 of the Lien Law (see B. C.& G, Consolidated Laws), pro- vides for the refiling of chattel mortgages as follows : " A chattel mort- gage, except as otherwise provided in this article, shall be invalid as against creditors of the mortgagor, and against subsequent purchasers or mortga- gees in good faith, after the expiration of the first or any succeeding term of one year, reckoning from the time of the first filing, unless, 1. Within thirty days next preceding the expiration of each such term, a statement containing a description of such mortgage, the names of the parties, the time when and place where filed, the interest of the mortgagee or any person who has succeeded to his interest in the property claimed by virtue thereof, or 2. A copy of such mortgage and its indorsements, together with a state- ment attached thereto or indorsed thereon, showing the interest of the mortgagee or of any person who has succeeded to his interest in the mort- gage, is filed in the proper office in the city or town where the mortgagor then resided, if he is then a resident of the town or city where a mortgage or a copy thereof or such statement was last filed ; if not such resident, but 164 CIVIL LAW AND PKACTICE. a resident of the State, a true copy of such mortgage, together with such statement, shall be filed in the proper office of the town or city where he then resides; and if not a resident of the State, then in the proper office of the city or town where the property so mortgaged was at the time of the execution of the mortgage, a copy of such mortgage and its indorsements together with a statement attached thereto, or indorsed thereon, showing the interest of the mortgagee, or of any person who has succeeded to his interest in the mortgage, must be filed in the same office or offices where the original mortgage or a copy thereof was filed at the time of the execution of the same; provided, however, that where mortgagor was a resident of the borough of the Bronx in the city of New York at the time of the execution of such mortgage, then a copy of such mortgage as above described must be filed in the office of the register of the county of Bronx and also in the office of the register of the county clerk, in case there is no register, of such county in said city in which the property so mortgaged was located at the time of the execution of such mortgage, if not such resident but the property so mortgaged was located in the borough of the Bronx in said city at the time of the execution of such mortgage, then a copy of such mortgage as above described must be filed in the office of the register of the county of Bronx and also in the office of the register of the county clerk, in case there is no register, of such county in said city in which the mortgagor resided when such mortgage was executed ; provided, further, that where the mortgagor was a resident of the borough of the Bronx in the city of New York at the time of the execution of such mort- gage and the property so mortgaged was located in the borough of the Bronx at such time, then a copy of such mortgage as above described must be filed in the office of the register of the county of Bronx and need not be filed in any other office, and, provided further, that where the vendee of a contract for the conditional sale of goods and chattels not attached to a building was a resident of the borough of the Bronx in said city of New York at the time of the execution of such contract, then a copy of such contract, together with a statement as required herein in the case of chattel mortgages, must be filed in the office of the register of the county of Bronx ; if not such resident, nor a resident of any other borough within the city of New York, nor of this State at the time of the execution of such con- tract, but the property so sold was in the borough of the Bronx in said city when such contract was executed, then a copy of such contract and a statement as aforesaid must be filed in the office of the register of the county of Bronx. Except in the city of New York, the officer with whom such a renewal statement or copy of a mortgage is filed, shall upon request issue to the person filing the same a receipt in writing, which shall contain CHATTEL MOKTGAGES. 165 the names of the parties to the instrument filed, its date, amount and the date and time of filing thereof." § 24. Object and construction of statute as to refiling. The object of the statute with reference to the refiling of chattel mort- gages is to furnish a fair and reasonable notice to creditors and subsequent purchasers and to prevent their being misled by the possession and apparent absolute ownership of the mortgagor, and is to inform creditors, pur- chasers, etc., of the extent of the mortgagee's claim under the mortgage, and thus to apprise them of the interest of the mortgagor which they may seek to levy upon, or give credit to, or acquire. (Beers v. Waterbury, 8 Bosw. 396.) In order to maintain the validity of a chattel mortgage as against creditors and subsequent purchasers and mortgagees in good faith, there must be a strict and rigid observance of the statutory requirement. (Industrial Loan Assoc, v. Saul, 34 Misc. 188, 68 N. Y. Supp. 837.) When a creditor or subsequent purchaser or mortgagee in good faith claims the property in hostility to the mortgagee, the inquiry is : Has the mortgagee complied with the statute ? If not, the statute makes the mort- gagee void. The cause of the omission, whether by design or accident, is wholly immaterial. (Ely v. Camley, 19 IST. Y. 496.) § 25. Necessity of refiling. As against the persons named in the statute, the mortgagee must refile the mortgage as provided by section 235 of the Lien Law, or take possession of the property. (Grifiin & Curtis on Chattel Mortgages, p. 93.) Even though the mortgage has become due during the year and the mortgagor is in default so that the absolute title to the mortgaged property has vested in the mortgagee, if the mortgagee permits the mortgagor to retain pos- session, he must refile the mortgage. (Ely v. Camley, 19 1!^. Y. 496 ; Porter v. Parmley, 52 IST. Y. 185 ; Sloan v. National Surety Co., Ill App. Div. 94, 97 IS. Y. Supp. 561, affd., 188 N. Y. 596.) Mortgages creating a lien upon real and personal property, executed by a corporation as security for the payment of bonds issued by such corpora- tion, or by any telegraph, telephone, or electric light corporation, and recorded as a mortgage of real property in each county where such prop- erty is located or through which the line of such telegraph, telephone or electric light corporation runs, need not be filed or refiled as chattel mort- gages. (Lien Law, § 231. See B. C. & G. Consolidated Laws.) A special section of the Lien Law is devoted to mortgages on canal boats. It provides as follows: "Every mortgage upon a canal boat or other craft navigating the canals of this State, filed as provided in this article, 166 CIVIL LAW AND PEACTICE. shall be valid as against the creditors of the mortgagor and against sub- sequent purchasers or mortgagees in good faith, as long as the debt which the mortgage secures is enforceable, From the time of filing, every such mortgage shall have preference and priority over all other claims and Hens, not existing at the time of such filing." (Lien Law, § 236. See B, C. & G. Consolidated Laws.) The language of this section of the Lien Law seems to render it unnecessary to refile such a chattel mortgage. § 26. Time of refiling. The refiling of a chattel mortgage must be within the thirty days pre- ceding the expiration of one year from the original filing. A subsequent refiling does not avail the mortgagee. (Industrial Loan Assoc, v. Saul, 34 Misc. 188, 68 N. Y. Supp. 837.) A refiling before the thirty day period is equally inefficient. (Newell v. Warner, 44 Barb. 258, reversed on othei grounds, 44' K Y. 244.) Under section 20 of the General Construction Law, and section 462 of the Justice Court Act, it seems that when the last day for refiling falls on Sunday or a public holiday, a refiling on the fol- lowing day is sufficient. (Griffin & Curtis on Chattel Mortgages, p. 94.) § 27. Statement of interest of mortgagee on refiling. The statute provides two methods to continue the effectiveness of a chattel mortgage. Either a copy of the mortgage or a statement describing the same may be filed. But, in either case, a statement of the present interest of the mortgagee or the holder of the mortgage must be filed. The object of the Legislature in providing for the filing of a statement of this kind was to apprise creditors and persons dealing with the property, from year to year, of the real interest of the mortgagee and the mortgaged property. (Scott v. 1,000 Island Boat & Engine Co., 134 E". Y. Supp. 150.) The interest of the mortgagee must be stated with substantial accuracy. (Marsden v. Cornell, 62 N. Y. 215.) But, if the mortgagee makes a statement in good faith, with reasonable care and it is substantially accurate, he is deemed to have complied with the statute, though it is not entirely definite and accurate to the smallest amount. (Patterson v. Gillies, 64 Barb. 563.) An understatement of the amount does not affect the validity of the mortgage as to the amount which is stated ; but the mort- gagee cannot, as against the parties to be protected by the statute, after- wards claim that any greater sum is secured by the mortgage than is mentioned in terms or by intelligible reference in the statement. (Beers V. Waterbury, 8 Bosw. 396.) A statement is sufficient which refers to a document annexed to and filed with it, if the two papers, read in con- CHATTEL MOETGAGES. 167 uection with the original mortgage, disclose the interest of the mortgagee intelligently. (Beers v. Waterbury, 8 Bosw..386.) § 28. By whom refiling shall be made. The statement of the renewal of a mortgage must be made by the mort- gagee or his attorney. A statement by the mortgagor, or other third person, is not sufficient. (Osborne v. Alexander, 40 Hun, 323.) But where the statement is made by the mortgagor, it may contain sufficient to constitute a new.mortgage and thus be valid from the time of its filing. But the mere indorsement of a certificate or acknowledgment of the amount due upon a copy of the mortgage filed by the mortgagor is not the execution of a new mortgage. (Osborne v. Alexander, 40 Hun, 323.) § 29. Effect of failure to refile. A failure to properly refile or renew a chattel mortgage renders it abso- lutely void as against the persons named in the statute, that is, creditors or subsequent purchasers or mortgagees in good faith. (Salmon v. Norris^ 82 App. Div. 362, 81 N. Y. Supp. 892; Griffin & Curtis on Chattel Mort- gages, p. 97.) As to such persons it is of no more force than if it had never existed; but, as between the parties thereto, a mortgage, although not refiled, is valid. (Stewart v. Cole, 43 Hun, 1G4; Commercial Bank of Rochester v. Davy, 81 Hun, 230, 30 K Y. Supp, 718.) As a general proposition only those peraons specifically mentioned in the statute can attack the mortgage for a failure to refile. (Wiles v. Clapp, 41 Barb. 645.) It is not necessary that the mortgage be refiled to enable the mortgagee to maintain an action against a third person for taking the chattels from the possession of the mortgagor within a year from the original filing. (Manning v. Monaghan,' 10 Boisw. 231, reversed on other grounds, 28 IST. Y. 585.) " A creditor can, as a general proposition, attack a mortgage for a failure to refile under the same circumstances as for a failure to file originally. If not properly renewed, the mortgage is void as to creditors, whether judgment or simple contract creditors, and whether their debts accrued before, or subsequent to the default in refiling. (Thompson v. Van Vechten, 27 ]Sr. Y. 568 ; State Trust Co. v. Casino Co., 5 App. Div. 381, 39 ISr. Y. Supp. 258 ; Matter of Van Eouten, 18 App. Div. 301, 46 N. Y. Supp. 190; Griffin & Curtis on Chattel Mortgages, p. 98.) A creditor, however, is not generally in a position to attack the mortgage until he has procured a judgment and execution or some specific lien or claim upon the mortgaged chattels. (Schwab Mfg. Co. v. Aizenman, 106 App. Div, 168 CIVIL LAW AND PEACTICE. 478, 94 N. Y. Supp. 729; Cullin v. Byder, 44 Misc. 485, 89 IST. Y.Supp. 465, affd., Ill App. Div. 911.) But where tlie mortgagor dies and tLus renders the recovery of a judgment impracticable, the mortgage may be deemed void as to a creditor though his claim is not reduced to judgment. (Matter of McGovem, 118 jST. Y. Supp. 378.) And v^here a warehouse- man has possession of the property with a right to sell it in discharge of his lien thereon, he is regarded as a judgment creditor in respect to assail- ing the mortgage. {State Trust Co. v. Casino Co., 5 App. Div. 381, 39 ]Sr. Y. Supp. 258; Industrial Loan Assoc, v. Saul, 34 Misc. 188, 08 N. Y. Supp. 837.) A creditor, taking possession of the mortgaged property under a second chattel mortgage may also be in a position to attack the prior mortgage. (See Russell v. St. Mart, 180 N. Y. 355.) A mortgage not properly renewed is void as against a subsequent pur- chaser or mortgagee in good faith who takes his conveyance during the default. {Gihson v. Ferris, 30 St. Eep. 663, 9 IST. Y. Supp. 535.) The term " subsequent " as used in section 235 of the Lien Law means after the time for the refiling has passed. Thus a purchaser or mortgagee of the property within one year from the original filing cannot attack the mort- gage for failure to refile. (Meech v. PatcMn, 14 'N. Y. 71 ; Dillingham v. Bolt, 37 "N. Y. 198.) The term "purchasers," as used in the statute, is not expressly limited to purchasers from the mortgagor. Thus, though a person taking his conveyance before the expiration of a year from the original filing cannot attack the mortgage, a hona fide purchaser or mort- gagee, after the year, from such purchaser will acquire a good title as against the mortgagee. (Dillingham v. Bolt, 37 N. Y. 198 ; BesMn v, Tergenspan, 32 App. Div. 29, 52 IST. Y. Supp. 750.) The first purchaser can thus convey a better title than he himself had. And, where a second mortgage is given within a year after the filing of the first mortgage, which was not properly refiled, on a sale under the second mortgage after the year, the purchaser takes a title superior to the first. (Jaqueth v. Merritt, 29 Hun, 584.) So, a subsequent purchaser with actual knowledge thereof is not in a position to attack a prior mortgage, but this does not prevent him from giving to a purchaser from him, ignorant of the existence of the mortgage, who pays a valuable consideration for the chattel, a title free from the operation of the mortgage. (Marsden v. Cornell, 62 'N. Y. 215.) Upon the death of the mortgagor, a purchaser in good faith from his executor, administrator or person succeeding to the mortgagor's equity of redemption, may attack the mortgage not refiled. (Griffin & Curtis on Chattel Mortgages, p. 100.) A purchaser or mortgagee of chattels, where the sole consideration for the conveyance is an antecedent debt, is not a purchaser in good faith and CHATTEL MOKTGAGES. 169 cannot attack the mortgage for failure to refile, (Jones v. Graham, 77 N. Y. 628.) A subsequent purchaser or mortgagee, with actual knowledge of a prior mortgage upon the property, cannot be considered a purchaser in good faith and cannot avoid the mortgage because the mortgagee neglected to properly refile the same. {Hill v. Beebe, 13 IS. Y. 556 ; Lewis V. Palmer, 28 K Y. 271; Mack v. Phelan, 92 N. Y. 20.) To charge a purchaser of mortgaged property, as subordinate to the mortgage, on the ground of actual notice, where the purchase is made after the expiration of the one year and no renewal is filed, it is not enough to show that the purchaser knew of the original mortgage ; it must be shown that, when he purchased after the expiration of the year, he knew or had notice that the mortgage debt had not been paid. {Power v. Freeman, 2 Lans. 127.) Where a creditor of a mortgagor levies upon and sells the mortgaged property under an execution, the purchaser succeeds to the rights of the creditor, and, though he has knowledge of the mortgage, he may attack the same, if the mortgagee has omitted the duty of refiling. {McCrea v. Hopper, 35 App. Div. 572, 55 IS. Y. Supp. 136.) But where the sale is made expressly subject to the lien of the mortgage, the purchaser takes subject to the mortgage and cannot object to the mortgagee's failure to refile. {McCrea v. Hopper, 35 App. Div. 572, 55 IST. Y. Supp. 136.) A person who pays a judgment rendered against him for the conversion of a chattel acquires title to the chattel, but he is not a purchaser in good faith within the meaning of the chattel mortgage statute and cannot attack a prior mortgage on the ground that it was not properly refiled. {Marsden V. Cornell 62 N. Y. 215.) § 30. Change of possession of property in lieu of refiling. Where the mortgagee takes the mortgaged property into his possession before the expiration of a year from the original filing, it is not necessary for the preservation of his rights that he refile or renew the mortgage. (Porter v. Parmley, 52 IS. Y. 185 ; Breeze v. Bayne, 202 K Y. 206 ; Grifiin & Curtis on Chattel Mortgages, p. 103.) And, if the mortgagor voluntarily transfers the mortgaged chattels to the mortgagee in partial or in full discharge of the mortgagee's debt before the creditor obtains an execution or specific lien upon the property, the mortgagee's title will be sustained though the mortgage was not refiled. (Tremaine v. Mortimer, 128 N. Y. 1 ; Commercial Bank of Rochester v, Davy, 81 Hun, 200, 30 IN". Y. Supp. 718.) The possession of a mortgagee under a chattel mort- gage, which renders refiling thereof unnecessary, must be an actual and continued change of possession which is open and public. (Farmers' L. & 170 CIVIL LAW AND PEACTICE. T. Co. V. Baker, 20 Misc. 387, 46 JST. Y. Supp. 266.) Mere words do not constitute a change of possession. (Griffin & Curtis on Chattel Mortgages, p. 104.) § 31. Fraudulent chattel mortgages. As a general proposition, where a chattel mortgagor is permitted by an agreement with the mortgagee to dispose of the mortgaged property and to use the proceeds thereof for his own benefit, the mortgage is fraudulent and ineffectual as against creditors of the mortgagor. ( Griswold v. 8hel- don, 4 ]S^. Y. 581 ; 8hiUon.Y. Codington, 185 JN". Y. 80 ; Zartman v. First National Bank, 189 IST. Y. 267; Baillargeon v. Dumoulin, 165 App, Div. 730, 151 K Y. Supp. 112 ; Griffin & Curtis on Chattel Mortgages, p. 108.) Such fraudulent arrangements may or may not be contained in the mort- gage. A mortgage in the usual form is void as to creditors, where such unlawful agreement exists between the parties, though it is not expressed in words. (BracTcett v. Harvey, 91 IST. Y. 214; Hangen v. Ilachemeister, ,114 K Y. 566; Spurr v. Hall, 46 App. Div. 454, 61 IST. Y. Supp. 854.) Such an agreement may be inferred from the fact that the mortgagee has permitted sales to be made for the use of the mortgagor. (Griffin & Curtis on Chattel Mortgages, p. 110.) The question frequently arises in connection with a mortgage upon a stock of goods. Where the mortgagor has the power to continue the busi- ness and sell the goods in the same manner as before the execution of the mortgage, with power to use the proceeds for the support of himself and family, and the purchase of new goods, the mortgage is general fraudulent. (Bracket v. Harvey, 91 N. Y. 214.) A method, however, is now outlined by statute, which the parties may follow, and thus escape the strictness of the rules here stated. Section 45 of the Personal Property Law (see B. C. & G. Consolidated Laws) permits a chattel mortgage on a stock of goods to be given under certain circumstances. Its provisions are as fol- lows : " Liens upon merchandise or the proceeds thereof created by agree- ment for the purpose of securing the repayment of loans or advances made or to be made upon the security of said merchandise and the payment of commissions or other charges provided for by such agreement, shall not be void or presumed to be fraudulent or void as against creditors or otherwise, by reason of want of delivery to or possession on the part of the lienor, whether such merchandise shall be in existence at the time of the creation of the lien or shall come into existence subsequently thereto or shall sub- sequently thereto be acquired by the person creating the lien, provided there shall be placed and maintained in a conspicuous place at the entrance of every building or place in or at which such merchandise, or any part CHATTEL MOETGAGES. 171 thereof, shall be located, kept or stored, a sign on which is printed in legible English the name of the lienor and a designation of said lienor as lienor, factor or consignee, and provided, further, that a notice of the lien is filed, stating : " 1. The name of the lienor, and the name under ■which the lienor does business, if an assumed name ; the principal place of business of the lienor within the State ; and, if the lienor is a partnership or association, the names of the partners, and, if a corporation, the State under whose laws it was organized. " 2. The name of the person creating the lieu, and the interest of such person in the merchandise, as far as known to the lienor. " 3. The general character of the merchandise subject to the lien or which may become subject thereto, and the period of time during which such loans or advances may be made under the terms of the agreement creating the lien. " Such notice must be verified by the lienor or his agent, to the effect that the statements therein contained are true to his knowledge. It must be filed with the officer designated in section two hundred and thirty-two of the Lien Law, in every town or city where the merchandise, subject to tlie lien, or any part thereof, is or at any time shall be located, kept or stored, and also in the town or city where the principal office or place of business of the lienor within the State is or at any time shall be located. Such officers shall file every such notice presented to them for that purpose and shall endorse thereon its number and the time of its receipt. They shall enter in a book provided for that purpose, in separate columns, the names of the parties named in each notice so filed under the head of ' owners ' and ' lienors,' the number of such notice and the filing thereof, and the general character of the merchandise as therein stated. The names of the persons creating the liens, as stated in the notice, shall be arranged in alphabetical order under the head of ' owners.' Such officers at the time of filing such notice shall upon request issue to the person filing the same a receipt in writing, containing the substance of the entries or to be made as hereinabove provided. Such officers shall be entitled to receive for their services hereunder fees at the same rates as provided in section two hundred and thirty-four of the Lien Law. " Such notice may be filed at any time after the making of the agree- ment, and shall be effectual from the time of the filing thereof as against all rights of third parties thereafter arising. Upon the payment or satis- faction of indebtedness secured by any lien specified in this section, the lienor or his legal representative, upon the request of any person interested in the said merchandise, must sign and acknowledge a certificate setting 172 CIVIL LAW AND PEACTICE. forth such payment or satisfaction. The officer or officers with whom the notice of lien is filed must, on receipt of such certificate or a copy thereof certified as required by law, file the same in his office and write the word ' discharged ' in the book where the notice of lien is entered opposite the entry thereof, and the lien is thereby discharged. " If the agreement creating such lien shall also give the lienor the right to or lien upon accounts receivable resulting from or which may result from a sale or sales of the merchandise subject to the lien, or of part of such merchandise, such right of lien shall not be void or ineffectual as against creditors or otherwise, by reason of want of possession of any of such account on the part of the lienor or by reason of failure to make or deliver a further assignment of any such account, provided a bill, invoice, statement or notice shall be mailed, sent or delivered to the person owing such account receivable, stating or indicating that the account is payable to the lienor, and such mailing, sending or delivery of such bill, invoice, statement or notice shall have the same effect as a formal assignment of such account to the lienor named therein." And section 230-a of the Lien Law, added by chapter 462 of the Laws of 1921, contains further provisions as to this class of mortgages and pro- vides as follows: " Every mortgage or conveyance intended to operate as a mortgage iipon a stock of merchandise in bulk or any part thereof, or upon merchandise and fixtures pertaining to the condnct of the business of the mortgagor, shall be void as against the creditors of the mortgagor, unless the mortgagor shall at least five days before the execution of such mortgage make a full and detailed inventory, showing the quantity and, so far as possible with the exercise of reasonable diligence, the cost price to the mortgagor of each article to be included in the mortgage and unless the mortgagee demand and receive from the mortgagor a written list of names and addresses of the creditors of the mortgagor due or owing to each and certified by the mort- gage, under oath to be a full, accurate and complete list of his creditors and of his indebtedness ; and unless the mortgagee shall at least five days before the execution of such mortgagor, notify personally or by registered mail every creditor whose name and address is stated, in such list, or of which he has knowledge, of the proposed mortgage and the terms and con- ditions thereof." A transfer of personal property, made in trust for the use of the person making it, is void as against the existing or subsequent creditors of such person. (Personal Property Law, § 34.) This statute does not vitiate a chattel mortgage given by a debtor to one of his creditors, though the surplus of the property, after satisfaction of the creditor's demand, is to be returned to the mortgagor. (Dunham v. Whitehead, 21 N. Y. 131.) It is a customary provision of a chattel mortgage that the surplus shall be returned to the mortgagor. The statute covers only passive trusts for the exclusive use of the grantor, or where the use of the grantor is the chief purpose, and has no application to trusts which are only incidental, and are expressed, or result to the use of the grantor, after the exercise of the CHATTEL MOETGAGES. 173 primary purpose, which is lawful. {Delaney v. Valentine, 154 ]^. Y. 692.) A chattel mortgage given to a creditor to secure the debts of such creditor and certain other creditors of the mortgagor, though his property is not sufficient to pay all of his creditors, is not necessarily fraudulent or void by reason of the sitatute, where it was given and received in good faith without fraudulent intent on the part of either party. {Delaney v. Valentine, 154 N. Y. 692.) From earliest times, transfers of property made with the intent to delay, hinder or defraud the creditors of the owner, have been deemed void as to such creditors. The rule is now embodied in section 35 of the Personal Property Law, providing : " Every transfer of any interest in personal property, or the income thereof, and every charge on such property or income, made with the intent to hinder, delay or defraud creditors or other persons of their lawful suits, damages, forfeitures, debts or demands, and every bond or other evidence of debt given, suit commenced, or decree or judgment suffered, with such intent, is void as against every person so hindered, delayed or defrauded." To avoid the mortgage the creditor must show, not only the fraudulent purpose of the mortgagor, but that the mort- gagee was a party to the fraud and took the mortgage with such unlawful intent. (Zoeller v. Riley, 100 N. Y. 103; Hyde v. Bloomingdale, 23 Misc. 728, 51 E". Y. .Supp. 1025.) A husband honestly indebted to his wife may give her a chattel mortgage to secure the debt, although at the time of executing it he is unable to pay his debts in full; and when it is found by the jury that the mortgage was given with honest intent, and not for the purpose of hindering, delaying or defrauding creditors, it is valid. (Manchester v. Tihhetts, 121 IST. Y. 219 ; Spaulding v. Keyes, 125 N". Y. 113.) But dealings between a husband and wife which resxilted in . the appropriation of the husband's property for the payment of a debt claimed to be due to the wife, to the exclusion of other creditors, furnish uncommon opportunities for the perpetration of fraud, and are carefully and critically criticized. (Stanley v. Nat. Union Bank, 115 N. Y. 122.) The fact that the statement of the amount secured by a mortgage is incor- rect does not per se render the mortgage fraudulent. (Miller v. LocJcwood, 32 K Y. 293 ; Frost v. Warren, 42 N. Y. 204 ; Griffin & Curtis on Chattel Mortgages, p. 122.) But an overstatement of the sum is a badge of fraud, and may afford, together with the other circumstances in the case, ground upon which the jury may find the mortgage fraudulent. (Miller v. Lock- wood, 32 N. Y. 293.) If held fraudulent by reason of an excessive state- ment of the debt, it is not available to the mortgagee, even for the amount actually due. The consideration given for a chattel mortgage is always a ^ highly important circumstance in ascertaining whether it was given in fraud of creditors, but it is by no means conclusive. A mortgage may be held fraudulent though based upon a valuable consideration, for, to be valid, it is essential that it be also given in good faith. (Billings v. Russell, 101 N". Y. 226.) Upon the other hand it is expressly provided by statute that " a transfer or charge shall not be adjudged fraudulent as against creditors in CIVIL LAW A^D PEACTICE. or purchasers, solely on the ground that it was not founded on a valuable consideration. (Personal Property Law, § 38.) § 32. Who may attack fraudulent mortgage. A creditor at large of a mortgagor is not in a position to attack a mort- g'age given by his debtor; he must first procure a judgment and execution or some specific lien against the property. (Skilton v. Codington 86 App. Div. 166, 83 ]Sr. Y. Supp. 351, reversed on other grounds, 185 K Y. 80.) By attaching the property as that of the mortgagor, he acquires a lien thereon and may impeach the title of the mortgagee. (Frost v. Matt, 34 N. Y. 253.) A creditor with a judgment rendered by a justice of the peace may attack a chattel mortgage given by his debtor, and may do so though the judgment is obtained upon attachment. {Bailey v. Burton, 8 Wend. 339.) Where the creditor has a mortgage to secure his debt, he may attack a prior mortgage upon the same property on the ground that it is fraudulent as to the creditors of the mortgagor. {Anderson v. Hunn, 5 Hun, 79.) If the creditor has levied upon personal property of his debtor under a valid judgment, he may bring suit in equity in aid of hia execution to procure an adjudication that a chattel mortgage upon such property is void as against his judgment. And where the mortgagee takes possession of and sells the mortgaged property before the creditor obtains a judgment and execution against the same, the creditor can compel the mortgagee to account for the value thereof. {Pfeiffer v. Roe, 108 App. Div. 54, 95 ISr. Y. Supp. 1014.) By virtue of section 19 of the Personal Property Law certain representa- tive persons are authorized to assail mortgages as against their benefi- 'ciaries. The statute provides as follows: "An executor, administrator, receiver, assignee or trustee, may, for the benefit of creditors or others interested in personal property, held in trust, disaffirm, treat as void and resist any act done, or transfer or agreement made in fraud of the rights of any creditor, including himself, interested in such estate, or property, and a person who fraudulently receives, takes or in any manner interferes with the personal property of a deceased person, or an insolvent corpora- tion, association, partnership or individual isi liable to such executorj administrator, receiver or trustee for the same to the value thereof, and for all damages caused by such act to the trust estate. A creditor of a deceased insolvent debtor, having a claim against the estate of such debtor, exceeding in amount the sum of $100, may, without obtaining a judgment- on such claim, in like manner for the benefit of himself and other creditors interested in said estate, disaffirm, treat as void and resist any act done or conveyance, transfer or agreement made in fraud of creditors or maintain an action to set aside such act, conveyance, transfer or agreement. Such claim, if disputed, may be established in such action. The judgment in such action may provide for the sale of the property involved, when a con- veyance or transfer thereof is set aside, and that the proceeds thereof be brought into court or paid into the proper surrogate's court to be admin- istered according to law." CHATTEL MORTGAGES. 175 § 33. Right of mortgagor to transfer mortgaged property. Before default in the payment of a chattel mortgage, a mortgagor may sell or mortgage the property, and the purchaser may hold the same subject to the mortgage. Such a purchaser may again, before default, sell and deliver to another, with the like effect, and in such case the remedy of the mortgagee, upon maturity of a mortgage debt, is to follow the property and recover it from the possession of the last purchaser. (Porter v. Parm- ley, 43 How. Pr. 44:5, reversed on other grounds, 52 W. Y. 185 ; GrifSn & Curtis on Chattel Mortgages, p. 126.) If a second mortgagor, who took his mortgage before default in the first, seizes the property under his mort- gage after the mortgagor defaults in the first, he is liable to the latter for conversion. (Kleinherger v. Brown, 26 J. & S. 4, 8 'N. Y. Supp. 866.) After default, the mortgagor loses all legal title to the mortgaged prop- erty ; he cannot sell or mortgage it. But he may, even then, transfer his possession together with his equity of redemption. (Kitchen v. Lowry, 127 K T. 53 ; Tremaine v. Mortimer, 128 N. Y. 1.) Even after the mort- gagee has taken possession of the property, the mortgagor has a beneficial interest therein which he may convey. (Tremaine v. Mortimer, 128 N. Y. 1.) A mortgagor of personal property may not always be bound, at the peril of being charged with fraud, to disclose whether the property is encum- bered; the mortgagee may search the clerk's office and protect himself against prior mortgages. But, if the subsequent mortgagee, at the time of taking his mortgage, inquire of the mortgagor whether there are prior mortgages upon the property and the mortgagor, falsely asserts that there are none, fraud may be predicated. (Lynch v. Tibbits, 24 Barb. 51.) The mortgagor, by selling the mortgaged property without the consent of the mortgagee, may render himself liable to criminal prosecution. Sec- tion 940 of the Penal Law provides : " A person, who, having theretofore executed a mortgage of personal property, or any instrument intended to operate as such, sells, assigns, exchanges, secretes or otherwise disposes of any part of the property, upon which the mortgage or other instrument is at the time a lien, with intent thereby to defraud the mortgagee or a pur- chaser thereof, is guilty of a misdemeanor." To secure a conviction under this section of the Penal Law, it must be shown that the act of the defendant in disposing of the property was " with intent to defraud." (People V. Staton, 79 App. Div. 634, 80 N. Y, Supp. 2.) If the mort- gagee gave the mortgagor absolute permission to sell the property, no conviction can be had ; but where the permission was only to enable the mortgagor to pay the mortgage and the mortgagor, with fraudulent intent, 176 CIVIL LAW AND PKACTICE. planned to sell and convert the proceeds to his own use, he may be con- victed. (MilUchamp v. People, 14 Week. Dig. 252.) § 34. Right of mortgagee to maintain action for damages. A mortgagor, entitled to the possession of mortgaged property, may maintain an action for its recovery or for damages for its conversion, even against the mortgagee. (Moore v. Prentiss Tool and Supply Co., 133 ISr. Y. 144.) Where the mortgagee has not insisted upon the pos- session of the mortgaged property, the mortgagor may maintain an action against a third party for the recovery of possession of the property, though he has defaulted in the payment of the mortgage. (Burns v. Winchell, 44 Hun, 261, 7 St. Kep. 640; Griffin & Curtis on Chattel Mortgages, p. 128.) After default in the payment of the mortgage, the mortgagor has no legal rights in the mortgaged property, and can, therefore, maintain no action at law against the mortgagee; his only remedy is in an action to redeem the mortgage. (Oasserly v. Witheriee, 119 N. Y. 522; Darrow v. Wendelstadt, 43 App. Div, 426, 60 IST. Y. Supp. 174 ; Griffin & Curtis on Chattel Mortgages, p. 129.) He cannot sue the mortgagee for damages on the ground that the latter has made a wrongful or unfair sale of tlio property. (Stoddart v. Dennison, 38 How. Pr. 296, 7 Abb. Pr. JN". S. 309.) But where there is a surplus arising from the sale of the property, it may be recovered in an action at law. If the mortgagee takes the property before default when he has no right to do so, as where he assumes to take it under the " danger clause " when he does not in good faith deem himself unsafe, or where a demand for the return of the property is necessary before seizure and no demand is made, the mortgagor may recover the property or its value of the mortgagee. Or, if the mortgage is discharged as to certain articles originally covered, the mortgagee will be liable for conversion if he takes the same. (Griffin & Curtis on Chattel Mortgages, p. 130.) In an action before default by the mort- gagor against the mortgagee for the conversion of the property, the dam- ages recoverable are the value of the property less the amount of the debt. But, where the action is against a stranger, the mortgagor can recover the whole value. (Russell v. Butterfield, 21 Wend. 300.) § 35. When mortgagor deemed in default. The mortgagor is in default if he permits the time appointed for pay- ment to pass without making the required payment. The title of the mortgagee to the mortgaged property then becomes absolute, leaving the CHATTEL MOKTGAGES. 177 mortgagor a mere equity of redemption. Where no time is specified in the mortgage for the payment of the debt, it is payable immediately and no demand is necessary before taking possession or foreclosing the mort- gage. (Steams v. Oberle, 47 Misc. 349, 94 JST. Y. Supp. 37; Griffin & •Curtis on Chattel Mortgages, p. 135.) Or, where the mortgage specifies an impossible time for payment, in legal effect it is the same as though no time is specified, and it is due immediately. (Fuller v. Aclier, 1 Ilill 473.) Where a mortgage is payable upon demand, the title to the mort- gaged property becomes absolute in the mortgagee upon a demand. '(Hulsen v. Walter, 34 How. Pr. 385.) Though a demand may be neces- sary as between the parties to a mortgage payable on demand, it is not a necessary prerequisite to an action to recover the property from one wrongfully taking the same. (Brown v. Cook, 3 E. D. Smith, 123'.) A mortgage payable one day after it is made is not payable on demand, and no demand is necessary before the commencement of an action to recover possession of the mortgaged property. (Brochman v. Buell, 16 Daly, 90, 9 ]Sr. Y. Supp. 895.) Where default is made in the payment of one installment of a mort- gage payable in installments, and the mortgage provides that, upon default in one installment, the mortgage debt shall become due, the mortgagee may seize the property or otherwise enforce the mortgage. (Bauman v. Gomez, 15 Daly, 450, 8 N. Y. Supp. 480.) But where the mortgage does not become due upon default in the payment of one installment and the right to enforce the mortgage is not given the mortgagee until the maturity of the entire debt, though the mortgagee might sue to recover the installment, he is not in a position to enforce the default by a seizure of the property or foreclosure of the mortgage merely because the mort- gagor has defaulted in one installment. (Earle v. Gorham Mfg. Co., 2 App. Div. 460, 37 K Y. Supp. 1037; Abramson v. Potts, 69 Misc. 64, 125 N. Y. Supp. 1012.) If the mortgagor is in default by failure to pay one installment, he cannot redeem without a tender of the whole debt, though by a tender and acceptance of the unpaid installment the forfeit- fure is waived and the mortgagor resumes his original status under the mortgage, (Earle v. Oorham Mfg. Co., 2 App. Div. 460, 37 JST. Y. Supp. 1037.) A chattel mortgage sometimes contains a clause to the effect that if execution is levied against the mortgaged property or if the mortgagor suffers or permits an attachment to be levied against such property, the mortgage shall thereupon become due and enforceable. Such a clause is valid, and, where an officer levies upon the property under such process, the right to the possession of the goods vests in the mortgagee and he 12 1T8 CIVIL LAW AND PKACTICE. is entitled thereto as against the officer. {Bryan v. Smithy 13 Daly, 331.) A clause of such nature generally refers to process against the mortgaged chattels, and the mortgage does not become due by a levy upon prop- erty of the mortgagor not covered by the mortgage. (Eobeftson v. Ongley Electric Co., 146 IST. Y. 20.) A stipulation in a chattel mortgage that, upon the removal or disposi- tion of the mortgaged property without the consent of the mortgagee, the mortgage shall become due and enforceable, is valid. (Russell V. Butter- field, 21 Wend. 300; Griffin & Curtis on Chattel Mortgages, p. 138.) An attachment of the mortgaged property without the connivance of the mortgagor is not a sale or disposal thereof within the meaning of a clause providing that, if the mortgagor sells or in any way disposes of the goods^ the mortgagee may take the same and keep them in default in payment. (Carpenter v. 'Town, Hill & D. Supp. 72.) The time for the payment of the mortgage may be extended by the mortgagee, but an extension to be binding must be based upon a legal consideration. (Bepelow v. Walsh, 98 App. Div. 320, 90 N .Y. Supp. 651.) A mere promise to extend the time of payment is not a bar to the foreclosure of the mortgage prior to the expiration of such extended time. The refiling of the mortgage after it has become due does not operate as an extension of time or prevent the mortgagee from insisting upon the forfeiture. (Dane v. Mallory, 16 Barb. 46 ; Fuller v. Acher, 1 Hill, 473.) The mortgagee does not extend the time of payment by retaining the property without selling the same. (Burdick v. McVanner, 2 Denio, 170.) Upon default in payment, the mortgagor forfeits his legal title to the mortgaged chattels. The mortgagee, may, however, waive such forfeit- ure. The mortgagee after default is not obliged to accept a tender of the debt; he may insist upon the forfeiture. But, if he accepts the tender, the forfeiture is waived and the mortgagee's title to the mortgaged prop- erty is extinguished. (West v. Crary, 47 N. Y. 423.) If the mortgage becomes due on account of the failure to pay an installment of the debt, the mortgagee waives the forfeiture if he accepts the installment due, though, to redeem, the mortgagor might be compelled to tender the entire debt. By waiving a forfeiture of this character, the parties are placed in the same position as before the maturity of the installment. (Earle V. Oorham Mfg. Co., 2 App. Div. 460, 37 JST. Y. Supp. 1037.) By demanding the payment of a past due installment, the mortgagee waives the forfeiture. (Van Loan v. Willis, IS 'D&lj,2Sl.) But a refiling of the mortgage after default is not a waiver. (Dane v. Mallory, 16 Barb. 4C ; Fuller V. Aeher, 1 Hill, 473.) CHATTEL MOKTGAGES. 179 § 36. Possession of mortgaged property. There is considerable difference in the rights of the mortgagor and of the mortgagee to the possession of the mortgaged property before defaidt has been made by the mortgagor and after such a default has been made. In the absence of a clause in a chattel mortgage which can be construed to allow the mortgagor to retain possession of the mortgaged property, the right to possession follows the legal title, and is, therefore, in the mortgagee. {Parish v. Wheeler, 22 N. Y. 494; Rich v. Milk, 20 Barb. 616.) But as a practical proposition, a mortgage is seldom drawn which does not contain some provision authorizing the mortgagor to retain pos- session. Thus, a " danger clause," permitting the mortgagee to take pos- session at any time he deems himself unsafe, by implication, gives the mortgagor the right of possession until default or until the mortgagee exercises his right under such clause. {Hall v. Sampson, 35 N. Y. 274.) But upon default of the mortgagor, the mortgagee, by virtue of his absolute title to the mortgaged chattels, is entitled to the possession thereof. {Judson V. Easton, 58 N". Y. 664; Bragelman v. Dane, 69 N. Y. 19; Longennecher v. Kuhn, 126 App. Div. 254, 110 N.' Y. Supp. 517; Griffin & Curtis on Chattel Mortgages, p. 141.) He may take the prop- erty from the mortgagor or any one claiming under the mortgagor whoso rights are not superior. {Porter v. Parmley, 43' How. Pr. 445, 13 Abb. Pr. N. S. 104, reversed on other grounds 52 N. Y. 185.) The right of possession is not affected by the fact that the mortgagor has moved from his residence and stored the goods on the premises of a third person, as the mortgagee is entitled to the goods as much in one place as another. {Reefer v. Oreene, 16 !N". Y. Supp. 498.) If the right of the mortgagor to the possession of the property expires and the right of the mortgagee thereto commences while the goods are the subject of a levy under execu- tion or attachment against the mortgagor, the mortgagee is entitled to claim the property and the officer is guilty of conversion if he withholds the same; the mortgagee is under no obligation to pay or tender the costs and expenses of the process. {Fairbanks v. Bloom field, 5 Diier, 434.) The mortgagor may waive Lis right to the possession of the property or may waive a condition precedent to the right of the mortgagee to acquire possession thereof. {Nichols v. Mase, 94 N". Y. 160.) The mortgagee may also waive his right to the possession of the property. The latter's right, however, is not waived by the acceptance of payments on the mort- gage at other times than the days specified in the mortgage for that purpose. {Kraus v. Black, 56 Misc. 641, 107 JST. Y. Supp. 609.) 180 CIVIL LAW AND PKACTICE. § 37. Rights of mortgagee under danger clause. It is a common practice to insert in a chattel mortgage a clause authoriz- ing the mortgagee, at any time he deems himself unsafe, to take possession of the property and sell the same previous to the time mentioned for the payment of the debt. Such a provision is known as a " danger clause." It is a valid provision and authorizes the mortgagee to take the prop- erty at any time he in good faith deems himself unsafe. (Smith v. Post, 1 Hun, 516, 3 T. & C. 647; Griffin and Curtis on Chattel Mortgages, p. 142.) If he is justified in taking the property, he acquires an absolute title thereto the same as though the debt were due and the mortgagor in default. But the mortgagee must act in good faith ; he cannot take the property maliciously or merely because he wanted or needed the money. (Darling v. Hunt, 46 App. Div. 631, 61 N. Y. Supp. 278.) If the mort- gagee takes the property under such a clause, it is presumed that he in good faith deemed himself unsafe. (Smith v. Post, 1 Hun, 516, 3 T. & 0. 647.) And it is incumbent upon the mortgagor or person assailing the mortgagee's rights, to show the want of good faith. (Stage v. Van Leuvan, 77 App. Div. 646, 78 N. Y. Supp. 960.) If there is any evidence upon the question it becomes a question of fact for the jury to determine whether the mortgagee did in reality feel insecure, or whether it was a mere pretense for the purpose of enforcing payment of the debt before maturity. (Hawver v. Bell, 19 N". Y. Supp. 612, affd., 141 IST. Y. 140.) § 38. Retention by mortgagee of property without foreclos-ure. If the mortgagor fails to pay the debt at the maturity of the mortgage, the absolute legal title to the mortgaged property vests in the mortgagee. He may sell the property in foreclosure of the mortgage and thus extinguish the mortgagor's equity of redemption. But he may retain possession of the property and no legal right of the mortgagor is thereby infringed, though the mortgagor may redeem within a reasonable time. (Coe V. Cassidy, 72 IST. Y. 133 ; Griffin & Curtis on Chattel Mortgages, p. 144.) As the mortgagor has the right of redemption, the mortgagee cannot deal with the property quite as his own. While the mortgagee keeps the property, he is bound to take care of it. He cannot, without incurring responsibility, negligently suffer it to be stolen or damaged. Any reasonable expense to which he is subjected in the care of the prop- erty is a proper charge against it. (Goe v. Cassidy, 72 N. Y. 133.) Where the mortgagee after default retains the mortgaged property without foreclosing the mortgagor's equity of redemption, if the prop- erty is equal in value to the amount of the debt, the debt is deemed satisfied. (Sherman v. Slayhach, 58 Hun, 255, 12 IST. Y. Supp. 291; CHATTEL MOETGAGES. 181 Levy V. Eeich, 78 Misc. 413, 138 JST. Y. Supp, 419.) If the property is worth more than the goods, the mortgagor has no legal remedy to recover the difference; his only remedy is to redeem in equity. {Olcott V. Tioga B. B. Co., 40 Barb. 179, affd., 27 N. Y. 546.) The value of the property at the time it is taken by the mortgagee, not the value at a subsequent time, controls in determining whether the debt is satisfied. (Pulver V. Bichardson, 3 T. & C. 436.) Where the property is taken by the mortgagee, not for the purpose of foreclosure, but for the purpose of protecting the property and the mortgagor's security, the debt is not necessarily discharged. (Beadleston & Woerz v. Morton, 16 Misc. 72, 37 N. Y. Supp. 666.) If goods subject to a chattel mortgage are abandoned by the mortgagor, the mortgagee may retake possession, sue for the amount unpaid, hold the goods as security for his claim, and sell them under his execution if it be not otherwise satisfied. {Blooming dale v. Gaudio, 85 Misc. 389, 147 IST. Y. Supp. 432.) Thus, where a land- lord, holding a chattel mortgage upon his tenant's household furniture, takes possession thereof on its abandonment by the tenant and cares for it, the debt is not deemed satisfied thereby. {Lathers v. Hunt, 16 Daly, 349, 10 N". Y. Supp. 529.) Where the mortgagee's right to the goods is disputed by a third person and the mortgagee does not, therefore, sell the property before the determination of the rights of the parties, the debt is not presumed to have been paid by the retention of the property. {Third National Bank v. Shields, 55 Hun, 274, 8 IST. Y. Supp, 938.) § 39. Action by mortgagee for possession of property. Upon default, or at any other time when entitled to the possession [thereof, the mortgagee may maintain an action in replevin to recover the .possession of the mortgaged chattels. {Fidelity Loan Assoc, v, Connolly, ■92 ]Sr. Y. Supp. 252.) The procedure in justice's court in such actions is outlined in sections 2919-2933 of the Code of Civil Procedure. The necessary parties defendant in an action of replevin by a mortgagee are the persons having possession of the property. Where the property is in the possession of a warehouseman, the mortgagor need not be joined. {Hazlett V. Hamilton Storage and Warehouse Co., 47 Misc. 660, 94 IST. Y. Supp. 580.) A demand for the mortgaged property is not generally necessary before the commencement of an action for its recovery. {Brockman v. Buell, 16 Daly, 90, 9 N. Y. Supp. 895.) Even though the mortgage requires a demand of the mortgagor before the mortgagee can recover the possession thereof from the mortgagor, as against a third person wrong- fully obtaining the property from the mortgagor, a demand is not neces- sary. {Brown v. Cook, 3 E. D. Smith, 123.) 182 CIVIL LAW AND PEACTICE. § 40. Action by mortgagee to recover debt. Even though the mortgagee has no effectual remedy upon the mortgage, he may bring an action against the debtor to recover the debt secured thereby. The debt is not merged in the mortgage. (Lathers v. Hunt, 16 Daly, 135, 9 N, Y. Supp, 494.) Upon the recovery of a judgment for the debt, an execution may generally be levied against the property described in the mortgage, and the mortgagee will thus collect his debt. (Emerson V. Enapp, 129 App. Div. 827, 114 JST. Y. Supp. T94.) But he cannot in all cases recover the debt of the mortgagor, for the debt may be owing by one person while the mortgage be given by another. (BlaJce v. Corhcit, 120 N. Y. 327.) The parties by their contract may confine the remedy of the mortgagee to the mortgage. (Matthews v. Sheehan, 69 N. Y. 585.) Where the mortgagor of chattels sells the same to a third .person who assumes and agrees to pay the debt as a part of the purchase price, the mortgagee may recover the debt of such vendee. (Briggs v. Oliver, 68 N. Y. 236 ; Bernheimer v. Blumenthal, 42 App. Div. 193, 58 N. Y. Supp. 1003.) An action cannot be maintained upon the mortgage to recover the debt, unless the instrument contains an agreement to pay the same or a distinct acknowledgment thereof; where the instrunient contains no such recognition of liability, the action must be brought upon the debt. (Culver V. Sisson, 3 N. Y. 264.) § 41. Action by mortgagee for conversion of chattels. Where the mortgagee is entitled to the possession of the mortgaged property, any person withholding or taking possession thereof from the mortgagee is guilty of conversion and liable accordingly. (Malcom v. O'Reilly, 89 N. Y. 156 ; Smith v. Smalley, 19 App. Div. 519, 46 N. Y. Supp. 277; Griffin &' Curtis on Chattel Mortgages, p. 148.) But the mortgagee cannot recover without an existing right to the immediate actual possession of the property. The assignee of a mortgage may likewise recover for the conversion of the property. (Woljf v. Bausch, 22 Misc. 108, 48 ISr. Y. Supp. 716.) If a purchaser of the property from the mortgagor retains or disposes of the property without the consent of the mortgagee at a time when the latter is entitled to the possession thereon, he is liable to the mort- gagee for conversion. (Sheldon v. McFee, 216 N". Y. 618.) B"t if sncli purchaser transfers the goods before the mortgagee becomes entitled li> the possession thereof, the mortgagee has no action of conversion agniiist him; the remedy of the mortgagee is against the person having the prop- CHATTEL MOETGAGES. 183 erty while the mortgagee is entitled thereto. {Hathaway v. Brayman, 42 N. Y. 322; Martin v. Lewinski, 54 App. Div. 573, 66 N. Y. Supi). 995.) Where a person assists a mortgagor in wrongfully disposing of the mortgaged property, though he acts as an innocent tool, he ip liable to the mortgagee for tlie conversion of the property. (Spraights v. Ilawley, 39 N. Y. 441.) A sheriff or constable who levies upon and sells the mortgaged property under process against the mortgagor or some third party is liable to the mortgagee for a conversion of the property. {Butler 1, Miller, 1 IST. Y. 496; Hall v. Sampson, 35 E". Y. 274.) Where, how- ever, the mortgagor has a leviable interest, a sale of the property in general terms without recognition of the mortgagee's rights does not necessarily render the officer or parties promoting the sale trespassers or guilty of conversion. {Hull v. Camley, 11 N. Y. 501; Goulet v. Asseler, 22 -N. Y. 225 ; Manning v. Monaghan, 28 N". Y. 585 ; Griffin and Curtis on Chattel Mortgages, p. 150) But, even in such a case, if the sale is so conducted that the property is sold in parcels to different purchasers, the mortgagee may recover the damages caused by the unlawful dispersal of his property. {Tifft v. Barton, 4 Denio, 171.) . Where the mortgagor has converted the mortgaged property, no demand is necessary for the maintenance of an action of conversion by the mort- gagee. {Woodbridge-v. Nelson, 6 Week. Dig. 248.) Nor is a demand necessary in an action against a person wrongfully taking the property from the mortgagor. Thus, where an officer with process against the mortgagor levies upon the property, when the mortgagor has no leviahlQ interest therein, no demand is necessary. {Smith v. Smalley, 19 App. Div. 519, 46 IST. Y. Supp. 277.) In an action of conversion hy a mortgagee against a stranger who shows no right or title to the property, he may recover the full value of the mortgaged property though it exceeds the amount of the debt; the difference is the subject of an accounting between the parties. {Paiish V. Wheeler, 22 JST. Y. 494 ; Bigelow v. Gohle, 9 App. Div. 391, 41 IST. Y. Supp. 299.) But in an action against the mortgagor or person succeed- ing to his rights, not more than the amount of the debt is recoverable. {Davis V. Bliss, 187 JST. Y. 77.) In an action by a second mortgagee against a prior mortgagee claiming under a usurious mortgage to recover for conversion of the property, the plaintiff can recover only the amount remaining due upon his mortgage. {Chadwich v. Lamh, 29 Barb. 519.) Where the levy is upon chattels not owned by the judgment debtor, the mortgagee thereof can recover the full value. {Bigeloiu v. Goble, 9 App. Div, 391, 41 N. Y. Supp. 299.) 184 CIVIL LAW AND PEACTICE. § 42. Foreclosure by sale of chattels. After default the mortgagor still has an equity of redemption in the mortgaged chattels. This right is lost by a foreclosure of the mortgage either by action or by a bona fide sale under the power of sale. (Coe v. Cassidy, 72 N. Y. 133.) The remedy of sale under the power is gen- erally more speedy and effectual than by action. {Briggs v. Oliver, 68 ]!^. Y. 336.) Under a power of sale the mortgagee may sell the mort- gaged chattels at public or private sale, and, if the sale is hona fide, the mortgagor's equity will be cut off. (Coe v. Cassidy, 72 IST. Y. 133; Lathers v. Hunt, 16 Daly, 135, 9 IST. Y. Supp. 494.) But where the mortgage provides iei terms for a public sale, a private sale will not cut off the equity of redemption. (Randall v. Dunbar, 14 Week. Dig. 332.) Unless the mortgage expressly requires notice of the sale to be given to the mortgagor, the sale may be without such notice. (Chamherlain v. Martin, 43 Barb. 607.) A sale under the power of sale, to cut off the equity of redemption or to authorize the mortgagee to sue for a deficiency must be in good faith. (Coe V. Cassidy, 72 N. Y. 133.) If a sale under the power of sale is conducted fairly and in good faith, the mortgagee may purchase the property and hold the same free from the equity of redemption. (Olcott V. Tioga B. Co., 27 N. Y. 546 ; French v. Powers, 120 I^. Y. 128.) But a purchase by the mortgagee at an inadequate price may, in some cases, afford grounds for holding that the mortgagee has not fulfilled the require- ment of good faith. (Sherman v. Slayhach, 58 Hun, 255, 12 'N. Y. Supp. 291.) The mortgagee can sell only enough of the property to satisfy his debt. If he continues to sell the property after he has realized enough to satisfy the debt and costs, he becomes a trespasser and is liable in conversion to the mortgagor or the person succeeding to the mortgagor's title. (O'Rourhe v. Haddock, 114 JiST. Y. 541.) When enough of the property is sold to satisfy the debt, the power of sale becomes, ipso facto, void and the mortgagee becomes a trustee of the mortgagor as to the balance of the property. (Charter v. Stevens, 3 Denio, 33.) The mortgagor may, however, elect to treat the entire sale as valid and to regard the excessive , sum received as surplus money in the hands of the mortgagee. (Daven- port V. McChesney, 86 E". Y. 242.) Where the mortgagee sells the mortgaged property for more than enough to pay the mortgage debt, the mortgagor or his successor is entitled to the surplus and may maintain an action for its recovery. (Davenport v. McChesney, 86 IST. Y. 242; Griffin & Curtis on Chattel Mortgages, p. 156.) A creditor of the mortgagor may reach such surplus CHATTEL MORTGAGES. 185 fund and cause it to be applied on his claim. (Hardt v. Deutsch, 30 App. Div. 589, 52 N. Y. Supp. 335.) A warranty of title is not implied where it appears that the seller does not intend to assert title of ownership in himself, hut simply to transfer such interest or title as he has. {Cohn v. Ammidown, 120 N. Y, 398.) A puhlic sale of property by virtue of a chattel mortgage is notice that the mortgagee is not selling his own title to the property, but that which he has acquired through the mortgage, and no warranty of title to the prop- erty so sold is implied against the mortgagee. {Cohn v. Ammidown, 130 K Y. 398.) § 43. Rights of creditors. Outside of the right of a creditor of a mortgagor to attack the mort- gage because the mortgagee has failed to file or refile the same, as is explained in preceding sections, he has certain other rights with reference to the mortgaged property. For example, a creditor of the mortgagee may levy upon the property, for the mortgagee is considered to have legal title thereto, and this is true although the property remains in the possession of the mortgagor. {Saratoga Holding Co. v. Washhurn, 70 Misc. 110, 127 ]Sr. Y, Supp, 1016; Griffin & Curtis on Chattel Mortgages, p 163.) But the mere equity of redemption which the mortgagor has, is not the subject of levy and sale, and where such is the only interest of the mortgagor, the property cannot be levied upon under an execution against him. {Oalen V. Broivn, 22 IST. Y. 37; Craft v. Brandow, 61 App. Div. 247, 70 N. Y. Supp. 364; Fishel v. Hamilton Storage Warehouse Co., 82 Misc. 532, 86 InT. Y. Supp, 196.) Thus, where the mortgagor is in default, and his only interest in the property is an equity of redemption, it cannot be levied upon under process against him. {Porter v. Parmley, 52 IST. Y, 185 ; Mavchester v. Tibhetts, 121 IST, Y. 219; Leadhetter v. Leadhetter, 125 K Y. 290; Griffin & Curtis on Chattel Mortgages, p. 164.") And this is so though the mortgagor continues to retain possession of the property after the default. {Champlin v. Johnson, 39 Barb, 606.) And where the mortgagee has possession of the property, the mortgagor has no leviable interest therein, though the mortgage debt is not yet due. {National Cash Register Co. v. Coleman, 85 Hun, 125, 32 K Y. Supp. 593.) But before default, if the mortgagor is entitled to possession of the property for a definite period, he has an interest therein which can be reached by execution, and the property can be sold subject to the mortgage. (Matiison v. Baucus, 1 K Y. 295 ; Hull v. Carnley, 11 N. Y. 501 ; Hamill V. Gillespie, 48 N. Y. 556 ; Griffin & Curtis on Chattel Mortgages, p. 165.) Where the mortgagor has a leviable interest at the time of a 186 CIVIL LAW AND PRACTICE. levy on the property, the officer making the levy is not liable for con- version where he does not sell or withhold the property after the leviable interest terminates. (Randall v. Cook, 17 Wend, 53.) But, if the officer detains it after the termination of the leviable interest, he becomes liable to the mortgagee. {Fairbanhs v. Bloomfield, 5 Duer, 434.) If the goods are exempt from execution, a creditor of the mortgagor has no claim thereon, and is liable if he causes a sale thereof under his execution. {Livor v. Orser, 5 Duer, 501.) § 44. Rights of lienors on mortgaged property. The lien of an artisan or mechanic for work done upon a chattel encumbered by a mortgage is generally superior to the mortgage. (ScoH v. Delahunt, 65 N, Y. 128.) The keeper of a hotel, apartment hotel, inn, boarding house or lodging house, except an emigrant lodging house, is given by section 181 of the Lien Law, a lien upon the baggage and other property brought upon- the premises by a guest, boarder, or lodger, for the proper charges due from him, etc. The lien mentioned by this statute is superior to a chattel mortgage upon the property brought upon the premises unless the lienor had actual notice that the guest was not the owner legally in possession thereof. {Matthews v, Victor Hotel Co., 132 !N". Y. Supp. 375.) The constructive notice created by the proper filing of the chattel mortgage does not give the mortgage priority, and the lienor is entitled to the property as against the mortgagee, though the mortgage was due before the mortgagor brought the property upon tlio lienor's premises. (Matthews v. Victor Hotel Company, 132 N. Y. Supp. 375.) Section 183 of the Lien Law gives a person keeping a livery stable, or boarding stable for animals, or pasturing or boarding one or more animnls, etc., a lien upon the animals and wagons, etc., for the sum due for the care of the animal or for the storage of the vehicle. The lien of a bailee under this section is superior to an earlier chattel mortgage upon the same property. (Corning v. AcTcley, 4 N", Y. Supp. 255, 21 St. Rep. 703 ; Peter Barrett Mfg. Co. v. Van Bonk, 149 App. Div. 194; Griffin & Curtis on Chattel Mortgages, p. 44.) Section 184 of the Lien Law gives a person keeping a garage or place for the storage, maintenance, keeping or repair of motor vehicles, etc., a lien upon motor vehicles so stored for the sum due therefor. A garage keeper loses his lien under this statute as against the mortgagee if he voluntarily delivers the property to the mortgagor, though he has an agree- ment with the mortgagor that he shall not lose his lien by such delivery. (Thourot V. Delahaye Import Co., 69 Misc. 351, 125 N, Y. Supp. 827.) CHATTEL MORTGAGES. 187 § 45. Rights of subsequent mortgagee. A second mortgage is generally a valid security, and after default by tlie mortgagor, entitles such, mortgagee to the possession of the property as against everyone except the first mortgagee. (Moore v. Prentiss Tool and Supply Co., 133 N. Y. 144; Griffin & Curtis on Chattel Mortgages, p. 173.) As against a third mortgagee the second is deemed a first moi't- gagee. (Kimball v. Farmers' and Mechanics' Banlc, 138 JN". Y. 500.) He can maintain an action for the conversion of the property as against anyone, except possibly the first mortgagee. (Moore v. Prentiss Tool and Supply, ■Co., 133 N. Y, 144; Columbia Bank v. American Surety Co., 84 App. Uiv. 487, 82 :N. Y. Supp. 10o4, affd., 178 K Y. 628 : Schwab Mfcj. v. Aizenman, 106 App. Div. 478, 94 N. Y. Supp. 729; Griffin & Curtis on Chattel Mortgages, p. 173.) A second mortgagee may seize and sell mortgaged property, subject to the first mortgage, but may be guilty of conversion if the sale is made in violation of the latter's rights. (Kleinberger v. Brown, 26 J. & S. 4, 8 K". Y. Supp. 866.) Where a mortgagee, whose right to possession has become perfected under the mortgage, obtains possession in a lawful manner, and sells the property generally without taking any notice of a prior lien or mortgage, he is not liable in trespass or trover at the suit of the mortgagor or prior lienor or mortgagee. (Hale v. Omaha Nat. Bank, 7 J. & S. 207, affd., 64 IST. Y, 550.) Where a mortgagee takes the property from the mortgagor and places it in the custody of another mortgagee upon his promise to return it upon demand, the latter, when sued for the property, cannot claim that his mortgage gives him a prior lien. (Jones v. Howell, 3 Rob. 438.) § 46. Assignment of mortgage. A mortgage with the debt secured thereby is capable of an assignment and the assignment carries with it all the rights of the mortgagee to enforce the mortgage. An assignment after default conveys to tlio assignee a legal title to the mortgaged property. (Campbell v. Birch, 60 N". Y. 214.) If absolute in its terms it cannot be shown by parol that it was given to discharge the mortgage. (Tyler v. Taylor, 8 Barb. 585; Griffin & Curtis on Chattel Mortgages, p. 176.) An assignment of a chattel mortgage need not be filed. (Baxter v. Gilbert. 12 Abb. Pr. 97.) Where a mortgage for the benefit of two persons whose debts are se(!urcd thereby, is assigned to a third person who takes the property into his possession, they may compel such third person to account for the prop- erty. (Weil v. Levy. 80 Hun, 382, 30 K Y. Supp. 127.) A chattel mortgage is hut an accessory or incident to the debt. An 188 CIVIL LAW AND PEACTICE. assignment of the debt carries with it the mortgage and the right to enforce the same 5 if the assignment of the debt is after default it transfers the legal title to the mortgaged property. And a transfer of a portion of the debt secured by the mortgage passes to the transferee an interest in the mortgage without any formal assignment thereof. (Chandless v. Globe Storage and Carpet Cleaning Co., 49 Misc. 5G2, 98 N. Y. Supp. 511.) The mortgage cannot exist independently of the debt. If an arrangement is made which separates the two, as a spei;ial agreement that the mortgage shall not accompany the debt, the mortgage is, ipso facto, extinguished. {Langdon v. Buel, 9 Wend. 80.) But where a mortgage and a note represent the same debt, and the mortgage is assigned without the transfer of a note, the retention of the latter does not con- clusively establish that it was not the intention of the assignor to transfer the debt with the mortgage. The mortgage is an incident to the debt, not to the note. (Campbell v. Birch, 60 K Y. 214.) An assignment of a chattel mortgage is subject not only to the equities between the parties but also to the equities in favor of third persons against the assignor. (David Stevenson Brewing Co. v. Iha, 155 N". Y. 224; Griffin & Curtis on Chattel Mortgages, p. 177.) But a bona fide purchaser, before maturity, of a negotiable promissory note, seoired by a chattel mortgage, takes the mortgage as he takes the note, free from any equities which existed in favor of third persons while it was held by the mortgagee. (Gould v. Marsh, 1 Hun, 566, 4 T. & 0. 128 ; Griffin & Curtis on Chattel Mortgages, p. 178.) § 47. Discharge of mortgage. A chattel mortgage is discharged in several ways. One way is a pay- ment of the debt secured by the mortgage. Where there are successive mortgages on the same property, and the debtor or anyone standing in his place with notice of a subsequent mortgage pays off a prior, it is extinguished as against the second mortgage and as against any 0110 subsequently deriving title under the owner of the equity of redemption. (Thompson v. Van Vechten, 27 IST. Y. 568.) But in some cases, where the owner of tlie equity of redemption has paid off a mortgage on the property, equity will treat the incumbrance as alive and the person who has paid it as succeeding to the rights of the mortgagee; but this will be done only when it will uphold the innocent purpose of the person so pay- ing and will be injurious to no one. (Doolittle v. Naylor, 2 Bosw. 206.) A mortgage is not deemed merged or extinguished because the mort- gagee takes other security for the same indebtedness, unless there is an express agreement that such shall be the effect of the subsequent CHATTEL MOETGAGES. 189 security. {Miller v. Lockwood, 32 N. Y. 293 ; Griffin & Curtis on Chattel Mortgages, p. 180.) Thus, it is held that a mortgage is not discharged by a subsequent mortgage upon the same property to secure the same indebt- edness; or by a note for the debt, or a judgment recovered thereupon. (Griffin & Curtis on Chattel Mortgages, p. 180.) A transfer of the mortgaged property by the mortgagor to the mort- gagee does not discharge the mortgage where the mortgagee has previously assigned the mortgage to a third person. (Baxter v. Gilbert, 12 Abb. Pr. 97.) And where the mortgagor, after giving a bill of sale of the property to the mortgagee, gives a second mortgage on the property which is accepted by the same mortgagee, even if the bill of sale could be con- sidered as discharging the first mortgage, the second may be deemed a recognition of the prior and reinstates it and renews it as it previously existed. (Walker v. Henry, 85 N. Y. 130.) An assignment of the mortgage by the mortgagee to the mortgagor dis- charges the mortgage. (Phoenix Mills v. Miller, 4 St. Kep. 787.) The purchase by the executrix of a deceased partner of a mortgage against the firm is not a payment thereof, and the surviving partner cannot enjoin a suit to foreclose the same. (Lowenstein v. Lowenstein, 114 App. Div. <55, 99 N. Y. Supp. 730.) And where one bids off, at a sheriff's sale on execution, property of the judgment debtor, embraced in a chattel mortgage previously executed by suc!i debtor, the sale being subject to the mortgage, and subsequently purchases and takes an assignment of the mortgage, the transaction will not operate as a payment or satisfaction of the mortgage. (Brown v. Bich, 40 Barb. 28.) A tender of the amount due on a real estate mortgage discharges the lien of the mortgage. But, in the case of a chattel mortgage, there is, strictly speaking, no lien, and the property can be held free from the mortgage only by payment or by keeping the tender good. (Noyes v, WycJcoff, 30 Hun, 466, affd., 114 N. Y. 204.) Upon default, the absolute legal title to the mortgaged chattels passes to the mortgagee. A tender of the payment of the debt does not reinvest the mortgagor with title to the property. (Campbell v. Birch, 60 N. Y. 214 ; Griffin & Curtis on Chattel Mortgages, p. 183.) The mortgagee may refuse the tender and then the only remedy of the mortgagor is a suit in equity to redeem the mortgage. He has no remedy at law. But if the mortgagee accepts the tender he waives the forfeiture, and the title to the property revests in the mortgagor. (West v. Crary,,4:7 K Y. 423.) A release of property from the lien of a chattel mortgage, though given without consideration, is not void. It is the same as a voluntary and executed gift, and a delivery of the mortgage, where it covers property 190 CIVIL LAW AND PEACTICE. other than that released, it not necessary to consummate the gift, a delivery of the release being all that is required. (Kennedy v. Strobel, 77 Hun, 96, 28 N. Y. Supp. 452.) Section 238 of the Lien Law provides for the discharge of chattel mort- gages as follows : " Upon the payment or satisfaction of a chattel mort- gage, the mortgagee, his assignee or legal representative, upon the request of the mortgagor or of any person interested in the mortgaged property, must sign and acknowledge a certificate setting forth such payment or satisfaction. The officer with whom the mortgage, or a copy thereof, is filed, must, on receipt of such certificate, file the same in his office, and write the word ' discharged ' in the book where the mortgage is entered, opposite the entry thereof, and the mortgage is thereby discharged." MOTOE VEHICLES. 191 CHAPTER X. MOTOR VEHICLES. Section 1. Right of automobilist to use public highways. 2. Care to be exercised by driver of motor vehicle. 3. Competency of driver of motor vehicle. 4. Speed of macliine. 5. Control of machine. 6. Warning of approach. 7. Lookout for other travelers. 8. Liability of owner for negligence of chauffeur. 9. Violation of law. 10. Contributory negligence of person injured. 11. The Motor Vehicle Law. § 1. Right of automobilist to use public highways. The primary purpose of streets and highways is that of travel, either on foot by a pedestrian, or in a vehicle propelled by animal or other power. (Huddy on Automobiles, 5th Ed., p. 47.) The driver of a motor vehicle has an equal right to use the public highways in common with foot travelers and those driving horses. (Huddy on Automobiles, 5th Ed., p. 51 ; Towner V. Brooklyn Heights R. Co., 44 App. Div. 628, 60 N. Y. Supp. 289 ; Clark V. Woop, 159 App. Div. 437, 144 N. Y. Supp. 695; Ebling Brewing Co. V. lAnch, 80 Misc. 517, 141 N. Y. Supp. 480.) The auto driver must use due care to avoid injury to other persons, and other travelers are bound to exercise due care to avoid an injury to the automobilist or his machine. § 2. Care to be exercised by driver of motor vehicle. The driver of a motor vehicle must obey all statutes and ordinances regulating the conduct of such a driver, and in addition must exercise reasonable care to avoid injury to other persons using the public highways. {Knight v. Lanier, 69 App. Div. 454, 74 N'. Y. Supp. 990 ; Murphy v. ^Yait, 102 App. Div. 121, 92 K Y. Supp. 253'; Huddy on Automobiles, 6th Ed., p. 333.) This ordinarily means such care as an ordinarily prudent person would exercise under the same circumstances. What amounts to reasonable care depends upon the surrounding circumstances. Precautions which constitute reasonable care on a rural highway, would constitute gross negligence on a city street. (Huddy on Automobiles, 5th Ed., p. 339.) But the driver of a motor vehicle does not insure other travelers against accident, and he is liable for injury sustained by another 192 CIVIL LAW AND PKACTICE. traveler only in case negligence is shown. (Gantanno v. James A, Steven- son Co., 172 App. Div. 252, 158 JST. Y. Supp. 335; Seaman v. Moti, 110 'N. Y. Supp. 1040 ; Huddy on Automobiles, 5th Ed., p. 346.) § 3. Competency of driver of motor vehicle. One of the obligations imposed on the driver of an automobile is that he shall have reasonable experience and skill in the management of auto- mobiles and that he be physically capable of running the machine. (Huddy on Automobiles, 5th Ed., p. 354). And when one employs another to run a motor vehicle, he should exercise reasonable care in selecting an employee ■ with the necessary qualifications. (Huddy on Automobiles, 5th Ed., p. 355.) One should not run a motor vehicle when he is intoxicated. When he is in such condition, the law requires of him the same precautions as though he were sober. (Huddy on Automobiles, 5th Ed., p. 357.) And the owner of a machine must not permit its operation by one under the age of 18 years. (Highway Law, § 282. See C. B. & G. Consolidated Laws.) An owner of an automobile who permits his son under 18 years of age to operate it, may be liable for the son's conduct in the operation of the machine. (Schultz v. Morrison, 91 Misc. 248, 154 N. Y. Supp. 257.) § 4. Speed of machine. The Highway Law, section 287, requires the driver of a motor vehicle to operate the same at a rate of speed so as not to endanger the property of another or the life and limb of any person ; and further provides that a speed in excess of thirty miles an hour for a distance of one-fourth of a mile shall be presumptive evidence of driving at a rate of speed which is not careful and prudent. The statute gives one who was traveling at a rate exceeding thirty miles an hour an opportunity of showing that his speed was reasonable under the circumstances. (People v. Mellen, 104 Misc. 355 ; Huddy on Automobiles, 5th Ed., p. 393.) But, outside of any statu- tory provisions, it is the duty of the operator to drive at a speed which is reasonable under the circumstances ; and, if an unreasonable speed causes injury to the person or property of another, he may be liable for ensuing damages. (De Carvalho v. Brunner, 223 IST. Y, 284; Bohringer v. Camp- hell, 154 App. Div. 879, 137 IST. Y. Supp. 241 ; Fitiin v. Sumner, 176 App. Div. 617, 163 N. Y. Supp. 443 ; Huddy on Automobiles, 5th Ed., p. 374.) What constitutes a reasonable rate of speed is generally a ques- tion for the jury. (Huddy on Automobiles, 5th Ed., p. 397.) At turns and street intersections the speed should be slower than at places where less danger of injury is to be expected. And when passing street cars, th^ driver of the machine should either stop or slacken his speed so that injury MOTOK VEHICLES. 193 to persons getting on and off the car may be avoided. (Huddy on Auto- mobiles, 5tb Ed., p. 380.) § 5. Control of machine. The driver of a motor vehicle must keep the same under reasonable control afall times. (Thies v. Thomas, 11 N. Y. Supp. 276; Huddy on Automobiles, 5th Ed., p. 398.) When proceeding along the wrong side of the highway, greater control is required of the driver than when he is pro- ceeding in accord with the law of the road. And when driving at night, the control of the machine should be such that he can avoid injury to persons or property in the street within the scope of his lights. That is, he should drive so that when the lights disclose an obstruction in the road, he can stop the machine and avoid injury either to himself or another. (Huddy on Automobiles, 5th Ed., p. 400.) § 6. Warning of approach. The Highway Law, section 286, requires that every motor vehicle shall be provided with a Siuitable and adequate horn or other device for signaling. The statute contemplates and the law requires that the driver of a motor vehicle shall give warning of his approach when such practice is reasonably necessary to avoid injury to other travelers, whether on foot or in other vehicles. Eeasonable care requires that at street crossings and other places where travelers may naturally be anticipated, a warning of the approach of a motor vehicle shall be given by its driver. {Wolcoti v. Renault Selling Branch, 223 IST. Y. 288 ; Gross v. Foster, 134 App. Div. 243, 118 IST. Y. Supp. 889 ; Bohringer v. Camphell, 154 App. Div. 879, 137 N. Y. Supp. 241 ; Huddy on Automobiles, 5th Ed., p. 403.) § 7. Lookout for other travelers. It is the duty of the driver of a motor vehicle to keep a reasonably careful lookout for other travelers so that he may be able to avoid a col- lision. Whether the driver has fulfilled his duty in regard to watching for pedestrians and other persons, is generally a question for the jury. Partic- ularly at street crossings and other places where many pedestrians and other travelers are to be anticipated, considerable care in this respect should be exercised. A charge of negligence may be based on the failure of the driver of a motor vehicle to see another traveler as soon as he should. (Bradley v. Jaechel, 65 Misc. 509, 119 IST. Y. Supp. 1071; Thies v. Thomas, 11 K Y. Supp. 276; Huddy on Automobiles, 5th Ed., p. 409.) The general duty of the driver is to look in front of his machine, and he is not under as strict an obligation to look toward the rear to see if a street 13 194 CIVIL LAW AND PKAOTICE. car or another vehicle is a,pproaching, or to see. whether children are climb- ing on the rear of the machine. (Huddy on Automobiles, 5th Ed., p. 41Ij) But the driver should look toward the side, particularly at street crossings, to see whether other travelers are approaching at right angles. (Huddy oh : Automobiles, 5th Ed., p. 412.) • § 8. Liability of owner for negligence of chauffeur. The owners of every carriage running or traveling upon any lurujpike, road or highway, for the conveyance of passengers, are made by statute jointly and severally liable to the party injured, for all injuries and damages done by any person in the employment of such owners, as a driver, while driving such carriage, whether the act occasioning snch injury or damage be willful or negligent or otherwise, in the same manner as such driver woidd be liable (Highway Law, § 325) and the term "carriage'' as so used is declared to include stage coaches, wagons, carts, sleighs, sleds, automobiles, or motor vehicles, and every other carriage or vehicle used fur the transportation of persons and goods, or either of thein, and bicycles, tricycles, and all other vehicles propelled by manumotive or pedomotive power, or by electricity, steam, gasoline, or other source of energy. (Id., § 326.) In order that the owners shall be liable under section 325 above cited, the owners must be engaged in the carriage of passengers; and an injury must have been done to some third person by a person employed by the owners as driver while driving the " carriage." Except as above stated, the owner of an automobile is not liable for personal injuries caused by the negligent act of a person in his employ, unless such person was at thp time of the injury engaged in the business of his employer. (Clarh v. Buclmohile Co., 107 App. Div. 120; Cunning- ham V. Castle, 127 App. Div. 580.) But the fact of ownership of the auto* mobile, and of injury caused by the negligence of a person employed by the owner to operate it, is sufficient to make out a prima facie case that the chauffeur was acting within the scope of his employment at the time. This may be rebutted by evidence showing that the chauffeur, in disobedience of instructions, took the automobile out for his own pleasure or business. {Stewart v. Baruch, 103 App. Div, 577.) In an action for personal injuries caused by the negligent operation of an automobile, the fact that the vehicle was licensed in the name of the defendant is prima facie evidence that he is the owner and that the cus- todian was engaged -in the owner's service. (Ferris v. Sterling, 214 K". Y. 240.) If the operator of an automobile is the owner's son and is under the age of 18 years, the owner may be liable if he permits such son to run the MOTOE VEHICLES. 195 car in violation of section 282, subd. 2. {SchuUz v. Morrison, 01 Misc. 248, 154 N. Y. Supp. 257.) But the owner is not generally liable for tbo negligence of his adult son driving the car, when the owner is not present and the son is engaged in his own individual business. ( Van Blaricon v. Dodgson, 220 IST. Y. 111.) The owner of an automobile who has rented it to another for hire to use in the business of the latter is not liable for injuries sustained through its negligent operation. (Braverm'an v. Hart, 105 N, Y. Supp. 107.) A collision between a pedestrian and a motor car raises no presumption that the owner of the car was negligent. (Seaman v. MoU, 127 App. Div. 18.) § 9. Violation of lavir. The fact that the driver of an automobile has violated a municipal ordi- nance and that injury results from the violation is generally proof of negligence and renders the driver liable for the injury. But where the injury does not proximately result from the violation of the ordinance, a cause of action cannot be founded thereon. (Linneball v. Levy Dairy Co., 173 App. Div. 861, ICO N. Y. Supp. 114.) And, if the driver of a motor vehicle violates some provision of the statutes governing the operation thereof, he is prima facie liable for any injury resulting therefrom. Thus a violation of subdivision 2 of section 286 of the Highway Law, relative to stopping a car on signal from the driver of a horse, is negligence. {Union Transfer & Storage Co. v. Westcott Exp. Co., 79 Misc. 408, 140 JST. Y. Supp. 98.) And where one operates a motor vehicle in an intoxicated condition contrary to the provisions of subdivision 3 of section 290 of the jilighway Law, and an innocent person is injured in consequence of such violation, a cause of action arises. {Lincoln Taxicah Co. v. Smith, 88 Misc. 9, 150 W. Y. Supp. 86.) The circumstance that a vehicle is on the wrong side of the street is generally sufficient to raise a presumption of negligence, but in some cases the use of the wrong side may be justified by circumstances, as where that side of the street is used to avoid a collision. (Clarke v. Woop, 159 App. Div. 437, 144 K Y. Supp. 595.) But negli- gence can rarely be predicted on a performance of a statutory duty. Thus, the fact that the driver of a car sounded his horn when approaching a pedestrian crossing a street, as required by subdivision 2 of section 286, is not negligence, though the sound causes the pedestrian to become excited and to step back in front of the car. (Wall v. Merhert, 166 App. Div. 608, 152 K Y. Supp. 293.) A violation of subdivision 2 of section 286, relative to stopping on signal from the driver of a horse, is negligence, and renders the driver of the auto- 196 CIVIL- LAW AND PKACTICE. mobile liable for injuries resulting from his failure to stop. (Union Transfer & Storage Co. v. Westcott Express Co., 79 Misc. 408, 140 IST. Y. Supp. 98.) The circumstance that a vehicle is on the wrong side of the road is generally sufficient to raise a presumption of negligence, for a violation of the law of the road is competent evidence on the question of due care; but the use of the wrong side of the road may be justified by circumstances, as when one drives to that side to avoid an imminent col- lision. {Clarhe v. \Yoop, 159 App. Div. 437, 144 N. Y. Supp. 595.) § 10. Contributory negligence of the person injured. The duty to exercise care is not confined to those owning or operating motor vehicles, but extends as well to those who claim damages for personal injuries caused by collision with such vehicles. It is the duty of every person crossing a city street to exercise reasonable care to protect himself from injury by a collision with vehicles traveling thereon ; and if he omits such care, and the omission contributes to an injury received from a passing vehicle, he can maintain no action for the injury. (Hartfield v. Boper, 21 Wend. 615 ; Barker v. Savage, 45 N. Y. 191.) Reasonable care requires in .all cases the exercise of a vigilance pro- portioned to the danger encountered. To enter upon a street crossing iii a city where the moving vehicles are numerous, and a collision with them likely to produce serious injury, without looking in both directions along the street to ascertain whether any are approaching, and if so, their rate of speed, and how far from the crossing, is not only the omission of reason- able care, but an act of rashness. It is also the duty of a pedestrian to look at street and road crossings when there may be danger from approach- ing vehicles although the travel may be comparatively trifling. (Barker V. Savage, 45 K". Y. 191.) But a corresponding degree of care is required of persons operating motor or other vehicles upon the public streets and highways ; and a person crossing a street is entitled to rely upon the pre- sumption that drivers of vehicles would exercise reasonable care to avoid causing injury to persons in the street; and a failure to anticipate thd omission of such care does not render the person crossing guilty of con- tributory negligence. (Caesar v. Fifth Ave. Coach Co., 45 Misc. 331.) A person, whether adult or infant, has the right to assume that a person in the operation of an automobile would exercise care and would respect the rights of pedestrians when rounding the corner of a street. He has the right to assume that the operator of an automobile will slow down and operate his machine with care, and that he will take notice that people may be at the crossing or entering thereon. (Buscher v. N. T. Transportor Hon Co., 106 App. Div. 493.) MOTOE VEHICLES. 197 On the same principle the owner of an automobile has the right to assume that a municipality has performed its duty of seeing that its streets are at all times kept in a reasonably safe condition for travel thereon ; for, although a city owes no special duty to those who ride in automobiles, and is not an insurer of travelers using its streets, it is at all times bound to exercise due care to keep the highway reasonably safe and free from dangerous defects. {Corcoran v. City of New York, 188 iT. Y. 131.) A passenger in an automobile, who has nothing to do with the manage- ment or control of the machine, is not chargeable with the negligence of the chauffeur. {Ward v. Brooklyn Heights R. B. Co., 119 App. Div 487, 104 N. Y. Supp, 95 ; Noakes v. N. Y. Cent. & II. B. R. B. Co., 121 App. Div. 716; Bead v. N. Y. Cent. & H. B. R. R. Co., 123 App. Div. 228.) But he is chargeable with his own contributory negligence, if, in approach- ing a railroad track in a locality known to him, in a car driven by another, he fails in his duty to look and listen for approaching trains so as to pre- vent, so far as he may be able, the chauffeur from crossing the track in front of a moving train. (Id.) The age and sex of the passenger may be a matter of consideration in determining whether the failure of the passenger to look and listen when the automobile is nearing a railroad track, and to warn the chauffeur of the approach of a train, is contributory negligence, and the circumstances surrounding may be such as to require the submission of this question to a jury. {Noakes v. N. Y. Cent. & H. R. R. R. Co.. 121 ^. Y. 716.) The rule is well settled that a violation of a statute or municipal ordi- nance by those operating a train, car or vehicle does not in itself or of itself constitute negligence. {Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488; McCarragher v. Proal, 114 App. Div. 470.) The jury must deter- mine from all the circumstances, including the fact of the violation of the statute or municipal ordinance, whether the party violating it was guilty of contributory negligence. On the other hand, while third persons have a right to assume that statutes and ordinances will be observed, that does not relieve them of exercising care and caution for their own safety, and when they observe, or in the exercise of ordinary care should observe, that the statute or ordinance is not being, obeyed, they are not justified in proceed- ing and asserting their rights, and if they do so, they cannot recover any damages they may sustain. ^McCarragher v. Proal, 114 App. Div, 470.) § 11. The Motor Vehicle Law. Sections 280-293 of the Highway Law particularly refer to motor vehicles used on the public highways. Its provisions are as follows : 198 CIVIL LAW AND FEACTICE. THE MOTOR VEHICLE LAW. Aelicle 11 of the Highway Law. MOTOB VEHICIiEa. Section 280. Application of article. 201. Definitions. 282. Eegistration of motor vehicles; age of operator; fees; renewals. 282-a. Auto trucks and trailers in excess of certain weights, heights and wddths. 283. Distinctive number ; form of num'ber plates. 283-a. Issuance of plates by county clerks ; fee for same. 284. Eegistration and mimiber plates for manufacturers and dealers. 284-a. Limited use of dealers' number plates by vendee. 285. Exemption of nonresident owners. 286. Equipment ; rules of the road. 286-a. Transparently illuminated rear plates. 287. Speed permitted. 287-a. Speed regulations on grounds of state institution. 288. Local ordinances prohibited. 288-a. Limitation on scope of local ordinan<;e; report of violations to conunig- sioner of highways. 289. License of operators and chauffeurs ; renewals. 289-a. Eevooation and reissuance of licenses. 290. Puniishment for violation; procedure. 290-a. Siuspension and revocation of a license of operator or chauffeur. 290-b. Certificate by magistrate. 291. Ddsposition of registration fees; fines and penalties. 292. Bates of toll on motor veihicles. 293. Acts repealed. 294. Delegation of powers to director of motor vehicle bureau. § 280. Application of article. Except as herein otherwise expressly provided, this article shall be exclusively controlling: 1. Upon the registration, numbering and regulation of motor vehicles, and the licens- ing and the regulation of chauffeurs and operators; 2. On their use of the public highways, and 3. On the accessories used upon motor vehicles and their incidents and the speed of motor vehicles upon the public highways; 4. On the punishment for the violation of any of the provisions of this article. § 281. Definitions. The term " motor vehicle " as used in this articlei except where otherwise expressly provided, shall include all vehicles propelled by any power other than muscular power, except motor bicycles, motor cycles, traction enfines, road rollers, fire wagons and engines, police patrol wagons, ambulances used principally for charitable purposes and such vehicles as run only upon rails or tracks. The term " local authorities " shall MOTOE VEHICLES. 199 include all officers of counties, cities, boroughs, towns or villages, as well as all boards, committees and other public officials of such counties, cities, boroughs, towns or Tilla^ges. The term " chauffeur " shall mean any person operating or driving a motor vehicle, as an employee or for hire. The term " operator " shall mean any person, other than a chauffeur, who operates a motor vehicle in a county wholly included in a. city. The term " state " as used in this article, except where otherwise expressly pro- vided, shall also include the territories and the federal districts of the United States. The term " owner " shall also include any person, firm, association or corporation rent- ing a motor vehicle or having the exclusive use thereof, under a lease or otherwise, for a period greater than thirty days. The term " public highway " shall include any high- way, county road, state road, public street, avenue, alley, park, parkway or public place in any county, city, borough, town or village, except any speedway which may have been or may be expressly set apart by law for the exclusive use of horses. and light carriages. The term " omnibus," as used in this article, shall include any motor vehicle held and used for the transportation of passengers for hire. § 282. Registration of motor vehicles; age of operator; fees; renewals. 1. Eegistration by owners. Every owner of a motor vehicle which shall be operated or driven upon the public highways of this state shall, except as herein otherwise expressly provided, cause to be filed, by mail or otherwise, in the office of the tax com- mission a verified application for registration on a blank to be furnished by the tax commission for that purpose, containing: (a) A brief description of the motor vehicle to be registered, including the name of the manufacturer and factory number of such vehicle, the character and amount of the motive power stated in figures of horse power in accordance with the rating established by the Association of Licensed Automobile Manufacturers; (b) the name, age, residence, including county and business address, of the owner of such motor vehicle; (c) provided that, if such motor vehicle is used or to be used for purposes mentioned in subdivision six-a of this section, the applicant shall 60 certify, and also certify as to the weight of the truck and carrying capacity, or in the case of an omnibus the seating capacity, or if the omnibus is to be operated wholly within a municipality pursuant to a franchise other than a franchise express or implied in articles of incorporation, upon certain- streets designated in such franchise, those facts shall also be certified, and a certified copy of such franchise furnished to the tax commission. Every owner of a vehicle, commonly known as a "trailer," for the transportation of goods, wares and merchandise, not propelled by its own power, to be drawn on the public highways by a motor vehicle operated thereon shall also make application for the registration thereof in the manner herein provided for an appli- cation to register a motor vehicle, w.ithout the statement relating to motive power; but the application shall set forth the combined weight and carrying capacity of such trailer. The tax commssion shall require proof, in the application for registration, or otherwise, as such commission may determine, that the motor vehicle for which registration is applied for, is equipped with lights conforming in all respects to the requirements of this article, and no motor vehicle shall be registered unless it shall appear by such proofs Ihat such motor vehicle is equipped with proper lights as aforesaid. 2. Restriction on operation. No person shall operate or drive a motor vehicle who is under eighteen years of age, unless such person is accompanied by a duly licensed chauffeur or the owner of the motor vehicle being operated. No person shall ojierate or drive a motor vehicle in a county wholly included within a city unless such person is a duly licensed chauffeur or operator whether the owner of such vehicle or other- wise; provided, however, that a person of the age of eighteen years and upwards who shall reside outside of such county and within the state may so operate or drive, except as a chauffeur, for not to exceed ten days in any year without being so licensed. The 200 CIVIL LAW AND PKACTICE. tax commission may, however, in its discretion, grant a written permit to any person desiring to fit himself to so operate or drive a motor vehicle, within such county. Such permit shall not continue for more than ten days from its date, but may be renewed from time to time not to exceed a total of thirty consecutive days. The holder thereof shall not so operate or drive unless at all times under the immediate super- vision and control of an operator or chauffeur duly licensed under this article. Such holder, operator or chauffeur shall be liable for any violation of this act or of any local ordinance, rule or regulation permitted thereunder while so operating. The tax commission may make any suitable regulations concerning the issue and use of such permits and may demand a fee of fifty cents for each such permit or renewal thereof. 3. Registration book. Upon the receipt of an application for registration of a motor vehicle, as provided in this article, the tax commission shall file such application in its office at Albany, and in cities of the first class, and such other places within the state of New York as it may designate and register such motor vehicle or vehicles, with the name, residence and business address of the owner, together with the facts stated in such application, in a book or index to be kept for the piu'pose, under the distinctive number assigned to such motor vehicle by the tax commission, which book or index shall be open to public inspection during reasonable business hours. 4. Certificate of registration. Upon the filing of such application and the payment of the fee hereinafter provided, the tax commission shall assign to such motor vehicle a distinctive number and, without expense to the applicant, issue and deliver in such manner as the tax commission may select to the owner a certificate of registration; in such form as the tax commission shall prescribe, and two number plates at a place within the state of New York named by the applicant in his application. In the event of the loss, mutilation or destruction of any certificate of registration, provided for in this article or of any number plate provided for in this section or of any license or badge, the owner of a registered motor vehicle or manufacturer, or dealer, or operator, or chauffeur, as the case may be, may obtain from the tax commission a duplicate thereof upon filing in the office of the tax commission an affidavit showing such fact and the payment of a fee of one dollar. It shall be the duty of every owner, operator or chauffeur holding a certificate as such from the tax commission to notify the tax commission in writing of any change of residence of such person within ten days after such change occurs. 5. Times for registration and reregistration. Registration applied for and certificates issued on such application or under any application made prior to January first, nine- teen hundred and twenty-two, shall expire on the latter date. Registration thereafter shall be renewed annually in the same manner and upon payment of the same annual fee as provided in this section for registration, to take effect on the first day of January, in each year beinning with such date in the year nineteen hundred and twenty-two; and the certificates of registration issued thereunder or issued between any such dates shall expire on the succeeding first day of January. 6. Registration fees. The following fees shall be paid to the tax commission upon the registration or reregistration of a motor vehicle in accordance with the provisions of this article: twenty -five cents per horse power for the rated horse power of such motor vehicle; if the registration or reregistration occur in the calendar year in which such motor vehicle was manufactured or within three years after the expiration of such year, the additional fee of forty cents for each one hundred dollars, or major fraction thereof, of the listed price of such motor vehicle fully equipped; if at the time of such registration or reregistration, three years but not more than five years shall have expired since the expiration of the calendar year in which such motor vehicle was manufactured, the additional fee of twenty cents for each one hundred dollars, or major fraction thereof, of the listed price of such motor vehicle fully equipped; for MOTOE VEHICLES. 201 each subsequent registration or reregistiation of such motor vehicle the additional fee of ten cents for each one hundred dollars, or major fraction thereof of the list price of such motor vehicle fully equipped; provided, however, that the total fees at any time for the registration or reregistration of a six, eight or twelve cylinder motor vehicle ' shall be not less than ten dollars, and for the registration or reregistration of any other motor vehicle shall be not less than five dollars; provided further, that if a motor vehicle is originally registered after July first in any year, the register fee for that year shall be one-half of the fee herein provided for; and further provided that for motor vehicles which are used or to be used for purposes mentioned in subdivision six-a of this section, the fee for such registration shall be as therein prescribed. The pro- visions hereof with respect to the payment of registration fees shall not apply to motor vehicles owned or controlled by the state, a city, county, village or town or any of the departments thereof, but in other respects shall be applicable. 6-a. Registration fees for auto trucks and omnibuses. The registration fees to be paid upon the registration or reregistration, in accordance with the provisions of this article, of motor vehicles used as omnibuses for the transportation of passengers and of motor vehicles constructed or specially equipped for the transportation of goods, wares and merchandise, commonly known as auto trucks or light delivery cars are hereby established as follows: Schedule for Motor Vehicles Used as Omnibuses for the Transportation of Passengers. For each such vehicle having a seating capacity for passengers of five passengers or less, the annual fee of fifteen dollars. For each such vehicle having a seating capacity for passengers of not less than six passengers, nor more than seven passengers, the annual fee of twenty-four dollars and fiity cents. For each such vehicle having a seating capacity for passengers of not less than eight passengers, nor more than ten passengers, the annual fee of thirty dollars and fifty cents. For each such vehicle having a seating capacity for passengers of not less than eleven passengers, nor more than sixteen passengers, the annual fee of forty-three dollars. For each such vehicle having a seating capacity for passengers of not less than seventeen passengers, nor more than twenty passengers, the annual fee of fifty-two dollars. For each such vehicle having a seating capacity for passengers of not less than twenty-one passengers, nor more than twenty-two passengers, the annual fee of fifty- five dollars. For each such vehicle having a seating capacity for passengers of not less than twenty-three passengers, nor more than twenty-six passengers, the annual fee of sixty-one dollars and fifty cents. For each such vehicle having a seating capacity for passengers of not less than twenty-seven passengers, nor more than thirty passengers, the annual fee of sixty- seven dollars and fifty cents. For each such vehicle having a seating capacity for passengers in excess of thirty passengers, the fee of sixty-seven dollars and fifty cents, and the additional fee of two dollars for each passenger (measured by seating capacity) in excess of thirty passengers. Provided that if any such motor vehicle used as an omnibus for the transportation of passengers, and for which a fee is herein provided, is originally registered after July first in any year, the register fee for that year shall be one-half of the fee herein provided for such motor vehicle; and provided further that upon the registration or reregistration of any omnibus mentioned herein the number plates to be issued therefor 202 CIVIL. LAW AND PKACTICE. Bhall, upon the payment of an additional fee of ten dollars for each omnibus, be the same in form as is issued for passenger motor vehicles which are not omnibuses. The foregoing schedules shall not apply to omnibuses operated pursuant to a franr chise other than a franchise express or implied in articles of incorporation over streets designated in such franchise •wholly within the municipality, and for any such omnibus, without regard to the seating capacity, the annual fee shall be ten dollars; but if any such omnibus shall be also operated outside of the municipality then the foregoing schedule of fees shall apply thereto; and provided further that if any such omnibus for which a ten-dollar fee is herein provided is originally registered after July first in any year the fee for that year shall be one-half the fee herein provided for such omnibus. Schedule for Motor Vehicles, Cocimonly Known ss Aato Trucks or Light Delivery Cats, XTssd for the Transportation of Goods, Wares and Merchandise. For each such vehicle having a combined weight of truck and carrying capacity of two tens or less, the annual fee of ten dollars. For each such vehicle having a combined weight of tn'ck and carrying capacity of more than two tons, and not more than three tons, the annual fee of fifteen dollars. For each such vehicle having a combined weight of truck and carrying capacity of more than three tons, and not more than four tons, the annual fee of twenty dollars. For each such vehicle having a combined weight of truck and carrying capacity of more than four tons, and not more than five tons, the annual fee of twenty-five dollars. For each such vehicle having a combined weight of truck and carrying capacity of more than five tons, and not more than six tons, the annual fee of thirty dollars. For each such vehicle having a combined weight of truck and carrying capacity of more than six tons, and not more than seven tons, the annual fee of thirty-five do'.lars. For each such vehicle having a combined weight of truck and carrying capacity of more than seven tons, and not more than eight tons, the annual fee of forty dollars. For each such vehicle having a combined weight of truck and carrying capacity of more than eight tons, and not more than nine tons, the annual fee of forty-five dollars. For each such vehicle having a combined weight of truck and carrying capacity of more than nine tons, and not more than ten tons, the annual fee of fifty dollars. For each such vehicle having a combined weight of truck and carrying capacity of more than ten tons, and not more than eleven tons, the annual fee of fifty-five dollars. For each such vehicle having a combined weight of truck and carrying capacity of more than eleven tons, and not more than twelve tons, the annual fee of sixty dollars. For each such vehicle having a combined weight of truck and carrying capacity of more than twelve tons, and not more than thirteen tons, the anntial fee of sixtyrfive dollars. For each such vehicle having a combined weight of truck and carrying capacity of more than thirteen tons, and not more than fourteen tons," the annual fee of seventy dol'ars. For each such vehicle having a combined weight of truck and carrying capacity in excess of fourteen tons, the fee of seventy dollars, and the additional fee of ten dollfirs for each ton in excess of fourteen tons. Provided that if any such motor vehicle, commonly known as a truck, used for the transportation of goods, wares and merchandise and for which a fee is herein pro- vided, is originally registered after July first in any year, the register fee for that year shall be one-half the fee herein provided for such motor vehicles. 6-b. Registration fees for trailers. The foregoing provisions of this section in rela- tion to registration books and registration, certificates of registration, number plates, duplicates of certificates and number plates, times of registration and reregistration MOTOE VEHICLES. 203 and the duration thereof, for motor vehicles, shall apply also to trailers. The following fees shall be paid to the tax commission upon the registration or reregistration of a trailer in accordance with the provisions of this article: For each trailer having a combined weight of truck and carrying capacity of two tons or less, the annual fee of five dollars. For eajch trailer having a combined weight of truck and carrying capacity of more than two tons and not more than five tons, the annual fee of ten dollars. For each trailer having a combined weight of truck and carrying capacity of more than five tons and not more than seven tons, the annual fee of fifteen dollars. For each trailer having a combined weight of truck and carrying capacity of more than seven tons and not more than ten tons, the annual fee of twenty dollars. For each trailer having a combined weight of truck and carrying capacity of more than ten tons and not more than fourteen tons, the annual fee of thirty dollars. For each trailer having a combined weight of truck and carrying capacity in excess of fourteen tons, the annual fee of thirty dollars and the additional fee of five do'lars for each ton in excess of fourteen tons. Provided that if any such trailer for which a fee is herein provided, is originally registered after July first in any year, the register fee for that year shall be one -half of the fee herein provided for such vehicles. 7. Fees in lieu of taxes. The registration fees imposed by this article upon motor vehicles, other than those of manufacturers and dealers, shall be iu lieu of all taxes, general or local, to which motor vehicles may be subject. 8. Sale and registration by vendee. Upon the sale or transfer of a motor vehicle registered in accordance with this section, the vendor shall endorse upon the certificate of registration of such motor vehicle the name and address of the vendee and the date of delivery, and shall sign such endorsement and shall deliver the same to the vendee together with a statement of transfer of ownership, said statement to be furnished by the tax commission and shall be in such form and executed in such manner as the tax commission shall prescribe. The vendee shall complete the execution of such state- ment and within ten days after the receipt thereof file the same with the tax com- mission. Upon filing such statement duly verified such vendee shall pay to the tax commission a fee of one dollar, and upon receipt of such statement and fee the tax commission shall file such statement in its office and note upon the registration book or index such change in ownership. Such motor vehicle may be operated and driven on the public highways of this state under the registration certificate issued to the vendor for a period of ten days from the date endorsed thereon by the vendor. At the expiration of said period of ten days the said registration shall be suspended and the operation of such motor vehicle there- under is prohibited. It shall be unlawful for any person to deliver or offer to deliver or to accept or offer to accept a transfer of any motor vehicle unless there be produced and delivered to the vendee the certificate of registration issued for such vehicle endorsed as hereinbefore required. A violation of this provision shall be a misde- meanor punishable by a fine not exceeding one hundred dollars or by imprisonment not exceeding sixty days, or by both, in the discretion of the court. 9. The provisions of this section relating to omnibuses shall not apply to a motor vehicle used for the transportation of children to and from a school outside of a city provided such motor vehicle is not otherwise used in the transportation of passengers or goods, wares and merchandise for hire. § 282-a. Auto trucks and trailers in excess of certain weights, heights and widths. After this section takes effect no person shall operate or drive on the public high- ways of the state outside of cities an auto truck or trailer having a width of body inclusive of load of more than eight feet, a height from pavement to top of vehicle or 204 CIVIL LAW AND PEACTICE. load of more than twelve feet six inches nor having a combined weight of truck and load or of trailer and load of more than twenty-five thousand pounds, the load to be so distributed that there shall not be more than eight hundred pounds per inch in width of tire on any one wheel; provided, however, that racks for carrying empty barrels, baskets and boxes, and for carrying hay, straw and unthreshed grain, may have a width of not to exceed eight feet at the base of the rack and twelve feet at the top. The width of rubber tires, for the purposes of this section, shall be ascertained by measuring width of the tire base channel or between the flanges of the metal rim. § 283. Distinctive number; form of number plates. 1. Distinctive number must be carried on motor vehicles. No person shall operate or drive a motor vehicle on the public highways of this state unless such vehicle shall have a distinctive number assigned to it by the tax commission and a number plate issued by the tax commission with a' number, and other identification matter if any, corresponding to that of the certificate of registration conspicuously displayed, one on the front and one on the rear of such vehicle, each securely fastened so as to prevent the same from swinging. 2. Number plates to be changed annually. Such number plates shall be of a dis- tinctly diff'erent color each year, and there shall be at all times a marked contrast between the color of the number plates and that of the numerals or letters thereon. 3. Form of number plate. Such number plate shall be of metal, at least six inches wide and not less than fifteen inches in length, on which there shall be the initials "N. Y.," and there shall be the distinctive number assigned to the vehicle set forth, in numerals four inches long, each stroke of which shall be at least five-eighths of an inch in width. No vehicle shall display the number plates of more than one state at a time, nor shall any plate be used other than those issued by the tax commission. 4. Provisions relating to trailers. No person shall operate or drive a motor vehicle drawing a trailer on the public highways of the state, unless such trailer shall have a. distinctive number assigned to it by the tax commission and a number plate issued by such commission with a number corresponding to that of the certificate of regis- tration displayed and fastened in the manner provided for number plates on a motor vehicle, nor unless such person sha.ll also have with him the certificate of registration of such trailer. Such certificate shall be exhibited on demand to any peace officer or representative of the tax commission. The provisions of subdivisions three and four of this section relating to number plates for a particular motor vehicle shall apply to number plates for any such trailer, except that the word " trailer " shall also appear on such plates. § 283-a. Issuance of plates by county clerks; fee for same. The clerk of each county, except the county of Albany or a county wholly included within a city, shall act aa the agent of the tax commission in the Issuance of number plates for passenger and commercial cars, and such other plates and badges as the state tax commission may direct. Each such clerk shall remit to the tax commission at the close of each day all fees collected by him for motor vehicle registrations and licenses together with a complete record of such registrations and licenses issued during the day. Each county clerk shall be entitled to a fee of ten cents for each registration or license issued, which shall be paid by the county treasurer from the portion of the motor vehicle registration or license money returned by the state to the county. § 284. Registration and number ylates for manufacturers and dealers. 1. Every person, firm, association or corporation manufacturing or dealing in motor vehicles, may, instead of registering each motor vehicle so manufactured or dealt in, MOTOR VEHICLES. 205 apply to the tax commission for a single registration as manufacturer or dealer, as the ease may be, and for number plates. Tlie application shall be upon a blank to ba furnished by the tax commission and shall be verified. It shall contain a brief descrip- tion of each style or type of motor vehicle manufactured or dealt in by the applicant, including the character of the motor power stated in figures of horse power in accord- ance with the rating established by the Society of Automobile Engineers, and if an auto truck the combined weight and carrying capacity and if a motor vehicle adapted specially for use as an omnibus the seating capacity, and the name and residence, including county and business address, of such manufacturer or dealer. The appli- cation shall be accompanied with the payment of a registration fee of fifteen dollars. Two number plates of the same kind shall constitute a set, and the fee for each set shall be five dollars; except that the first set of number plates shall be furnished with- out the payment of any fee in addition to the registration fee. The application shall be filed and registered in the oflBce of the tax commission, in the same manner as pro- vided in this chapter for the registration of a motor vehicle. The tax commission shall thereupon assign a distinctive manufacturer's or dealer's registration number to the applicant and issue to the applicant a certificate of such registration with and for each separate set of number plates. Each certificate shall, in addition to the general regis- tration number, recite any and all distinctive words, numbers or marks on the set of plates for which such certificate is issued. The tax commission shall also promptly deliver to the applicant, at a place within the state to be designated by him in the application, the set or sets of number plates to which he is entitled. The applicant shall be provided with the one set furnished with his application and such additional sets, not exceeding four, for which he shall have paid the fees above provided. Each number plate shall be of metal, and the manufacturer's or dealer's general registration number shall be set forth thereon together with the initials "N. Y." The size of a manufacturer's or dealer's plate and of the numerals of such general registration num- ber shall be the same as for a number plate described in section two hundred and eighty-three. All of such plates may contain such other identification matter as the tax commission may deem proper. The provisions of subdivision two of section two hundred and eighty-three shall apply to such number plates. Additional number plates, in sets, with the corresponding certificates, may be obtained from the tax commission' at any time, upon the payment of the fee above provided; but the tax commission may limit the total number of dealer's plates to be issued to any particular dealer in excess of five. A duplicate of any manufacturer's or dealer's number plate, in case of loss or destruction, which fact shall be proven by the affidavit of the manufacturer or dealer, may be obtained from the tax commission for two dollars and fifty cents. 2. Except as otherwise provided in the next section, no person shall operate or drive, or cause to be operated or driven, on the public highways a motor vehicle to> which any such manufacturer's or dealer's number plates are attached unless the manufacturer or dealer is the owner or entitled to the possession of such vehicle. 3. Registration under this section shall be renewed and new plates procured annually, to take effect on the first day of January of each year. All registrations under this section, including original registrations made after January first of any year, shall expire on the first day of January following the time the registration takes effect. 4. The provisions of this section shall apply to trailers and to manufacturers thereof and dealers therein; and for the purpose of applying such provisions, a trailer shall be deemed to be a motor vehicle. 5. The privileges of this section shall not extend to any motor vehicle operated or driven by a manufacturer or dealer for pleasure purposes for private use or for hire. 206 CIVIL LAW ANJ) PEACTICE. § 284-a. Limited use of dealer's number plates by vendee. Upon the sale of a motor vehicle by registered dealer, the vendee shall be allowed to operate the same upon the public highways for the period of five days after taking possession thereof, without carrying number plates issued upon a registration under section two hundred and eighty-two, if the motor vehicle shall have attached thereto and displayed thereon, in the manner provided in section two hundred and eighty-three, a set of dealer's number plates issued to such dealer under section two hundred and eighty-four, and if a proper application for registration and number plates for such vehicle under the provisions of section two hundred and eighty-two shall have been mailed or presented to the secretary of state, accompanied with payment of the required fee, within twenty-four hours after he has taken possession thereof. No person shall operate or drive upon the public highways any motor vehicle on which is fastened or displayed any such dealer's number plates after a sale of such vehicle by the dealer except in compliance with the foregoing provisions. A dealer who sells a motor vehicle shall not deliver to or permit tO' be taken by the vendee any such number plates without first mailing to the tax commission u verified statement, upon a blank to be furnished by it, setting forth the following facts: A description, by general and distinctive numbers and characters thereon, of the plates and certificate to be loaned; the name arid residence, including county and business address, of the vendee of the motor vehicle; a brief description of the motor vehicle sold, including the name of the manufacturer and factory number; the character and amount of the motor power stated in figures of horse power in accordance with tlie rating established by the Society of Automobile Engineers, or, if it be an auto truck, tlie combined weight of the truck and carrying capacity. The dealer shall also state whether he lias knowledge or is informed that the motor vehicle is to be used as an omnibus, and if he states that he has knowledge or information that it is to be so used he shall also specify the seating capacity of the motor vehicle sold. A vendee to whom number plates are delivered or by whom they are held under the provisions of this section shall return the same and the accompanying registration certificate, to the dealer before the expiration of six days after he took possession of the motor vehicle purchased. If number plates so delivered or held, or such certificate, are not returned within the time above limited, the dealer shall immediately notify the tax commission of that fact by mail describing the plates according to the general and distinctive numbers and characters thereon. The provisions cf this section shall apply also to the eale of a trailer and to the use liy the vendee of dealer's number plates on the trailer sold; and for the purpose of applying such- provisions a trailer shall be deemed to be a motor vehicle. § 285. Erempticn cf nonresidsrt cwneis. The provisions of the foregoing sections relative to registration and display of regis- tration numbers shall not apply to a motor vehicle owned by a nonresident of this state, other than a foreign corporation doing business in this state, provided that the owner thereof shall have complied with the provisions of the law of the foreign country, state, territory or federal district of his residence relative to registration of motor vehicles and the display of registration numbers thereon, and shall conspicuously display his registration numbers as required thereby. The provisions of this section, however, shall be operative as to a motor vehicle owned by a nonresident of this state only to the extent that under the laws of the foreign country, state, territory or federal district of his residence like exemptions' and privileges are granted to motor vehicles duly registered under the laws of and owned by residents of this state. MOTDE vehicles. 207 § 236. Equipment, rules of the road. 1. Every motor vehicle, operated or driven upon the public highways of the state, fihall be provided with adequate brakes and steering mechanism in good worlting order and BuiF-cient to control such vehicle at all times when the same is in use, and a suit- able and adequate horn or other device for signaling, which horn or device shall pro- duce a sound suiiLciently loud to serve as a danger warning but shall not be used other than as a reasonable warning nor be unnecessarily loud or harsh. Every such motor vehicle, also, shall have a suitable muffler or device to prevent unnecessary noise from exhaust gases, and the use of so-called " cut outs " is prohibited. 2. Every motor vehicle, driven or operated upon the public highways of the state during the period from one-half hour after sunset to one-half hour before sunrise, shall display when running at least two lighted lamps on the front, one on each side of approximately equal power, not exceeding twenty-four candle power, unless a greater candle power shall be prescribed as provided by subdivision six, and one lighted lamp on the rear of such vehicle, which shall also display a red light visible from the rear. The rays of such rear light shall shine upcn tha number plate carried on the rear of such vehicle in such manner as to render the numerals thereon legible for at least fifty feet in the direction from which the motor vehicle is proceeding. The front lights shall be so arranged, adjusted and operated, as to avoid dangerous glare or dazzle, and so that no dangerous or dazzling light projected to the left of the axis of the vehicle when measured seventy-five feet or more ahead of the lamps, shall rise about forty- two inches on the level strfsce en which the vehicle stands. They shall also give sufficient side illumination to reveal any person, vehicle or substantial object ten feet to both sides of said vehicle, at a point ten feet ahead of the lamps. If, in addition to headlights, any such motor vehicle is equipped with any auxiliary light, projecting device or devices, other than the rear light, such auxiliary lights shall be subject to all the restrictions of this section. 3. Except as otherwise provided in this section, such front lights shall be visible at least two hundred and fifty feet in the direction in which the motor vehicle is pro- ceeding, and, when the vehicle is proceeding on a street or highway not so lighted as to reveal any person^ vehicle or substantial object on such street or highway straight ahead of such motor vehicle for a distance of at least two hundred feet, such front lights shall be sufficient to reveal any person, vehicle or substantial object on the road straight ahead of such motor vehicle for a distance of at least two hundred feet. This subdivision shall not apply to the motor trucks described in subdivision four of this section. 4. Such front lights on motor trucks of two tons carrying capacity or over, which are so governed or mechanically constructed or controlled that they cannot exceed a speed of fifteen miles per hour, shall he visible at least two hundred feet, in the direction in which the motor vehicle is proceeding, and when the vehicle is proceeding on a street or highway not so lighted as to reveal any person, vehicle or substantial object on the street or highway straight ahead pf such motor vehicle for a distance of at least two hundred feet, such front lights shall be sufficient to reveal any person, vehicle or substantial object on the road straight ahead for a distance of seventy-five feet. 5. Motor vehicles when standing upon the street or highway must display two lights in front and a red light in the rear which shall be visible from a point at least one hundred feet distant, provided, however, upon the end of the motor vehicle against the curb and where such lights are dispensed with by law or ordinance no light is required. 6. Any person may submit to the tax commission a. device for controlling the front lights of motor vehicles so that they shall comply with the provisions of this section while the vehicle is proceeding, together with ah application that such device be tested 208 CIVIL LAW AND PRACTICE. as prescribed hy this section. Sucli applicant shall pay to the tax commission a fee of fifty dollars. Thereupon the tax commission shall upon notice to the manufacturer thereof, submit such device upon s.uch uniform specifications as he may from time to time prescribe and promulgate to the United States bureau of standards or to any duly qualified testing laboratory not interested, directly or indirectly, in any lamps or headlighting apparatus or to a similarly disinterested qualified technical expert or experts from the physical laboratory of a university or technical school within the state of New York, under the jurisdiction of the university of the state of New York, with a request that it be tested as to its compliance with the provisions of this sec- tion; and the tax commission may also submit such device to such practical road test as it deems proper. Upon notice from such bureau, laboratory or technical expert or experts that such test has been made and that such device when properly applied substantially complies with the provisions of this section and suggesting the maximum candle power to be used therewith, the tax commission may issue a certificate to the applicant describing the device and certifying that such test has been made and that the device when so applied complies with the provisions of this section and prescribing the said maximum candle power to be used therewith. The expense of such test shall be paid from the fee collected from the applicants, and the balance of such fee, if any, shall be paid into the state treasury. 7. Any person, firm or corporation, who may be dissatisfied with the findings of such testing laboratory, expert or experts, shall have the right of appeal to the United States bureau of standards upon payment of the same fee hereinabove prescribed, whosei decision shall be final. 8. A person operating or driving a motor vehicle shall, on signal by raising the hand, from a person riding, leading or driving a horse or horses or other draft animals, bring such motor vehicle immediately to a stop and, if traveling in the opposite direction, remain stationary so long as may be reasonable to aUow such horse or animal to pass, and, if traveling in the same direction, use reasonable caution in thereafter passing such horse or animal; provided that, in case such horse cr animal appears badly frightened or the person operating such motor vehicle is so signaled to do, such person shall cause the motor of such vehicle to cease running so long as shall be reasonably necessary to prtvert accident atd insure the safety of others. In approaching or passing a car of a street railway which has been stopped to al'.ow passengers to alight or «mbark, the operator of every motor vehicle shall slow down and if it be necessary for the safety of the public he shall bring said vehicle to a full stop. Upon approach- ing a pedestrian who is upon the traveled part of any highway and not upon a side- walk, and upon approaching an intersecting tighivray or a curve or a corner in a. highway where the operator's view is obstructed, every person operating a motor vehicle shall slow down and give a timely signal with his bell, horn or other device for signaling. 9. Whenever a person operating a motor vehicle shall meet on a public highway any other person riding or driving a horse or horses or other draft animals or any other vehicle, the person so operating such Snotor vehicle shall seasonably turn the same to the right of the center of such highway bo as to pass without interference. Any such person so operating a motor vehicle shall, on overtaking any such horse, draft animal or other vehicle, pass on the left side thereof, and the rider or 'driver of such horse, draft animal or other vehicle shall, as soon ais practicable, turn, to the right so as to allow free passage on the left. Any such person so operating a motor vehicle shall, at the intersection of public highways, keep to the right of the intersection of the centers of such highways when turning to the right and pass to the right of such intersection when turning to the left. 10. Every motor truck, omnibus and all motor commercial vehicles of one ton MOTOR VEHICLES. 209 capacity or more, operating upon the public tigliwayB outside of cities of the first and second class, shall be equipped with a mirror or other reflecting device so adjusted or adjustable that the operator of isuch truck shall have a clear and full view of the road and condition of traffic behind such truck. § 286-a. Transparently illuminated rear plates. Instead of the ordinary rear number plate required by section two hundred and eighty-six of this chapter, a rear plate may be used on motor vehicles other than motor trucks, so constructed as to permit of the attachment and use therewith of a standard illuminating device for transparently illuminating such plate, but otherwise conform- ing to the requirements of section two hundred and eighty-six of this chapter, if the numerals on such plate are legible for a distance of at least one hundred feet in the ^ay time and for a like distance when transparently illuminated at night. Any person or corporation may submit to the tajc commdssion a device for transparen/tly illuminat- ing such a rear license plate. If the tax commission be satisfied that the device so submitted can be readily attached and is adequate to so transparently illuminate such plajte that the numerals thereon will be legible for a distance of at least one hundred ■feet, it may approve the same by a certificate filed in its office, and such device shall thereupon be knowm as a standard illtiminating device. Every illuminating device used for the purpose of illuminating a rear plate as authorized by this section shall be marked or stamped " approved by the tax commission." As soon as one or more of such standard illuminating devices shall have been approved by the tax commission it shall, upon application, when the number plates for a current year are issued, issue a rear number plate as provided by this section in substitution for the ordinary rear number plate issued by the tax commission. The tax commission shall also, upon application, issue a rear number plate as provided by this section, in exchange for a rear number plate theretofore issued, upon payment of the actual cost of such new plate. The provisions of section two hundred and eighty-six of this chapter that the rays of the rear lamp shaill shine upon the number plate carried upon the' rear of a motor vehicle in such manner as to render the numerals thereon legible for at least fifty feet in the direction from which the motor vehicle is proceeding shall not apply to a. motor vehicle equipped with a rear number plate transparently illuminated by a standard illuminating device, as authorized by this section. § 287. Speed permitted. Every person operating a motor vehicle on the public highway of this state shall drive the same in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life or limb of any person; provided, that a rate of speed in excess of thirty miles an hour for a distance of one-fourth of a mile shall be presumptive evidence of driving at a rate of speed which is not careful and prudent. § 287-a. Speed regulations on grounds of state institution. The board of managers of a state hospital or state charitable institution may adopt a rule limiting the speed of motor vehicles on the grounds of such hospital or insti- tution to not more than fifteen miles per hour; arid shall cause notice of such speed liinit to be posted at the entrance or entrances to such grounds and at other appro- priate points thereon. Any person who shall operate a motor vehicle upon the grounds of such hospital or institution at greater speed than the speed specified in such notice shall be deemed to have violated this seetion. 210 CIVIL LAW AND PEACTICE. § 288. Local oidinances prohibited. Except as herein otherwise provided, local authorities shall hai-e no power to pass, enforce or maintain any ordinance, rule or regulation requiring from any owner, operator or chauffeur to whom this article is applicable any tax, lee, license or permit for the use of the public highways, or excluding any such owner, operator or chauffeur from the free use of such public highways, excepting such driveway, speedway or road as has been or may be expressly set apart by law for the exclusive use of horses and light carriages or in any other way respecting motor vehicles or their speed upon or use of the public highways; and no ordinance, rule or regulation contrary to or in anywise inconsistent with the provisions of this article, now in force^ or hereafter enacted, shall have any effect; provided, however, that the power given to local authorities to regulate vehicles offered to the public for hire, and processions, assem- blages or parades in the streets or public places, and all ordinances, rules and regula- tions which may have been or which may be enacted in pursuance of such powers shall remain in full force and effect ; and provided,- further, that local authorities may set aside for a given time a specified public highway for speed contests or races, to be conducted under proper restrictions for the safety of the public; and provided, further, that local authorities may excluide motor vehicles from any cemetery or grounds used for the burial of the dead, and may by general rule, ordinance or regulation exclude motor vehicles used solely for commercial purposes from any park or part of a park system where such general rule, ordinance or regulation is applicable equally and generally to all other vehicles used for the same purposes, and provided further that nothing in this article contained shall impair the validity or effect of any ordinances, regulating the speed of motor vehicles, or of any traffic regulations with regard to the operation of motor vehicles, heretofore or hereafter made, adopted or prescribed pur- suant to law in any city of the first class ; or in any city of the second class in a county adjoining a city of the first class ; provided, further, that the local authorities of otlier eities and incorporated villages may, subject to the provisions of this section and the following section, limit by ordinance, rule or regulation the speed of motor vehicles on the public highways, such speed limitation not to be in any case less than one mile in four minutes, and the maintenance of a greater rate of speed for one-eighth of a mile shall be presumptive evidence of driving at a rate of speed which is not careful and prudent, and on further condition that each city or village shall have placed conspic- uously within fifteen feet of the traveled portion of each main public highway where the city or village line crosses the same, or at a point within the limits of such city or village on such highway, and within fifteen feet of the traveled portion of every main highway where the rate of speed changes, on posts on both sides of the highway, at the point where the speed limit is reduced or changed, signs of sufficient size to be easily readable by the person using the highway, the top of which shall be not more than eight feet nor less than six feet from the ground, bearing in letters six inches high the Words, " City of " or " Incorporated village of ," " Slow down to miles " (the rate being inserted) , and also an arrow pointing in the direction where the speed is to be reduced or changed, and also on further condition that such ordinance, rule or regulation shall fix the punishment for violation thereof, which punishment shall, during the existence of the ordinance, rule or regulation, supersede those specified in subdivision two of section two hundred and ninety of this chapter but, except in cities of the first or second class, shall not exceed the same. Official copies of all local ordi'- nances passed under the provisions of this section shall be filed with the tax commission at least thirty days before they shall respectively take effect and all such local ordi- nances shall be printed in pamphlet form and issued at regular intervals by the tax commission. § 288-a. Limitation on scope of local ordinance; reports of violations to commissioner of highways. On any main public highway within any city or village, constructed in whole or in part at the expense of the state, the commissioner of highways may, where it is not built up or dwellings are sparse for a distance from the city or village line, designate MOTOE VEHICLES. 211 a point between which and the nearest city of village line on such sighway any such eity or village sliall not by ordinance regulate the speed of motor vehicles. Such designation shall be made by an order in writing of the commissioner of highways and served by mail on the mayor or president or a member of the governing board of such city or village ten days before the same shall take effect. At the expiration of ten days after such service of such order upon any city or village the speed of motor vehicles upon such main public highway between the point indicated and the city or village line nearest such point shall not be subject to any ordinance of any such city or village. The commissioner of highways may in his discretion at any time make a written order requiring any city of the third class or any village to report to the department of highways the punishment inflicted for violation of speed ordinances by motor vehicles in such city or village. Such order shall be in writing and shall be served in like manner as the order above provided for. Any city or village upon which such order is served shall thereafter, at the close of each month and before the fifth day of the following month, make a return and report to the commissioner of high- ways showing the names of the persons fined or otlierwise punished during the month, their places of residence, and the fines or punishment imposed. Such return or report shall be duly verified by the oOcer or of&cers, magistrate or magistrates imposing the fines or punishment. The commissioner of highways may at any time suspend or rescind the order requiring such reports or returns. If any city or village fail to make any such report or return as required by the order of the commissioner of highways within the time prescribed by law, the right and power of such city or village to impose any punishment for a violation of spaed ordinances regulating the speed of motor vehicles within such city or village shall be suspended until the return or report is made as required. No city or village shall employ any officer, agent or person whose compensation shall in any way depend upon the apprehension or arrest of any person or persons for violating the speed limit in a motor vehicle in such city or village. If ar.y person be apprehended or arrested or haled before a magistrate for a violation of the speed limit by any ofTicer, agent or employee cf any city or village who is so employed, the fact of such employment at the time shall be a defense to any charge made for violation of such speed limit or ordinance regulating the same. § 28D. License of cperators and chaufEeurs; renewals. 1. License of operators or chauffeurs. Application for license to operate motor vehicles, as an operator or chauffeur, may be made, by mail or otherwise, to the tax commission or its duly authorized agent ujKjn blanks prepared under its authority in such form and with such proof of the applicant's fitness as the tax commission shall in its discretion determine. The tax commission shall appoint examiners and cause examinations to be held at convenient points throughout the state as often as may be necessary. Such application, if for a chauffeur's license, shall be accompanied by a photograph of the applicant in such numbers 'and forms as the tax commission shall prescribe, said photograph to be taken within thirty days prior to the filing of said application and to be accompanied by the fee provided herein. An owner of a motor vehicle or a member of his immediate family shall be granted an operator's license, subject to this article. Before an operator's or chauffeur's license is granted, the applicant shall pass such examination as to his qualification as the tax commission shall require. Ko operator's or chauffeur's license shall be issued to any person under eighteen years of ago. To each person shall be assigned some distinguishing number or mark, and the license issued shall be such form as the tax commission shall deter- mine; it may contain special restrictions and limitations concerning the type of motor power, horse power, design and other features of the motor vehicles which the licensee 212 CIVIL LAW AND PEACTICE. may operate; it shall contain the distinguishing numl>er or mark assigned to the licensee, his name, place of residence and address, a brief description of the licensee for the purpose of identification and the photograph of the licensee if a chauflfeur. Such distinctive number or mark shall be of a distinctly different color each year and in each year shall be of the same color as that of the number plates issued for that year. The tax commission shall furnish to every chauffeur so licensed a suitable metal badge with the distinguishing niunber or mark assigned to him thereon without extra charge therefor. This badge shall thereafter be worn by such chauffeur aflBxed to his clothing in a conspicuous place, at all times while he is operating or driving a motor vehicle upon the public highway. Said badge shall be valid only during the term of the license of the chauffeur to whom it is issued as aforesaid. Every person licensed to operate motor vehicles as aforesaid shall indorse his usual signature on the margin of the license, in the space provided for the purpose, immediately upon receipt of said license, and such license shall not be valid until so indorsed. Every application for a chauffeur's license filed under the provisions of this section shall be sworn to and shall be accom- panied by a fee of five dollars, three dollars of which shall be for examination afore- said and two dollars for license fee.' Every application for an operator's license shall be sworn to and be accompanied by a fee of two dollars. A license granted hereunder at any time shall expire on the ensuing first day of July. A license in force when this section, as hereby amended, takes effect shall be deemed a license hereunder. Failure by an operator or chauffeur to exhibit his license to any magistrate, motor vehicle inspector, police officer, constable or other competent authority, shall be pre- sumptive evidence that said person is not duly licensed under this article. 2. Operators' and chauffeurs' licensed registration book. Upon the receipt of such an application, the tax commission shall thereupon file the same in its ofBce, and register the applicant in a book or index which shall be kept in the same manner as the book or index for the registration of motor vehicles, and when the applicant shall have passed the examination provided for in the preceding section, the number or mark assigned to such applicant together with the fact that such applicant has passed such examination shall be noted in said book or index. 3. Unauthorized possession or use of license or badge. No operator or chauffeur having been licensed as herein provided shall voluntarily permit any other person to possess or use his license or badge, nor shall any person while operating or driving a motor vehicle use or possess any license or badge belonging to another person, or a fictitious license or badge. 4. Unlicensed operators or chauffeurs cannot drive motor vehicle. An operator's license shall not entitle a person to drive a motor vehicle as an employee or for hire. No person shall operate or drive a motor vehicle upon a public highway of this state, unless such person shall have complied in all respects with the requirements of this section and of section two hundred and eighty-two of this act; provided, however, that a nonresident owner, operator or chauffeur, who has registered under provisions of law of the foreign country, state, territory or federal district of his residence substantially equivalent to the provisions of this article, shall be exempt from license under this section ; and provided, further, he shall wear the badge or carry the license certificate assigned to him in the foreign country, state, territory or federal district of his resi- dence in the manner provided in this section. 5. Eenewal. Such license shall be renewed annually, such renewal to take effect on the first day of July of each year, provided, that licenses now in effect shall upon their expiration be renewed for a period of five months or until July first, nineteen hundred and twenty-two. The tax commissim may refuse to issue or renew a license if he deems the applicant not qualified to receive such license, but the refusal of the tax commis- sion may be reviewed by writ of certiorari. For renewals to take effect on and after MOTOE VEHICLES. 213 July first, nineteen hundred and twenty-two, the fee shall be two dollars for a chauffeur's license and one dollar for ai. operator's license. 6. The licenses provided in this section shall not be required of a person operating a motor vehicle for the transportation of children to and from a school outside of a city who does not otherwise operate such motor vehicle as a chauffeur. § 289-a. Revocation and reissuance of licenses. Any magistrate in cities of the first, second and third class, or any county judge except where such judge is in a county wholly included within a city, shall have the power aftei- a hearing to revoke or suspend the license of any operator or chauffeur, or in case of an owner the certificate of registration of his motor vehicle, when such person shall have been guilty of such violation of the provisions of this article as shall in the discretion of said magistrate or county judge justify such revocation or suspen- sion. Said magistrate or county judge shall order the license or certificate of regis- tration delivered to the tax commission. The tax commission, in its discretion, in accordance with the provisions of this article, may reissue to such person such license or certificate of registration after an investigation or upon a hearing. § 290. Punishment for violation; procedure. 1. The violation of any of the provisions of sections two hundred and eighty-two, two hundred and eighty-three, two hundred and eighty-four, two hundred and eighty- four-a, two hundred and eighty-six and tww hundred and eighty-nine of this article shall constitute a misdemeanor punishable by a fine not exceeding fifty dollars or by imprisonment for not exceeding thirty days, or by both such fine and imprisonment. 2. The violation of any of the provisions of section two hundred and eighty-seven cf this article shall constitute a misdemeanor punishable by a fine not exceeding one hundred dollars or by imprisonment for not exceeding thirty days or by both such fine and imprisonment. 3. Pimishment for operating motor vehicle while in an intoxicated condition; for going away without stopping after accident and making himself known. Whoever operates a motor vehicle while in an intoxicated condition shall be guilty of a mis- demeanor. Any person operating a motor vehicle who,, knowing that injury has been caused to a person or damage caused to a vehicle, due to the culpability of the person operating such motor vehicle, or to accident, leaves the place of said injiu'y or accident, without stopping and giving his name, residence, including street and street numbur, and license number to the injured party, or to a police officer, or in case no police officer is in the vicinity of the place of said injury or accident, then reporting the same to the nearest police station, or judicial officer, shall be guilty of a misdemeanor. A conviction of a violation of this subdivision shall be reported forthwith by the trial court or the clerk thereof to the tax co mm ission, which shall make a record of the recommendation of the trial court. 4. Any operator or chauffeur operating a motor vehicle while his license is suspended or revoked shall be guilty of a misdemeanor. 5. Any person who operates any motor vehicle while a certificate of registration of motor vehicle issued to him is suspended or revoked shall be guilty of a misdemeanor. 6. Upon a third or subsequent conviction of a chauffeur or operator for a violation of the provisions of section two hundred and eighty-seven, or an ordinance, rule or regulation regulating speed of motor vehicles under section two hundred and eighty- eight, the license of the person so convicted shall be revoked and no new license shall be issued to such person for at least six months after the date of such conviction nor thereafter except in the discretion of the said tax commission. 7. Any person making a false statement in the verified application for registration, 214 CIVIL. LAW AND PKACTICE. or in an application for a license or in any proof or statement in writing in connec- tion therewith, or who shall deceive or substitute or cause another to deceive or sub,-. stitute in connection with any examination hereunder, shall be guilty of a misdemeanor. S. Any person violating any of the provisions of any section of this article, which violation is stated separately to be a misdemeanor, is punishable by imprisonment for not more thau one year or by a fine of not more than five hundred dollars, or by both, and for a violation of any other provision of this article, for which violation no pun- ishment has been specified, shall be guilty of a misdemeanor punishable by a fine of not exceeding twenty-five dollars. 9. Certifying conviction to the tax commission. Upon the conviction of any person for a violation of any of the provisions of this article the trial court or the clerk thereof shall immediately certify the facts of the case, including the name and address of the offender, the judgment of the court and the sentence imposed, to the tax com- mission who shall enter the same either in the book or index of registered motor vehicles or in the book or index of registered chauffeurs, as the case may be, opposite the name of the person so convicted, and in the case of any other person, in a book or index of offenders to be kept for such purpose. If any such conviction shall be reversed upon appeal therefrom, the person whose conviction has been so reversed may serve on the tax commission a certified copy of the order of reversal, whereupon the tax commission shall enter the same in the proper book or index in connection with the record of such conviction. 10. Release from custody, bail, et cetera. In case any person shall be taken into cus- tody charged with a violation of any of the provisions of this article, he shall forth- with be taken before the nearest magistrate, captain, lieutenant, clerk of the court or acting lieutenant who shall have the power of a magistrate and be entitled to an immediate hearing or admission to bail, and if such hearing cannot then be had, be released from custody on giving a bond or undertaking, executed by a fidelity or surety company authorized to do business in this state, or other bail in the form provided by section five hundred and sixty-eight of the code of criminal procedure, such bond or undertaking to be in an amount not exceeding one hundred dollars, except as herein provided where the charge is a violation of subdivision three of section two hundred and ninety of this article, for his appearance to answer for such violation at such time and place as shall then be indicated. On giving his personal undertaking to appear to answer any such violation at such tim« and place as shall then be indicated, secured by the deposit of a sum of money equal to the amount of such bond or under- taking, or in lieu thereof, in case the person taken into custody is the owner, by leaving the motor vehicle, or in case such person taken into custody is not the owner, by leaving the motor vehicle as herein provided with a written consent given at the time by the owner who must be present, with such oflScer; or in case such person is taken into custody because of a violation of any of the provisions of this article other than on a charge of violating any of the provisions of subdivision three of section two Iiundred and ninety and such officer is not accessible, be forthwith released from cus- tody on giving his name and address to the person making the arrest and depositing with such arresting officer the sum of one hundred dollars, or in lieu thereof, in case the person taken into custody is the owner, by leaving the motor vehicle, or, in case such person taken into custody is not the owner, by leaving the motor vehicle with a written consent at the time by the owner who must be present; provided that, in any such case, the ofUcer making the arrest shall give a receipt in writing for such sum or vehicle deposited and notify such person to appear before the most accessible magis- trate, describing him, and specifying the place and hour. In case such bond or under- tr-king shall not be given or deposit made by the owner or other person taken into custody, the provisions of law in reference to bail, in case of misdemeanor, shall apply. MOTOE VEHICLES. 215 Where the charge is a violation of subdivision three of section two hundred and ninety of this article, the provisions of the code of criminal procedure in reference to bail in eases of a misdemeanor shall apply exclusively. 11. Holding defendant to answer where magistrate has not jurisdiction to try oflFender; admitting to bail. In case the magistrate before whom any person shall be taken, charged with the violation of any provision of this article, shall not have jurisdiction to try the defendant, but shall hold the defendant to answer as provided by section two hundred and eight of the code of criminal procedure, he shall admit such defendant to bail upon his giving a surety company's bond or undertaking to appear to answer for s':;ch violation at such time and place as shall then be indicated, or upon his giving a written undertaking in the form provided in section five hundred and sixty-eight of the code of criminal procedure in a sum not exceeding one hundred dollars, except that in a case where the defendant is charged with a violation of any of tile provisions of subdivision three of section two hundred and ninety of this article, the provisions of the code of criminal procedure in reference to bail in cases of a mis- demeanor shall apply exclusively. 12. Disposition and return of bail. Such bail as may be deposited as herein pro- vided shall be held by the officer accepting the same of the clerk of the court. Upon the person who has been taken into custody and given security or bail for his appear- ance surrendering himself for trial and upon the conclusion of such trial the court shall issue to the defendant an order upon the magistrate or clerk of the court or other officer authorized to accept bail to return or deliver back said security or bail as was given. 13. A conviction of violation of any provisions of this article shall not be a bar to a prosecution for an assault or for a homicide committed by any person in operating a motor vehicle. § 290-a. Suspension and revocation of a license of operator or chauffeur. In addition to the other powers and duties contained in this article, the magistrate or county judge may also suspend or revoke any certificate of registration, or any license, issued to any person under the provisions of this article and may order such certificate or such license, and in the case of a registration any number plates, to be delivered to tax commission for any of the following causes: a. For a third or subsequent violation of the speed provisions of this article, or ordinance or regulation made by competent local authority, within one year. b. For violation of subdivision eight of section two hundred and eighty-two, subdivision one of section two hundred and eighty-six, subdivision three of section two hundred and eighty-nine, and subdi- vision seven of section two hundred and ninety of this article, respectively, c. Because of some physical or mental disability of the holder, or the disability of the holder by reason of intoxication or the use of drugs, d. Because of the conviction of the hoTder at any time for a felony, e. For habitual or persistent violation of any of the provisions of this article, or of the general highway traffic law, or of any lawful ordinance, rule or regulation made by local authorities in relation to traffic, f. For gross negligence in the operation of a motor vehicle or operating a motor vehicle in a manner showing a reckless disregard for life or property of others, g. Knowingly per- mitting or suffering any motor vehicle under the direction or control of the holder to be used in aid of furtherance of the commission of any crime, h. For preventing lawful identification of any motor vehicle under the holder's direction or control, or evading lawful arrest or prosecution while operating such motor vehicle, i. For wilfully evad- ing lawful prosecution in another state or jurisdiction for an offense committed therein against the motor vehicle or traffic laws thereof. Whenever anv license or certificate shall have been revoked or suspended under 216 CIVIL LAW AND PKACTICE. the provisions of this article no new license or certificate shall be issued by the tax commission to such person until after thirty days from the date of such revocation, nor thereafter except in the discretion of the tax commission. Notice of revocation and suspension of any license or certificate of registration shall be transmitted forth- with by the tax commission to the chief of police of the city or prosecuting officer of the locality in which the person whose license or certificate of registration so revoked or suspended, resides. In case any license or certificate of registration shall expire before the end of any period for which it has been revoked or suspended and before it shall have- been restored as provided in this article, then and in that event any renewal thereof may be withheld until the end of such period of suspension or until restoration, as the case may be. § 290-b. Certificate by magistrate. Upon conviction of any operator or chauffeur of a violation of this article, for any reason specified in the last preceding section as a ground for suspension or revocation of a license of an operator or chauflfeur, the magistrate or other officer before whom such operator or chauffeur has been convicted, shall forthwith transmit to the tax commission a certificate stating in detail the conviction and the reasons for such con- viction. Such certificate shall be presumptive evidence of the conviction of such operator or chaufl'eur. § 291. Disposition of registration fees; fines and penalties. 1. On the first day of each month or within ten days thereafter all fines, penalties or forfeitures collected for violations of any of the provisions of this article or of any act in relation to the use of the public highways by motor vehicles now in force or hereafter enacted, under the sentence or judgment of any court, judge, magistrate or other judicial officer having jurisdiction in the premises, shall be paid over by such court, judge, magistrate or other judicial officer to the treasurer of the state, with a statement accompanying the same, setting forth the action or proceeding in which such moneys were collected, the name and residence of the defendant, the nature of the offense, and the fine, penalty, sentence or judgment imposed. On the first day of each month or within ten days thereafter, every judge, magistrate or clerk of a court having jurisdiction of the violation of any of the provisions of this article, shall make and forward to the treasurer of the state, a verified report of all criminal actions or proceedings instituted or tried before him or it during the preceding cal- endar month for violation of any of the provisions of this article, which report shall set forth the name and address of the defendants, the nature of the offenses and the fines and penalties collected or imposed by such court, judge, magistrate or judicial officer, which report shall be open to inspection during reasonable business hours to any citizen of the state. On or before the first day of February of each year, the treasurer shall transmit to each branch of the legislature a statement showing the amount of the receipts under this article during the preceding fiscal year paid into the state treasury. 2. The tax commission shall deposit all registration fees collected by him under this article in a responsible bank, banking house or trust company in the city of Albany, which shall pay the highest rate of interest to the state for such deposit, to the credit of the comptroller on account of the motor vehicle law. Every such bank, banking house or trust company shall execute and file in his office an undertaking to the state, in the sum, and with such sureties, as are required and approved by the comptroller for the safe keeping and prompt payment on legal demand there- for of all such moneys held by or on deposit in such bank, banking house or trust company, with interest fhereon on daily balances at such rate as the comptroller MOTOE VESICLES. 216a may fix. Every such undertaking shall have endorsed thereon or annexed thereto the approval of the attorney -general as to its form. The comptroller shall on the first day of each month make a verified return to the state treasurer of al\ registra- tion fees received by him under this article during the preceding calendar month, stating from what county received and by whom and when paid. 3. The comptroller shall on or before the tenth day of each month pay to the state treasurer seventy-five per centum of the balance to his credit in such bank, banking house or trust company, on account of registration fees collected under this article, at the close of business on the last day of the preceding month; and from the money so deposited shall pay to the treasurer of each county twenty-five per centum of the registration fees collected from residents of such county during the preceding calendar month. In the city of New York such payment shall be made through the chamber- lain of such city on account of all counties included therein. 4. All moneys paid into the state treasury pursuant to this article shall be appro- priated and used for the maintenance and repair of the improved roads of the state, under the direction of the state commission of highways. All moneys received by the chamberlain of the city of New York, pursuant to this article, shall be paid into the treasury of the city to the credit of the general fund. All moneys received by the county treasurer of any county pursuant to this article, shall be used for the perma- nent construction or improvement of town highways only in such county as defined by subdivision four of section three of this chapter. The county treasurer shall, upon receipt of such moneys, keep an accurate record thereof, and shall furnish the board of supervisors of the eoiinty, upon request by it, with a certified statement of such receipts. The board of supervisors of the county shall, at a regular or special meeting and by a majority vote, allot such moneys to one or more of the towns within such county, and shall by resolution appropriate for the use of such town or towns the moneys so allotted. A certified copy of such resolution shall be filed with the county treasurer of such county, with the state commission of highways and with the town clerk of the town to which such allotment is made. The places and the manner in which such moneys shall be expended shall be determined by the town board and the town superintendent subject to the approval of the state commission of highways in accordance with the provisions of section one hundred and five of this chapter, which shall also govern the method by which such moneys shall be expended. Upon such approval by the commission and after written notice thereof has been filed by it with the county treasurer, and after the supervisor of the town to which such allot- ment is made has given a bond in accordance with the provisions of section one hun- dred and four of this chapter, the county treasurer shall pay to the supervisor of such town or towns the amount to which each is entitled as determined and indicated by such resolution. A statement of the receipts and expenditures of such moneys shall be included in the report required by section one hundred and seven of this chapter. The provisions of section one hundred and eight of this chapter shall apply as to the method of keeping accounts, the forms, blanks and orders used, and the filing of records in the town clerk's office. § 292. Rates of toll on motor vehicles. Where a different rate is not otherwise prescribed or permitted by law, any person or corporation maintaining a plankroad, turnpike road or bridge and authorized or which shall be hereafter authorized, to receive tolls for the passage of vehicles over the same, may charge and receive for each and every motor vehicle propelled by any power other than animal power, passing over the same, a toll rate not greater than the maximum rate allowed by law to be charged and received for the passage of a vehicle drawn over such road or bridge by two animals, provided th.it fnr r^'uh motor vehicles 216b CIVIL LAW AND PRACTICE. designed to carry only two persons the rate of toll charged and received shall not exceed the maximum rate allowed by law to be charged and received for the passage of a vehicle drawn over such road or bridge, without a load, by a single animal. § 293. Acts repealed. All acts or parts of acts inconsistent with this article or contrary thereto are hereby expressly repealed. § 294. Delegation of powers to director of motor vehicle bureau. The tax commission may delegate any of its powers or duties under this article or under article eleven-a, to the deputy commissioner in charge of the motor vehicle bureau, who shall be known and designated as " director of the motor vehicle bureau." THE LAW or THE KOAD AND OTHEE PKOVISIONS. 217 CHAPTEE XL THE LAW OP THE EOAD AND OTHEE MISCELLANEOUS PEOVISIONS EELATING TO HIGHWAYS. Section 1. In general. 2. Intemperate drivers not to be engaged. 3. When drivers to be discharged. 4. Leaving horses without being tied. 5. Owners of certain carriages liable for acts of drivers. 6. Term " carriage " defined, 7. Entitled to free use of highways. 8. Deposit of rubbish on highway. 9. Traction engines on highways. 10. Lights on vehicles. 11. Injuries to highways. 12. When town not liable for damages. 13. Law of the road. 14. Trees, to whom they belong. 15. Injury to fruit or shade trees. 16. Penalty for falling trees. 17. Fallen trees to be removed. 18. Penalties, how recovered. 19. The General Highway Traffic Law. § 1. In general. The law of the road and other miscellaneous matters relating to high- ways are enacted as a part of the statute law of the State in article 12 of the Highway Law covering section 322 to 337, inclusive, of such law. Eules of the road pertaining to its use by motor vehicles have been,' to some extent, covered in the preceding chapter. They are also included in 'the General Highway Traffic Law, which is inserted at the latter part of this chapter. § 2. Intemperate drivers not to be engaged. K^o person owning any carriage for the conveyance of passengers, run- ning or traveling upon any highway or road, shall employ, or continue in employment, any person to drive such carriage who is addicted to drunk- enness, or to the excessive use of spirituous liquors ; and if any such owner shall violate the provisions of this section, he shall forfeit at the rate of five dollars per day, for all the time during which he shall have kept any such driver in his employment. (Highway Law, § 322. See C. B. & G. Consolidated Laws and Huddy on Automobiles, 5th Ed., § 294.) 218 CIVIL LAW AND PEAOTICE. § 3. When drivers to be discharged. If any driver, while actually employed in driving any such carriage, shall be guilty of intoxication, to such a degree as to endanger the safety of the passengers in the. carriage, the owner of such carriage shall, on receiving written notice of the fact, signed hy any one of said passengers, and certified by him on oath, forthwith discharge such driver from his employment ; and every such owner, who shall retain, or have in his ser- vice within six months after the receipt of such notice, any driver who shall have been so intoxicated, shall forfeit at the rate of five dollars per day, for all the time during which he shall keep any such driver in his employment after receiving such notice. (Highway Law, § 323. Sea B. C. & G. Consolidated Laws.) § 4. Leaving horses without being tied. 'No driver of any carriage used for the purpose of conveying passengers for hire shall leave the horses attached thereto, while passengers remain in the same, without first making such horses fast with a sufficient halter, rope or chain, or by placing the lines in the hands of some other person so as to prevent their running; and if any such driver shall offend against the provisions of this section, he shall forfeit the sum of twenty dollars. (Highway Law, § 324. See C. B. & G. Consolidated Laws.) § 5. Owners of certain carriages liable for acts of drivers. The owners of every carriage running or traveling upon any turnpike, road or highway, for the conveyance of passengers, shall be liable jointly and severally, to the party injured, for all injuries and damages done by any person in the employment of such owners, as a driver, while driving such carriage, whether the act occasioning such injury or damage be willful or negligent, or otherwise, in the same manner as such driver would be liable. (Highway Law, § 325. See B. C. & G. Consolidated Laws.) § 6. Term " carriage " defined. The term " carriage " as used in this article shall be construed to include stage coaches, wagons, carts, sleighs, sleds, automobiles or motor vehicles, and every other carriage or vehicle used for the transportation of persons and goods, or either of them, and bicycles, tricycles and all other vehicles propelled by manumotive or pedomotive power, or by electricity, steam, gasoline or other source of energy. (Highway Law, § 326. See B- C. & G. Consolidated Laws.) THE LAW OF THE KOAD AND OTHEE PKO VISIONS. 219 § 7. Entitled to free use of highways. The commissioners, trustees or other authorities having charge or con- trol of any highway, public street, park, parkway, driveway, or place, shall have no power or authority to pass, enforce or maintain any ordinance, rule or regulation by which any person using a bicycle or tricycle shall be excluded or prohibited from the free use of any highway, public street, avenue, roadway, driveway, parkway, park, or place, at any time when the same is open to the free use of persons having and using other pleasure carriages, except upon such driveway, speedway or road as has been or may be expressly set apart by law for the exclusive use of horses and light carriages. But nothing herein shall prevent the passage, enforcement or maintenance of any regulation, ordinance or rule, regulating the use of bicycles or tricycles in highways, public streets, driveways, parks, park- ways, and places, or the regulation of the speed of carriages, vehicles or engines, in public parks and upon parkways and driveways in the city of New York, under the exclusive jurisdiction and control of the department of parks of said city, nor prevent any such commissioners, trustees or otlier authorities in any other city from regulating the speed of any vehicles herein described in such manner as to limit and determine the proper rate of speed with which such vehicle may be propelled nor in such manner as to require, direct or prohibit the use of bells, lamps and other appurtenances nor to prohibit the use of any vehicle upon that part of the highway, street, park, or parkway, commonly known as the footpath or sidewalk. (Highway Law, § 327. See B. 0. & G. Consolidated Laws.) § 8. Deposit of rubbish on highway. Any person who shall deposit or throw loose stones in the gutter or grass adjoining a highway, or shall deposit or throw upon a highway, ashes, papers, stones, sticks or other rubbish, shall be liable to a penalty of ten dollars to be sued for and recovered by the town superintendent. No stone or other rubbish shall be drawn to and deposited within the limits of any highway, except for the purpose of filling in a depression or otherwise improving the highway, without the consent and under the direction of the town superintendent. (Highway Law, § 328. See B. C. & G. Consoli- dated Laws.) § 9. Traction engines on highways. The owner of a steam roller, steam traction engine, any other machinery propelled or driven by steam, or of any gasoline driven traction engine, his servant or agent, shall not allow, permit or use the same to pass over, through or upon any public highway or street, except upon railroad tracks, 220 CIVIL LAW AND PRACTICE. unless such owner or his agents or servant shall send hefore the same a person of mature age, at least one-eighth of a mile in advance, who shall notify and warn persons traveling and using such highway or street with horses or other domestic animals, of the approach thereof, and at night such person shall carry a red light, except in incorporated villages and cities. (Highway Law, § 329. See B. C. & G. Consolidated Laws. See also Huddy on Automobiles, 5th Ed., § 360.) The failure of the owner of a steam roller to send a person ahead tQ warn travelers of its approach is such negligence as will justify a verdict in favor of a person whose horse is frightened by the roller and runs away, where no contributory negligence on the part of the plaintiff is shown. {Buchanan's Sons v. Crawford Co., 112 App. Div. 278 ; Mullen v. Villago of Glens Falls, 11 App. Div. 275.) § 10. Lights on vehicles. Every vehicle on wheels, whether stationary or in motion, while upon any public street, avenue, highway, or bridge, shall have attached thereto a light or lights, so placed as to be clearly visible from the front and from the rear, from one-half hour after sunset to one-half hour before sunrise; provided, however, that this section shall not apply to a vehicle designed to be propelled by hand or to a vehicle designed principally for the trans- portation of hay or straw, while loaded with such commodities. Upon the written application and presentation of reasons therefor by the owner of the vehicle, the State Commission of Highways may in writing, and sub? jeot to such requirements as it may elect to impose, but without expense to the applicant, except said vehicle from the provisions of this section for such period of time as the commission may determine. The provisions of this section shall apply to all cities, towns, and villages of the State except the city of K'ew York. Nothing in this section shall be construed to affect the provisions of any existing statute, rule, or regulation requiring lights on motor vehicles or affecting the obligations of operators or occupants thereof. A person violating the provisions of this section shall be guilty of a misdemeanor punishable by a fine not to exceed ten dollars. (High- way Law, § 329. See B. C. & G. Consolidated Laws. See also Huddy on Automobiles, §§ 344-348, as to lights on. vehicles.) § 11. Injuries to highways. Wlioever shall injure any highway or bridge maintained at the public expense, by obstructing or diverting any creek, water course or sluice, or by dragging logs or timber on its surface, or by drawing or propelling ovei; the same a load of such weight as to injure or destroy the culverts or bridges THE LAW OF THE ROAD AND OTHER PROVISIONS. 221 ■along the same, or of sucli -weight that will destroy, break or injure the sur- face of any improved State, county or town highway, or by any other act, or shall injure, deface or destroy any mile-Sitone or guide post erected on any highway, shall for every such offense forfeit treble damages. (Highway Law, § 330. See B. C. & G. Consolidated Laws.) § 12. When town not liaible for damages. No town shall be liable for any damage resulting to person or property by the reason of the breaking cf any bridge, sluice or culvert, by transpor- tation on the same of any traction engine, portable piece of machinery, or of any vehicle or load, together weighing eight tons or over, but any owner thereof or other person engaged in transporting or directing the same shall be liable for all damages resulting therefrom. (Highway Law, § 331. See B. C. & G. Consolidated Laws. And see Highway Law, § 331a, as to excessive loads on unsafe bridges.) § 13. Law of the road. 1. Whenever any persons traveling with any carriages, or riding horses or other animals, shall meet on any turnpike, road or highway, the persons so meeting shall seasonably turn their carriages, horses, or other animals to the right of the center of the road, so as to permit such carriages, horses, or other animals to pass without interference or interruption. 2. Any carriage, or the rider of a horse or other animal, overtaking another shall pass on the left side of the overtaken carriage, horse or other animal. When requested to do so, the driver or person having charge of any carriage, horse or other animal, traveling, shall, as soon as practicable, turn to the right, so as to allow any overtaking carriage, horse or other animal free passage on his left. ■ 3. In turning corners to the right, carriages, horses or other animals shall keep to the right of the center of the road. In turning corners to the left, they shall pass to the right of the center of intersection of the two roads. 4. Any person neglecting to comply with, or violating any provision of this section shall be liable to a penalty of five .dollars to be recovered by the party injured, in addition to all damages caused by such neglect or viola- tion. (Highway Law, § 332. See also the General Highway Traffic Law following in this chapter.) The rules of the road governing motor vehicles are stated in the preceding chapter. The law of the road, as it exists at the present day, had its foundation in the custom of the colonists and existed long before any statute was passed upon this subject. The object of the statute is to make the violation 222 CIVIL LAW AND PKACTICE. of the law a penal offense. The rule or custom of the road is to pass to the left on overtaking and to the right on passing, assuming the position of the parties to be such as to bring the rule into use. {Wright v. Fleischman, 41 Misc. 533 ; Peters v. Curreo, 123 App. Div. 740.) It ,is not a crime to drive upon the wrong side of the highway, but merely subjects the offender to a liability for damages. {People v. Martinitis, 168 App. Div. 446, 153 K Y. Supp. 791.) Another rule of law is 'that he who attempts to pass another in a high- way, going in the same direction, has the right to do so in such manner as may be most convenient under the circumstances, and if damage result to the person passed, the former must answer for it unless the latter by hia own recklessness or carelessness brought disaster upon himself; and this rule is as applicable to one attempting to pass a standing vehicle, headed in the same direction, which he approaches from the rear, as it is to a vehicle in motion traveling in the same direction. {AltenTcirch v. National Biscuit Co., 127 App. Div. 307.) The fact that a driver was on the wrong side of the street when meeting a person riding a bicycle is not negligence if he conducts himself with reasonable care while there. {Dickinson v. PZaii, 116 App. Div. 651.) A person driving upon a public highway in advance of another vehicle is not bound to give way or to give facilities to the overtaking vehicle to enable it to pass; but he is bound to refrain from any manoeuvre calculated to embarrass an overtaking vehicle in its attempt to pass. {Crabtree v. Otterson, 22 App. Div. 393.) One person may choose to go at a slow pace along the way and he has a right so to go. Another may choose to go at a faster pace and he has the right so to go. Yet each must exercise his right so as not unnecessarily to abridge the use by the other of his right. The one choosing to go fast may turn out and go past the one choosing to go slow, but must keep clear of him in doing it. The one choosing to go slow may keep in the beaten track, and is not bound to give way for the other to pass, if there be room on either hand for the other to go by without way being given ; nor is he bound to give way where there is not space for him so to do or if it may not be done safely. He has the first right of way under such circumstances over so much space of road as his team and vehicle cover at the moment. Hence, he is not bound to look back, or to listen for the coming of another, so as to make clear the way before him. But if by keeping his place he will stop the faster driver from passing, when, by turning aside, without meeting obstruction or danger in doing so he could give way for passage, he is bound to give way on request. His duty is summed up in keeping on his way avoiding collisions with those Avhom he meets, and in yielding way enough for those behind him to pass THE LAW OF THE ROAD AND OTHEK PROVISIONS. 223 when it is needful and practicable so to do, and he is thereunto requested. {Adolph V. Cent. Park, North & East River B. B. Co., 96 N. Y. 530; Mark v. Fritsch, 195 N. Y. 282.) If he desires to turn from one track to another he is hound to use reasonable precautions such as a prudent man would use, but he is not bound positively to see to it that his movements will not result in collision. {Crabtree v. Otterson, 22 App, Div. 393.) The rule in regard to keeping to the right on a public highway does not apply when there are obstructions on that side of the road. {Mooney v. Trow Directory Printing, etc., Co., 2 Misc. 238.) § 14. Trees ; to whom they belong. All trees, standing or lying on land within the bounds of any highway, shall be for the proper use of the owner or occupant of such land, except that they may be required to repair the highway or bridges of the town. Where a right of way has been or shall be acquired under the provisions of this chapter, for a State or county highway, the owner of the fee shall have and may harvest for his own use the fruit upon all fruit-bearing trees left standing from time to time within the right of way so acquired, until forbidden in writing by the governing board of the political subdivisions in which the title to such right of way vests. (Highway Law, § 333. Sea B. C. & G. Consolidated Laws.) Trees maintained for shade and ornament are a part of the street, to be used and enjoyed by the public traveling thereon the same as a good road- bed, sidewalk, pavement or anything else in the street which contributes to the comfort or pleasure of the traveler. As a general rule whatever renders a street more valuable to the people at large renders it more valu- able to the abutting owner as he has all their rights of user besides other rights which are peculiar to himself. So long as a shade tree is physically and legally a part of the street the abutting owner is entitled to all the special benefits which flow therefrom to his lot, free from interference by a wrong-doer, but subject to removal by the municipal government. An owner of land abutting upon a city street whose ownership does not extend to the middle of the street who has set out ornamental shade trees on the sidewalk in front of his premises at his own expense and with the sanction of the municipal authorities is entitled to have such trees protected against negligent or willful destruction at the hands of third parties. He has a right in such trees in the nature of an equitable ease- ment, and where one of them is girdled and destroyed by a horse, may recover from the owner of the horse the damages thus sustained. (Lane V. Lamke. 53 App. Div. 395; Donahue v. Keystone Gas Co., 181 N. Y. 313.) And although the owner of the abutting land did not set out the 224 CIVIL LAW AND PEACTICE. trees, lie is entitled to the rights of his predecessor in title as an abutting owner who did set them out, and if they have long stood in the street they are presumed to have been placed and maintained there with tho consent of the municipal authorities. (Id.) If a gas company negligently permits gas to escape from its mains into the soil about the roots of such trees and they are thereby destroyed, the company is liable to tbe abutting owner for the damage he has sustained. (Id.) And if an electric light company cuts the branches of trees belonging to abutting owners, tbe company will be liable in treble damages for the trespass unless the cutting of tbe branches was an existing necessity which could not be avoided by insulating the wires or by employing other practical means which may be more expensive and less convenient. (Van Sichlen v. Jamaca Electric Light Co., 45 App. Div. 1.) § 15. Injury to fruit or shade trees. It shall be unlawful for any person or persons whatsoever in this state to hitch any horse or other animal to or leave the same standing near enough to injure any fruit or forest tree growing within the bounds of the public highway, or used as a shade or ornamental tree around any schoolhouse, church or public building, or to cut down or mutilate in any way any sucb ornamental or shade tree; but the right of property owners along tbe bigb- way to cultivate, train and use such shade trees shall not be impaired or abridged hereby. Any person or persons guilty of violating tbe pro- visions of this section shall be deemed guilty of misdemeanor, and shall be punishable by a fine of not less than five dollars, nor more than twenty- five dollars for each such offense, and in case of failure to pay any fine imposed, may be committed to jail, not exceeding one day for cacli dollar of such fine. Courts of special sessions having jurisdiction to try misdemeanors, as provided by section fifty-six of tbe code of criminal procedure, shall have exclusive jurisdiction to try offenders in all cases occurring in the same manner as in other cases, where they now have jurisdiction, and subject to the same power of removal, and to render and enforce judgments, to the extent herein provided. All fines collected under the provisions of this act shall be paid when the offense is com- mitted in a town outside of incorporated villages, to tbe supervisor of tbe town, to be used as the town board and town superintendent may direct. AVhen the offense is committed in any village of the county, wbicb by law IP constituted a separate road district, the fine shall be paid to the treasurer of said village, to be used as the board of trustees may direct. (Highway Law, § 334. See B. C. & G. Consolidated Laws.) THE LAW OF THE KOAD AND OTHER PROVISIONS. 225 § 16. Penalty for falling trees. If any person shall cut down any tree on land not occupied by Lim, so that it shall fall into any highway, river or stream^ unless by the ordeu and consent of the occupant, the person so offending shall forfeit to such occupant the sum of one dollar for every tree so fallen, and the lite sum for every day the same shall remain in the highway, river or stream. (Highway Law, § 335. See B. 0. & G. Consolidated Laws.) § 17. Fallen trees to be removed. If any tree shall fall, or be fallen by any person from any enclosed land into any highway, any person may give notice to the occupant of the land from which the tree shall have fallen, to remove the same within two days ; if such tree shall not be removed within that time, but shall continue in the highway, the occupant of the land shall forfeit the sura of fifty cents for every day thereafter, until the tree shall be removed. (Highway Law, § 336. See B. C. & G. Consolidated Laws.) § 18. Penalties, how recovered. All penalties or forfeitures given in this chapter, and not otherwise specially provided for, shall be recovered by the town superintendent, in the name of the town in which the offense shall be committed; and when recovered, shall be applied by him in improving the highways and bridges in such town. (Highway Law, § 337.) See B. C. & G. Consolidated Laws.) § 19. The General Highway Traffic Law. By Chapter 655 of the Laws of 1917, the L^slature enacted a general law for the regulation of traffic on the public highways of the State. Its provisions are as follows : 15 226 CIVIL LAW AND PEACTICE. GENEBAIi HIGHWAY TRAFFIC I.AW. Abticlb 1. Short title; definitions; application (§§ 1-3). 2. Use of highways regulated (§§ 10-22). 3. Penalties; miscellaneous provisions (§§ 30-32). ARTICLE 1. Shoet Title; Definitions. SKOnoN 1. Short title. 2. Definitions. 3. Application. § 1. Short title. This chapter shall be known as the " general highway traffic law." § 2. Definitions. The following terms wherever used in this chapter, except as otherwise specifically indicated, shall be defined to mean and shall be held to include each of the meanings herein below specifically set forth, and any such term used in the singular number shall be held to include the plural: " Public highway " shall include any highway, country road, state highway, state road, public street, avenue, alley, park, parkway, or driveway, in any city, town or village within the state. " Street " or " roadway " shall include that part of the public highway or a bridge intended for vehicles. " Curb " shall include the boundaries of the street, whether marked by curb stone or not so marked. " Crossing " shall iiiclude all crossings marked by a pavement or otherwise and the extension of the sidewalk space -across intersecting streets. " Street intersection " shall include the area bounded by the side lines, real or pro- jected, of two or more streets which meet or cross each other. " Vehicle " shall include a horse and every kind of conveyance, except a baby car- riage, a street surface car and a push cart. "Motor vehicle" shall include all vehicles propelled by any power other than mu.3cu- lar power, which do not run upon a rail or rails. "Motorcycle" shall include all motor vehicles designed to travel on not more than three wheels in contact with the ground. " Horse " shall include all domestic animals used as draught animals or beasts of burden. " Driver " shall include a person who propels or operates or who is in charge of a vehicle. " Pedestrian " shall include all persons making use of public highway for foot passage. " One-way traffic " is traffic restricted to one direction. " Parking place " shall mean that part of any street designated by local ordinance or regulation as a place for the standing of vehicles. " City " or " village " shall include that portion of a county which is within the limits of an incorporated city or village, and " town " shall include all portions of the county outside the limits of an incorporated city or village. " Reckless driving " for the purpose of this chapter shall include driving or using a vehicle or street surface car or any appliance or accessory thereof in a manner THE LAW OF THE EOAD AND OTHEE PKOVISIONS. 227 which unnecessarily interferes with the free and proper use of the highway, or un- necessarily endangers users of the highway. " Safety zone " shall mean such space within a street or public highway as shall be established for persons on foot. § 3. Application. The provisions of this chapter shall not apply to the city of New York. ARTICLE 2. Use of Highways EEOuiATEa). Section 10. Pedestrians. 11. Stopping, turning, passing and waiting of vehicles. 12. Right of way and operation of vehicles. 13. Signals. 14. Speed regulations. 15. Parking, safety zones and cab stands. 16. Loading and unloading vehicles. 17. Vehicles. 18. Street surface cars. 19. Motorcycles, bicycles and similar vehicles. 20. Miscellaneous regulations. 21. Duties of local authorities. 22. Powers of local authorities. § 10, Pedestrians. Pedestrians walking upon the traveled part of a street and not the sidewalk shall, when meeting or passing vehicles, be subject to and comply with the rules governing vehicles as to meeting, turning out and passing, except as to signals. § 11. Stopping, turning, passing, and waiting of vebides. 1. A vehicle turning into another street to the right shall turn the corner as near the right-hand curb as practicable. 2. A vehicle turning to the left into another street, shall, before turning, pass to the right of and beyond the center of the intersecting streets; provided, however, that if directed by a traffic officer the vehicle shall pass in front of instead of around the point of intersection. 3. In turning a corner of intersecting streets a vehicle shall be driven with extreme caution and under control. 4. A vehicle passing around a circle shall keep to the right from entrance to exit. 5. Vehicles turning around or crossing from one side of the street to another, except for the purpose of passing other vehicles or because of dangers in the streets, shall do so by turning to the left so as to head in the general direction of traffic after they have crossed the street. 6. A vehicle in overtaking or meeting a street surface car which has been siopped for the purpose of receiving or discharging a passenger or passengers, shall not pass or approach within seven feet of such car so long as such car is receiving or dis- charging passengers, except that in a city having a million or more population such vehicle shall not pass or "approach within eight feet of such car except as indicated by the safety zone. In passing any street surface car extreme care, must be used by the driver. 228 CIVIL LAW AND PEACTICE. 7. On an avenue, street or boulevard divided longitudinally by a parkwaj^, walk, space for street surface cars, viaduct, zone of safety, cab stand, parking space or other similar obstructions, vehicles shall keep the right of such division. § 12. Bight of -way and operation of vehicles. 1. When in the performance of duty the following vehicles shall have the right of way : United States mail, police, fire, fire patrol, bureau of buildings, emergency repair of public service corporation, ambulances and the military; but this shall not relieve the driver or owner of any such vehicle from consequences of the arbitrary or careless exercise of this right for injuries inflicted. 2. No vehicle and no street surface car, except as provided in subdivision one of this section, shall be driven through a procession, except with the permission or by order of a police officer. If the procession takes more than five minutes to pass, it shall be broken and trafBc allowed to go through. 3. Two vehicles which are passing each other in opposite directions shall have the right of way, and, except in cities and villages, no other vehicle to the rear of either of such two vehicles shall pass or attempt to pass such two vehicles while they are passing each other. 4. Every driver of a vehicle approaching the intersection of a street or public road shall grant the right of way at such intersection to any vehicle approaching from his right; provided, that wherever traffic officers are stationed they shall have full power to regulate traffic 5. A vehicle must not be so driven as to impede or obstruct the progress of the apparatus of the fire department or any official or employee of a city, town or village in the discharge of his duty at a fire. The driver of a vehicle must not drive through or within the established fire lines or over a line of fire hose. On the approach of fire apparatus, as evidenced by suitable and continuous warning or by street signals operated from lire headquarters, visible or audible one to another, indicating the route of the apparatus, the driver of a vehicle must immediately draw up such vehicle as near as practicable to the right-hand curb and parallel thereto, and bring it ,to a standstill, and the driver of a street car must immediately stop his car and keep it stationary until the apparatus has passed. 0. The vehicle having the middle line of the highway on its left shall have the right of way. In meeting both vehicles shall keep to the right, so as to insure safe passage, and this without regard to the middle line of the highway. Slowly moving vehicles must move as near to the curb as practicable; rapidly moving vehicles must occupy the space lying immediately next to and parallel with the middle of the highway. 7. A- vehicle overtaking another vehicle shall pass on the left side of the overtaken vehicle and not pull over to the right thereof until entirely clear of it. 8. The driver of an overtaking vehicle shall signal his desire to pass an overtaken vehicle by a blast or stroke of the horn or other signaling device, and thereupon it shall be the duty of the overtaken vehicle, if possible, to turn to the right so as to allow the overtaking vehicle a reasonable space in which to pass, or to warn by signal the impossibility of such passage. 9. It shall be unlawful for any person to drive a vehicle within a safety zone. 10. In all passing and overtaking such assistance shall be given by the occupants of each vehicle respectively to the other as the circumstances shall demand and either request by voice or signal, and each shall exercise care and caution to get clearance and avoid accident. 11. No vehicle shall emerge from an alley, stable, garage or driveway except slowly and under control of the driver who shall give a proper warning by voice or signaling device to passing vehicles and pedestrians. THE LAW OF THE KOAD AND OTHEE PKOVISIONS. 229 12. The use of a motor muffler cut-out is prohibited on any highway within the limits of a city or incorporated village. 13. Gong and siren whistles shall not be used on any vehicle other than ambulances and vehicles operated by a police department, fire department, sheriff, authorized public utility company when on emergency calls and the United States mail and military services. 14. A person operating or driving a motor vehicle shall on signal by raising the hand or otherwise from a person driving, leading or riding a horse or horses or other draft animal, bring such motor vehicle immediately to a stop, and if traveling in the opposite direction remain stationary so long as may be reasonable to allow such horse or animal to pass, and if traveling in the same direction use reasonable caution in thereafter passing such horse or animal. § 13. Signals. 1. Before turning to the right or left and, except in an emergency, before decreasing speed or stopping the driver shall warn those following either by holding his arm straight out, horizontal and at right angles to the car, or by operating an adequate mechanical signal device. 2. Upon approaching a pedestrian who is on the traveled part of any street and nob upon a sidewalk, and upon approaching an intersecting street or a curve or a. corner in the street where the driver's view is obstructed and where a traffic officer is not on duty, every driver of a vehicle shall slow down the same and give a timely and sufficient signal with his voice, horn or other signaling device. 3. The driver of a vehicle shall before turning while in motion or from a standstill or changing the course of such vehicle first see that there is sufficient space to make such movement in safety, and shall give a visible or audible signal to the traffic officer, if there be such, or to drivers of other vehicles following of his intentions to make such movement by signaling as provided in subdivision one of this section, and where a police officer is in charge of the traffic indicate to him the direction in which the vehicle is to4)e turned. 4. Before backing any vehicle the driver shall see that the way is clear and shall give adequate warning, and shall, while backing, exercise due vigilance to prevent accident. § 14. Speed regnlations. 1. Reckless driving is prohibited. Every person violating this provision shall be guilty of a misdemeanor and shall be punished by a fine not exceeding one hundred dollars for the first offense; and by a fine not exceeding one hundred dollars or imprisonment not exceeding six months or by both such fine and imprisonment in the discretion of the court for a second or subsequent offense. 2. Upon approaching a bridge or in passing a public hospital, fire house or a school the driver of any vehicle or street surface car shall proceed with extreme care and with vehicle or street surface car under control, provided local authorities have legible and visible signs posted, warning drivers of their approach to a bridge, fire house, public hospital or school building. 3. Street surface cars shall be brought to a full stop and all other vehicles shall use extreme caution when approaching a crossing or place designated by the sign "Traffic Point." Local authorities shall have authority from time to time to designate by ordinance, rule or regulation such crossing or other places at which such signs shall be placed. § 15. Parking, safety zones and cab stands. 1. The police commissioner, common council, board of aldermen, commission or any other body having charge of the streets of a city and the trustees of a village are 230 CIVIL LAW AND PKACTICE. authorized to designate by ordinance or regulation such safety zones, parking spaces and cab or taxicab stands in the public streets as are, or shall be required, for the safety and convenience of the citizens and inhabitants of the city or village, and shall mark and indicate by suitable stationary and portable signs the location of such zones, spaces and stands and all persons driving, operating or having under their control any vehicle of any kind whatsoever shall obey the rules and regulations prescribed by such local authorities for safety zones, parking and cab stands, but nothing herein contained shall be construed as superseding or conflicting with section four hundred and forty- four of the penal law. 2. The driver or person in charge of a motor vehicle, before leaving the same standing unattended on the public streets, shall apply the emergency brakes. No person without authority of such driver or person in charge shall climb upon such vehicle or sound any horn or signaling device, or attempt to manipulate any of, the machinery or set such vehicle in motion, or in any way interfere with such vehicle; provided, however, that for the purpose of getting away from the place of standing, a driver may move another vehicle which is so placed that he cannot get his vehicle out. 3. No person shall deface, injure, move or interfere with any sign, post, standard or any signaling device sanctioned, installed, or placed by local authorities for the purpose of directing, restricting or regulating traffic or establishing zones. 4. When a vehicle stands on a steep incline it shall be so placed that when the brake is released it will run into the curb. 5. Any vehicle when stopped parallel to the curt) shall stop as near to the curb as practicable; with wheels, both front and rear, not more than six inches from the curb. 6. No vehicle shall stop with its left side to the curb, except in such streets as may be designated as one-way traffic streets and where road excavation or other legalized obstruction prevent the operation of this regulation. 7. Except in an emergency or when advised to do so by a police officer, no vehicle shall be stopped or left standing within the intersection of any cross street; within ten feet of any crosswalk or street crossing or alley corner, except where traffic officers are on duty; within ten feet of any fire hydrant unless the vehicle is actually in charge of some person capable of driving it; in such position as to prevent another vehicle already stopped near the curb from moving away; in front of or within fifteen feet of either side of the entrance to any theatre, auditorium, or other building where large assemblages of persons are being held, except to take on or to discharge passengers or freight and then only for such length of time as is necessary for such purpose; in any portion of any street where street surface cars stop to receive or discharge passengers, except as otherwise provided. 8. No vehicle shall be stopped in any street except close to the curb thereof, unless in case of emergency or to allow another vehicle, street surface car or pedestrian to cross its path. This regulation shall not be construed to prevent local officials designating portions of streets as parking spaces. 9. A person in charge or control of any vehicle standing in any street shall cause the same to be moved immediately at the request of the driver of another vehicle, the law- ful movement of which is obstructed or delayed by the standing vehicle. A vehicle waiting at the curb shall promptly give place to a vehicle about to take on or discharge passenpers. § 16. lioading and unloading veMoIes. Except at parking spaces or when authorized so to do by ordinance or regulation no vehicle shall remain backed to the curb except it be actually loading or unloading and then for no longer time than the actual loading and unloading reasonably requires. THE LAW OF THE KOAD AND OTHEK PROVISIONS. 231 § 17. Vehicles. 1. A vehicle -when loaded with any material extending at least four feet beyond ita rear shall be provided with a red flag by day on the extreme rear end of such load. 2. No person shall drive any vehicle so constructed or closed in as to prevent the driver from having a clear view ahead and at the sides of such vehicle. 3. It shall be unlawful to make repairs to any vehicle in any street or public place in a city except in an emergency. 4-. No person shall drive or conduct any vehicle which is known to him to be in such condition, so constructed or so loaded as to break down or become stalled. 5. Before removing any part of any vehicle, or any part of any harness whose removal is likely to cause accident or permit a horse or horses attached to said vehicle to run away, the horse or horses shall first be unhitched from said vehicle by the person in charge. ft. The use of a vehicle in any city or village is prohibited when it is so loaded with iron or other material as to create loud noises while in transit. 7. A vehicle unless confined to tracks shall not tow more than one other vehicle, and the connection between the two vehicles shall not be longer than sixteen feet, except that nothing in this clause shall prevent the use of more than one trailer. Each towed vehicle, except a trailer, shall have an attendant. § 18. Street surface cars. 1. During blockades or stoppages a clear space of ten feet shall be kept open between street cars opposite any alley or the center of the block if there be no alley. 2. Subject to the provisions of subdivision one of section twelve, and except by order of a member of the police force in the discharge of his duty, street cars shall have the right of way between cross streets over all other vehicles. Every street surface car shall by any signal approved by the public service commission, warn all traffic in its rear of the stopping or turning of such car. 3. The driver of any vehicle proceeding upon the tracks in front of a street car shall turn out as soon as possible upon signal of the operator of the street car. § 19. Motorcycles, bicycles and similar veMcles. 1. No person in any city shall ride any motorcycle, bicycle or other vehicle propelled by the hands or feet of the rider along or upon any public sidewalk or footpath intended for the use of pedestrians. This section shall not apply to children imder ten years of age and to persons who cannot walk by reason of being invalids or crippled. 2. No person shall drive or ride a motor vehicle, motorcycle, or bicycle in the streets of any city, town or village without having a hand on the handle-bars or steering device. 3. The driver of a two-wheeled motorcycle or a bicycle shall not carry any other ■ person thereon, except on a seat securely fastened to the machine in the rear of the driver and provided with foot rests and hand grips. 4. Bicycles shall be provided with a bell which may be heard at least one hundred feet distant, also a lamp of such illuminating power as to be visible two hundred feet ahead. Such lamp shall be lighted whenever the vehicle is ridden at any time between one-half hour after sunset and one-half hour before sunrise. § 20. Miscellaneous regulations. 1. No person shall ride upon the rear of any vehicle without the consent of the driver nor with any part of his body protruding, nor shall any person hang on to any street car or vehicle whatsoever. 2. On all automobiles requiring cranking from the street the driver thereof shall cause the brakes to remain set until after the engine is started. 232 CIVIL LAW AND PEACTICE. 3. No races or contests for speed shall be held upon any street without the permission of the authorities of the state, city, town or village having jurisdiction of such street and unless the same is fully and efficiently patroled for the entire distance over which such race or contest for speed is to be held. 4. No person shall coast with handsleds, bobs, carts or other vehicles, on wheels or runners upon any public sidewalk in any city; nor shall any person coast with hand- sleds, bobs or carts or other vehicles on wheels or runners upon any public street of the city except upon such streets as may be designated by the common council, board of aldermen or commission thereof. 5. No motor vehicle shall be operated in such a way as to emit unnecessary smoke or unnecessary offensive vapors within the streets of any city, town or village. 6. No person shall fail, neglect or refuse to comply with any lawful instruction, directions or regulations, displayed upon post, standard, sign or device installed or placed for the regulation, direction or instruction of traffic in any public street. § 21. Duties of local authorities. It shall be the duty of the members of the police department of every city, town or village to enforce the provisions of this chapter strictly and impartially. § 22. Po-wers of local authorities. 1. Police commissioners, common councils, boards of aldermen, commissions or any other official body having charge of the streets in cities and boards of trustees in villages are hereby authorized to designate streets and ways in which vehicles shall pass in one direction. All vehicles shall proceed in such streets and ways only as the Bignboards and conspicuously displayed and visible regulation upon such street and ways shall define. The direction in which vehicles may proceed shall be so conspicu- ously marfeed with signs or signals as to indicate the rule and regulation in regard thereto and the direction in which all vehicles shall so travel. 2. Whenever the police department of a city or the president of a village shall deem it advisable during a fire or at the time of an accident or special emergency and for such period of time only as is necessitated thereby, for the public safety or convenience, temporarily to close any street or part thereof to vehicular traffic, or to vehicles of a certain description, or to divert the traffic thereof, or to divert or break a course of pedestrian traffic, said department or official shall have power and authority so to do. Local authorities may also by general rule, regulation or ordinance exclude vehicles used solely or principally for commercial purposes from any park or part of a park system where such general rule, regulation or ordinance is applicable equally and generally to all other vehicles used for the same purpose; provided, that at the entrancs or at each entrance if there be more than one, to such park from which vehicles are so excluded, there is posted a sign plainly legible from the opposite side of the highway on which said park opens, plainly indicating the restriction. 3. In addition to other powers delegated by this chapter, and to restrictions herein- after provided, local authorities in cities are hereby empowered to make, enforce and maintain such additional reasonable ordinances, rules and regulations governing traffic as special local conditions may make necessary, and to prescribe penalties therefor, provided proper notices of such regulations be posted conspicuously upon the streets to which such regulations apply. Subject to this chapter the power now or hereafter vested in local authorities to license and to regulate the use of highways for processions and assemblages shall remain in full force and effect, and all ordinances, rules anil regulations which may have been or which may be hereafter enacted in pursuance of such powers shall remain in full force and effect. 4. Local authorities shall have no power to pass, enforce or maintain any ordinance, rule or regulation in any way in conflict with, contrary to, or inconsistent with tho THE LAW OF THE EOAD AND OTHEK PKO VISIONS. 233 provisions of this chapter, or any general law affecting vehicles which has or hereafter may be enacted, and no such ordinance, rule or regulation of such local authorities now in force or hereafter enacted shall have any force or effect, provided that nothing in this chapter shall impair the validity or effect of any ordinance regulating the speed of motor vehicles'! heretofore or hereafter made,' adopted or prescribed by cities of the first class. AETICLE 3. Penalties; Misceixaneous Pbovisions. Section 30. Penalties. 31. Publication and distribution of regulations. 32. When to take effect. § 30. Penalties. 1. Except as otherwise provided, any person violating any provision of this chapter may upon conviction thereof be punished by a fine not exceeding ten dollars for the first offense and not less than ten dollars or more than twenty-five dollars for the second offense, or by imprisonment for not less than two or more than fifteen dajs. The third or any subsequent offense within one year shall be a misdemeanor and upon conviction therefor may be punishable by a fine not exceeding one hundred dollars or imprisonment not exceeding six months or both such fine and imprisonment in the discretion of the court. 2. All fines, penalties and forfeitures, collected under this act in a city, town or village shall be paid to the said city, town or village and credited to the general fund. § 31. Pnblicatioii and distribntion of regnlations. This chapter shall be printed in pamphlet form by the secretary of state, and a copy thereof either mailed or given by him to each person, firm or corporation to whom a motor vehicle license or chauffeur's license is issued during the period of one year from the time this chapter takes effect, and subsequently to each such person, firm or cor' poration to whom a license has not previously been issued during the period mentioned. The police department of each city and village shall see that this chapter is posted in all public stables, and garages and street car barns and at hack, cab and express stands and shall keep copies of it at all other stations and issue it upon application. § 32. Wben to take effect. This chapter shall take effect immediately. 234: CIVIL LAW KNB PEACTICE. CHAPTER XIL TOETS OE WEOWGS, AND EIGHTS OF ACTION AEISING THEEEFEOM. Section 1. Definition and nature. 2. Conversion. 3. Conversion; act of agent. 4. Conversion; demand. 5. Conversion; damages. 6. Replevin; or action to recover chattel. 7. Replevin; against whom maintained. 8. Replevin; necessity of demand. 9. Replevin ; plaintiff must be entitled to possession. 10. Deceit. 11. Fraud. 12. Suppression of truth as fraud. 13. Proof of fraud. 14. Trespass on lands, who may maintain action. 15. What constitutes trespass. 16. Liability for trespass. 17. Trespass by a,nimals. 18. Negligence. 19. Presumption of negligence. 20. Contributory negligence. § 1. Deiinition and nature. There is yet to he formulateid. an accurate and perfect definition of a tort. It has been described as a wrong independent of contract, although it is conceded that a tort may grow out of, or make part of, or be coincident with a contract, and that precisely the same state of facts, between the same parties, may admit of an action either founded on a contract or founded on a wrong done. Ordinarily, the essence of a tort consists in the violation of some duty due to an individual, which duty ia a thing different from a mere contract obligation. In a general way a tort is distinguished from a breach of contract in that the latter arises under an agreement of the parties, whereas the tort ordinarily is a violation of a duty fixed by law, independent of contract or the will of the parties. (Rich v. N. Y. C. & H. B. R. B. Co., 87 IST, Y. 382, 390; Bmch V. InterhorougTi B. T. Co., 187 IST. Y. 388.) An omission to per- form a contract obligation is never a tort unless that omission is also an omission of a legal duty, {Bich v. N. Y. C. & H. B. B. B. Co., 87 IST. Y. 382, 398.) As has been stated in the chapter relating to the jurisdiction of a TORTS OR WRONGS, AND RIGHTS OF ACTION. 235 justice of the peace all wrongs cannot be redressed in a justice's court, and in this chapter such wrongs only as are within a justice's jurisdiction will be considered. § 2. Conversion. Conversion at law is defined as an unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner's rights. (Bouvier's Law Diet. ; Hinkle Iron Co. V. Kohn, 184 App, Div. 181, 171 N. Y. Supp. 537.) A constructive conversion takes place when a person does such acts in reference to the goods of another as amounts in law to the appropriation of the goods to himself. Every unauthorized taking of personal property, and all inter- meddling with it, beyond the extent of the authority conferred, in case a limited authority has been given, with intent so to apply and dispose of it as to alter its condition or interfere with the owner's dominion, is a conversion. (Laverty v. Snethen, 68 N. Y. 522, 524.) A conversion seems to consist of any tortious act by which the defendant deprives the plaintiff of his goods. {Spencer v. Blackmdn, 9 Wend. 167.) A wrongful intention is not an essential element of conversion, and it is sufficient if it appears that the owner has been deprived of his property by the defendant's unauthorized act in assuming dominion and control. (Boyce v. Broadway, 31 N. Y. 490; Industrial & General Trust v. Tod, 170 N. Y. 233, 245.) To recover in trover, there must have been possession of the property by the plaintiff, or there must be an existing right to take immediate actual possession of it. {Clements v. Yturria, 81 N. Y. 285 ; Petrie v. Stark, 79 Hun, 550, 29 N. Y. Supp. 881.) An action to recover damages for the conversion of chattels is a strictly legal one which cannot be main- tained unless the plaintiff is entitled to the immediate possession of the property, if in existence. (Deeley v. DwigM, 132 N. Y. 59.) A mere equitable interest without legal title or possession is insufficient to sustain the action. {Bryan v. Hampton, 32 St. Rep. 771, 10 N. Y. Supp. 372 ; Hinkle Iron Co. v. Kohn, 184 App. Div. 181, 171 N. Y. Supp. 537.) § 3. Conversion ; act of agent. It is important to keep in view the well-recognized distinction between acts which will constitute a conversion and acts which are simply a breach of duty. If an agent, authorized to sell and deliver the property of his principal, disobeys instructions as to price only, he will be liable tO; his principal for misconduct, in the nature of an action on the case, but will not be liable for a conversion ; but if he sells and delivers the prop- 236 CIVIL LAW AND PKACTICE. erty in disobedience to instructions not to part with the property until he has received the purchase money, he is liable for a conversion although there was no wrongful intent on his part. (Laverty v. Snethen, 68 N. Y. 522; Comley v. Dazian, 114 IST, Y. 161.) It has been held that the omission or refusal by a factor, agent or trustee to pay over moneys received by him in the course of his agency or trust will not lay the foundation of an action of trover, as the factor, agent or trustee is not bound to pay over the specific money that he receives, and is only liable for it upon his contract of agency. (Harris v. Schultz, 40 Barb. 315; Innovation Trunk Co. v. Plati, 56 Misc. 645, 648, 107 ]^. Y. Supp. 816.) But this doctrine does not seem to be generally accepted as law. A commission agent or factor cannot deal with the property of his principal, or with the proceeds thereof, as his own. Where one entrusts his property to another for a particular purpose it is received in a fiduciary capacity, and when turned into money that is also received in the same capacity. It does not belong to the agent, and he can lawfully exercise no power or authority over it except for the benefit of his prin- cipal, and only as authorized by him. If the agent uses it for his own purposes, or fails to pay it over upon a reasonable demand, it is a con- version of that which does not belong to him. {Bratlon v. Ferrin, 171 N. Y. 235 ; Baker v. New Yorh National Exchange Banh, 100 IST. Y. 31 ; Com. Nat. Bank of Penn. v. IleiTbronner, 108 IST, Y. 439, 444 Middleton v. Tromhly, 125 ¥. Y. 520; Moffat v. Pulton, 132 N. Y. 507, 515.) § 4. Conversion ; demand. It is the universal rule in this State that where property comes lawfully into the possession of a party he cannot be charged for a conversion in failing to surrender it to the owner unless a demand therefor is made; (Gillet v. Roberts, 57 W. Y. 28 ; Madison v. Gross, 54 App. Div. 129, 66 N. Y. Supp. 412; Williamson v. Seely, 22 App. Div. 389; Samuel v. Tlolhrook, etc., Corp., 156 App. Div. 485, 141 N. Y. Supp. 275), and this is the rule although the defendant sets up a hostile title and claims to own the property. (Goodiuin v. Wertheimer, 99 IST. Y. 149; Castle v. Com. Exchange Banh, 148 ISF. Y. 122 ; Tompkins v. Fonda Glove Lining Co., 188 N. Y. 261.) But this rule has no application in a case where the lawful custodian of property commits an overt and positive act of con- version by an unlawful sale or disposition of the property. (Pease v. Smith, 61 N. Y. 480 ; MacDonald v. Buffalo L. T. & 8. D. Co., 193 N. Y. 92.) An unauthorized sale of personal property, with delivery of pos- session, is a conversion. (Comley v. Dazian, Hi N. Y. 101.) A demand and refusal will not establish a conversion when at the time of the demand TOKTS OE WKONGSj AND EIGHTS OF ACTION. 237 the property is not in the possession of the defendant, or is not in exist- ence. {Dakin v, Elmore, 127 App. Div. 457 ; Salt Springs Nat. Bank v. Wheeler, 48 N. Y. 492; Shipley, etc., Co. v, Mager, 165 App. Div. 866, 150 N. T. Supp. 969.) A demand and refusal are not a conversion, but simply evidence of it. If the property came lavpfuUy into the defendant's possession, a demand is necessary to place him in the wrong; but if he has already converted the property no demand need be made or proved. The principle underlying the different instances of where conversion will lie is the same in all, requiring that, before an action for conversion can be maintained, the person sought to be held shall, either by his own act or the act of the owner of the property, be placed in the wrong. (Esmay v. Fanning, 9 Barb. 176 ; Pease v. Smith, 61 N". Y. 477, 481 ; Castle v. Com Exchange Bank, 75 Hun, 89, 148 N". Y. 122 ; Smith v. Smalley, 19 App. Div. 519.) Failure to deliver when demand is made is not equivalent to refusal. It is important to know the particulars of the refusal. Not every refusal is evidence of conversion. (Halbran v. Gray, 25 Misc. 693. ) If a demand for property is made by a person entitled to receive it, and there is an absolute and tmqualified refusal to deliver, the conversion will be suffi- ciently proved, for such refusal is ordinarily cor.clusive evidence of a con- version; but if the refusal is qualified, the question then is whether the qualification is reasonable ; and if reasonable and made in good faith, it is no evidence of conversion. (McEntee v. New Jersey Steamboat Co., 45 N. Y. 34.) "Where words are relied upon as evidence of the conversion, they must be uttered under such circumstances, in proximity to the prop- erty, as to show a defiance of the owner's right, a determination to exercise dominion and control over the property and to exclude the owner from the exercise of his rights. (Oillet v. Roberts, 57 N. Y. 28, 33. See Parmenter v. American Box Machine Co., 44 App. Div. 47.) The silence of the person upon whom a demand is made for the delivery of property may or may not be equivalent to a refusal, according to the circumstances surrounding the parties and the nature and location of the ' property. (See Richards v. Pitts Agricultural Works, 37 Hun, 1 ; Monnot V. Ibert, 33 Barb. 26; Lockwood v. Bull, 1 Cow. 322, 330; Dunlap v. Hunting, 2 Denio, 643 ; Durell v. Mosher, 8 Johns. 445.) The demand for the possession of the property must be made by the owner or his authorized agent, and a demand by a third person not in privity with the owner is not sufiBcient. (Castle v. Corn Exchange Bank, 75 Hun, 89.) The demand must be made of the principal or master and not of a mere agent or servant. An agent or servant having the custody merely of goods cannot bind the principal by acceding to the demand of a 238 CIVIL LAW AND PEACTICE. third person, nor, on the other hand, hy refusing to deliver the propert;^ unless acting under the direction of the principal or master in refusing to deliver. (Goodwin v. Wertheimer, 99 ^N". Y. 149; Cushman v. Oothout, 88 Hun, 54.) § 5. Conversion; damages. In actions for conversion, and actions of a similar character, the general rule is that the value of the property at the place of conversion is the measure of the plaintiff's damage. (Tiffany v. Lord, 65 N. Y. 310; Par- menter v. Fitzpatrick, 135 N. Y. 190, 196; Fleischmann v. Samuel, 18 App. Div. 97.) But this rule is subject to important qualifications and exceptions. Among these are cases where there is no market value for such or like property at the place of conversion, in which case resort is had to evidence of market value at the nearest place where there is a market whatever may be the distance from the place of the conversion. (Keller v. Paine, 34 Hun, 167, 176 ; Harris v. Panama B. E. Co., 58 IST. Y. 660 ; Bourne v. Ashley, 1 Lowell, 27.) A second exception is in case of an action against a common carrier, where goods have been lost, destroyed or damaged in transit, in which action the damages recoverable against the carrier are based upon the market value at the point of destination. (Holden v. N. Y. C. B. B. Co., 54 K Y. 662 ; Siurgess v. Bissell, 46 N. Y. 462.) A third exception to the general rule is in case of the conversion of goods by a stranger at an intermediate point while in the course of transportation to a profitable market where they would certainly have arrived but for the interference of the stranger, in which case the owner is entitled to recover the value of the goods at the place of destination, less the cost of carriage and the cost of effecting a sale in that market. (Walling ford v. Kaiser, 191 N. Y. 392.) § 6. Replevin ; or action to recover a chattel. The action of replevin, or, as it is sometimes termed, the action to re- • cover a chattel, is within the jurisdiction of a justice of the peace where the value of the chattel, or of all the chattels, as stated in the affidavit made on the part of the plaintiff, does not exceed two hundred dollars. (Just. Ct. Act, § 3.) If the summons in such action has been personally served upon the defendant, or if he appears in the action, the justice must proceed to hear and determine it although the plaintiff has not required the chattel to be replevied, or the constable has not been able to replevy it. (Just. Ct. Act, § 124.) ■ It will not be necessary, therefore, to con- sider in this connection the provisional remedy which may be resorted to in the action. (See Just. Ct. Act, §§ 89-124.) TORTS OE WRONGS, AND EIGHTS OF ACTION. 239 § 7. Replevin ; against whom maintained. Eeplevin is essentially a possessory action, and it is requisite for its maintenance that the defendant should be in possession or control of the chattels sued for at the time the action is commenced, except where there has been a wrongful disposition by the defendant of the subject of the action. (Sinnott v. Feiock, 165 N. Y. 444; Wheeler v. Allen, 51 N. Y. 37, 42 J Christie v. Corbett, 34 How. 19 ; Alaske Unterstuetzung Verein v. Wall, 28 Misc. 17i;Mahr v. Livingstone, 55 Misc. 133 ; Fox v. Wall, 161 N. Y. Supp. 264.) It was for some time a disputed question in this State whether replevin could be maintained against a party who was not in possession, either actual or constructive, of the chattels. And it was finally decided and is now held that where a person is in possession of the goods of another which he is bound to deliver to the owner upon demand, if he, without the authority from the owner, parts with that possession to one who refuses to deliver them, he is responsible in detinue equally with the party refusing. He contributes to the detention. It is the consequence of his own wrongful delivery. The action in such cases may properly be brought against both because the acts of both unite in producing the detention. (Nichols v. Michael, 23 N. Y. 264; Bamett v. Selling, 70 N. Y. 492; Furher v. National Metal Co., 118 App. Div. 263, 271; Dunham v. Troy Union R. B. Co., 3 Keyes, 543.) Thus, the fraudulent vendee of goods and his assignee thereof for the benefit of creditors are liable to a joint action by the vendor to recover possession. (Nichols v. Michael, 23 N. Y. 264.) But this rule applies only where the fraudulent vendee has parted with the property voluntarily; and, therefore, replevin will not lie against the vendee of goods fraudulently purchased, where prior to a demand for their return and before the commencement of the action they have been taken from him by process legal as to him, namely, by execution and not by any voluntary act upon his part. (Sinnott v. Feiock, 165 N. Y. 144.) § 8. Replevin ; necessity of demand. The action of replevin has its origin in and is based upon an alleged tortious act of the defendant. It is an action ex delicto. (Witty v. Camp- hell, 44 N. Y. 410 ; Schaefer v. Empire Lithographing Co., 28 App. Div. 469 ; Bernheimer v. Hartmeyer, 50 App. Div. 316.) It is therefore neces- sary to the maintenance of the action against one who acquired possession of the property lawfully, to prove a demand for the return of the property. (Heinrich v. Van Wrichler, 80 App. Div. 250; People ex rel. Heine Piano Co. V. Lauer, 80 Misc. 436, 141 N. Y. Supp. 299.) A lawful possession in the defendant continues lawful until it is turned into an unlawful deten- 240 CIVIL LAW AND PEACTICE. tion by a demaDd and refusal (Goodwin v. V/ertheimer, 99 IST. Y. 149) unless the defendant himself ends the lawful possession by some act of his which is inconsistent with the plaintiff's ownership and right of possession. The only purpose of proving a demand and a refusal is to show that a lawful possession has been thereby turned into an unlawful one. But a demand and refusal is never necessary before the commencement of the action where the chattel was wrongfully taken from the possession of tha plaintiff. (Milligan v. Broohlyn V/arehouse Co., 34 Misc. 55 ; Schwabe- land V. Holahan, 10 Misc. 176, 30 N. Y. Supp. 910.) Where the possession of a chattel is obtained by the defendant under a conditional contract for its sale a demand for the money due under the contract is not sufficient. The demand should be in the alternative, for the money due or for the chattel itself. {Moran v. Abhott, 26 App. Div. 570.) And where a sale of goods was induced by fraud en the part of the pur- chaser and they have passed into the possession of an assignee for the bene- fit of creditors who had no knowledge of the fraud, and no proceedings have been taken by the vendor to rescind the sale prior to the assignment, there must be a demand of the goods from the assignee and a refusal to deliver before an action can be maintained against him by the vendor for the recovery of the possession of the goods. {Goodwin v. Wetlieimer, 99 !N". Y. 149.) The refusal of a servant to deliver goods intrusted to him by his master, on a demand by a stranger, is not sufficient evidence to maintain replevin against the servant, nor against the master when a demand and refusal are necessary to make the possession of the defendant wrongful, unless the servant acted under the direction of the master in refusing to deliver the goods. . {Mount v. Deride, 5 Hill, 455 ; Goodwin v. Wertheimer, 99 N, Y. 149.) § 9. Replevin; plaintiff must be entitled to possession. An actual possession of property by the plaintiff, coupled with an equi- table interest therein at the time of its wrongful taking, is sufficient to support the action of replevin and to entitle the plaintiff to the return of the property, although the general property and the right of immediate possession be at the same time in a stranger, the defendant showing no privity between himself and such stranger. {Johnson v. Carnley, 10 N. Y. 570 ; Frost v. Mott, 34 N. Y. 253, 257 ; Appleby v. Holland, 8 App. Div. 375.) But a mere right in equity to recover possession of goods is not sufficient to support the action. {National Bank of Deposit v. Sogers, 1 App. Div. 623 ; Deeley v. Dwight, 132 N". Y. 59 ; Wheeler v. Allen, 51 N. Y. 37.) The plaintiff must have such an interest in the chattel as to TOKTS OR WRONGS, AND RIGHTS OF ACTION. 241 give him the right to immediate possession ; and the title must be a legal title, not a right enforceable only in equity. (Haas v. AUieri, 2 Misc. 252 ; Fulton V. Fulton, 48 Barb. 581.) It is not essential that the property sought to be recovered should remain in its original form in order to support replevin, provided it can be identi- fied. {Clemmons v. Brinn, 36 Misc. 157.) But replevin will not lie for the recovery of money unless specifically described and the plaintiff shows himself entitled to the possession of the specific money as described. (Sager V. Blain, 44 N. Y. 445.) The same rule applies to all personal property, and to maintain an action for its recovery it must be identified so that delivery of the specific goods to which the party is entitled may be made. {Graves v. Dudley, 20 N. Y. 76, 79, 80.) § 10. Deceit. Where an action is brought to recover damages for deceit, the rule as to what the plaintiff is required to prove to maintain it is well settled. He is bound to prove representations, falsity, scienter, deception and injury. (Arthur V. Gnswold, 55 N. Y. iOO ; Brackett v. Griswold, 112 N. Y. 454; Fairchild v. McMahon, 139 N. Y. 290 ; Ettlinger v. Weil, 94 App. Div. 291, 87 N. Y. Supp. 1049; Taylor v. Commercial Bank, 174 N. Y. 181; Grosjean v. Galloway, 82 App. Div. 380, 81 N. Y. Supp. 871.) In other words, there must have been a false representation, knovra to be such, made by the defendant, calculated and intended to influence the plaintiff, and ■vyhich came to his knowledge, and in reliance upon which he, in good faith, parted with property or incurred the obligation which occasioned the injury of which he complains. All these circumstances must be found to exist, and the absence of any one of them is fatal to a recovery. (Brackett v. Griswold, 112 N. Y. 454; Darling v. Elock, 33 App. Div. 270, 53 N. Y. Supp. 593.) If the plaintiff asserts that he had no con- fidence in the defendant and did not believe or rely on what he said, the action should be dismissed. (Ochs v. Woods, 160 App. Div. 740, 146 N. Y. Supp. 4.) It is not necessary to the maintenance of this action that the false repre- sentation should be made by the defendant personally. If he authorized and caused it to be made it is the same as though he made it himself. Nor is it necessary that it should have been made directly to the plaintiff. If it was made to the public at large for the purpose of influencing the action of any individual who may act upon it, any person so acting upon it and sustaining injury thereby may maintain the action. (Brackett v. Gris- wold, 112 N. Y. 454; Keeler v. Seaman, 47 Misc. 292.) A person who has been induced by false representations to enter into a 16 242 CIVIL LAW AND PRACTICE. contract does not owe to the person -who makes the representations any duty of active vigilance to ascertain their truth or falsity. If the facts stated are apparently within the personal knowledge of the one making them, the person to whom they are made may rely upon them and act upon them without adopting any means to discover the imposition. It is not necessary that the facts falsely stated should he the sole inducement to the making of the contract. If they were an inducement, and operated to persuade the party to enter into a contract, which, hut for them he would not have made, that is a sufficient inducement to serve as a basis for his action for deceit, although he had other good reasons for making the con- tract. (Delano v. Bice, 23 App. Div. 327, 48 IST. Y. Supp. 295 ; Morgan V. Skiddy, 62 N. Y. 319.) In a proper case an order of arrest may accompany the summons in an action for deceit. (See Just. Ct. Act, §§ 60, 61.) § 11. Fraud. In the section immediately preceding, the remedy hy action for deceit where the plaintiff has sustained damage through the false representations of the defendant have been considered at some length. There are other rights of action for fraud causing damge, in which the element of actual false representation does not enter, that will be here briefly considered. In another chapter, fraud in the sale of personal property has been incidentally mentioned, and in another chapter the right to rescind a contract induced by fraud has been considered, and the elementary doc- trine stated that one who wishes to rescind a contract on this ground must place or offer to place the other party in the same position, so far as he has parted with value, that he was in prior to its execution. (Mincho v. Bankers' Life Ins. Co., 124 App. Div. 578, 109 N. Y. Supp. 179.) A vendee of real estate, who was induced to purchase by false representations, has an election of remedies. He may rescind the contract, and after an offer to reconvey, may recover back the consideration paid, or he may retain the land and recover damages for the fraud. (Krumm v. Beach, 96 N". Y. 398.) If he does not rescind, and offer to reconvey, he may only sue for damages for the fraud, or plead a counterclaim for such damages in an action against him for the purchase price. (8oper v. St. Regis Paper Co., 38 Misc. 294.) But it is essential to the right to any form of relief that the defrauded party shall assert that right promptly, as it is elementary that a person induced by fraud to enter upon a contract must promptly repudiate the same upon the discovery of the fraud, and that he cannot quietly sleep upon his rights for months, (Hanenhaum v. Federal Match Co., 180 :Nr. Y. 75.) TOKTS OK WKONGS, AND RIGHTS OF ACTION. 243 § 12. Suppression of truth as fraud. It is not always necessary that there should be false representations to constitute actionable fraud. If the vendor of goods has been guilty of a fraudulent concealment of material facts in making a sale, to the injury of the vendee, an action at law may be maintained to recover damages. A suppression of the truth is equivalent to the suggestion of what is false, and where either can be proved as to a fact material to the contract the party injured may have relief against the contract. (Fleming v. Slocum, 18 Johns. 403.) To infer fraud from silence the court must find that there was some duty of disclosure. In cases of executed sales the common law rule is that the vendor is not liable for damages arising from latent defects known to him and unknown to the purchaser, except in cases where the vendor has warranted the article sold, or has made false representations, or has used some active means to conceal such defects, or some artifice to mislead or deceive the purchaser in regard to such defects, and that if the vendor is merely silent he is not responsible for damages by reason of such defects. The rule of caveat emptor applies in such cases. {Paul v. Had- Uy, 23 Barb. 521. And see Loos v. McOormach, 46 Misc. 144, 107 App. Div. 8.) The general rule is that a party engaged in a business transaction with another can commit a legal fraud only by fraudulent misrepresentation of facts, or by such conduct or such artifice for a fraudulent purpose as will mislead the other party or throw him off his guard, and thus cause him to omit inquiry or examination which he would otherwise make. A party buying or selling property, or executing instruments, must by inquiry or examination gain all the knowledge he desires. He cannot proceed blindly, omitting all inquiry and examination, and then complain that the other party did not volunteer all the information he had. But there are excep- tions to this rule. Where there is such a relation of trust and confidence between the parties that the one is under some legal or equitable obligation : to give full information to the other party — information which the other party has a right, not merely in foro conscientiae but juris et de jure, to have, then the withholding of such information purposely may be a fraud. {Dambmann v. Schulting, 75 N". T, 55.) Thus, a relation of trust and confidence exists between brothers and sisters who are tenants in common of lands, and if the brother conceals the fact that he has had a specific offer for the real estate and induces his sister to sell to him her interest at a much lower price, she is entitled to rescind the sale on discovering the offer. (Dplan v. Cummings, 116 App. Div. 787.) The same rule would apply if the sister concealed a material fact from the brother under similar cimcumstances and obtained thereby an unfair advantage over him. 244 CIVIL LAW AND PRACTICE. {Toomey v. Whitney, 94 App. Div. 154, 88 IST. Y. Supp. 216.) It is not always easy to define when this relation of trust and confidence exists, and no general rule can be formulated by which its existence can be known. (Bamhmann v. SchuUing, 75 W, Y. 55.) § 13. Proof of fraud. Praud will not be presumed and must be proved affirmatively. The presumption is always in favor of innocence and not of guilt, and if the evidence is as capable of an interpretation of innocence as of guilt it can- not be used to establish guilt ; and while fraud may be established by cir- cumstantial evidence, it can only be so established by proof of such circum- stances as are irreconcilable with any other theory than that of the guilt of the person accused of fraud. (Parfitt v. Kings County Gas Co., 12 Misc. 278 J Arthur v. Griswold, 55 N. Y. 410; Brackett v. Griswold, 112 IST. Y. 467; Nichols v. Pinner, 18 'N. Y. 295; Morris v. Talcoti, 96 K Y. 100; Constant v. University of Rochester, 133 IT. Y. 640 ; Baird v. Mayor, etc., of New York, 96 N. Y. 567, 592 ; Klein v. Gallin, 141 N. Y. Supp. 831; Halloch Co. V. Haig, 156 N. Y. Supp. 353 ; Beers v. McNaught, 175 App. Div. 643, 162 IST. Y. Supp. 514.) § 14. Trespass on lands; who may maintain action. At common law, the action for trespass upon lands was deemed to be a possessory action and one which could be maintained only by a person in the actual or constructive possession of the land at the time of the trespass, (Camphell v. Arnold, 1 Johns. 511; Tobey v. Webster, 3 Johns. 468 Stuyvesant v. Dunham, 9 Johns. Gl ; Frost v. Duncan, 19 Barb. 560 Holmes v. Seeley, 19 "Wend. 507; Van Rensselaer v. Radcliff, 10 "Wend, 639.) And it has been decided in many cases that a person out of posses- sion of real estate cannot maintain trespass while he is out of possession, {De Graun v. Warner, 89 Hun, 9; Wood v. Lafayette, 68 N. Y. 181.) The possession necessary to the maintenance. of the action need not in all cases be an actual possession ; but the plaintiff must have the actual pos- session at the time, or, what is deemed equivalent, a possession which the legal title draws after it. {Holmes v. Seeley, 19 "Wend, 507.) He must show either actual or constructive possession of the premises in question. {Carter v. Pitcher, 87 Hun, 580.) It is provided, however, by section 531 of the Eeal Property Law that a person seized of an estate in remainder may maintain an action founded upon an injury done to the inheritance notwithstanding any intervening estate for life or for years. Under this provision the owner of a farm leased upon shares to a tenant may maintain an action TORTS OE WEOA^GS, AND RIGHTS OF ACTION. 245 of trespass against a stranger who injures the inheritance while the tenant is in possession by destroying and carrying away a line fence upon the farm and closing up a right of way appurtenant thereto, which the owner was then actually using under a reservation in the lease. {Taylor v. Wright, 51 App. Div. 97. And see Thompson v. Manhattan By. Co., 130 N. Y. 360.) And under a similar provision of the Revised Statutes it was held that the owner of land in possession of a tenant for a term of years could maintain trespass for injury to the inheritance. {Smith v. Felt, 50 Barb. 612.) A person having the legal title to a vacant lot has such constructive pos- session as will entitle him to maintain trespass against one who enters upon the lot and incloses it with a fence. {Randall v. Sanders, 87 IST. Y. 578.) A deed not sufficient to convey a valid title is sufficient to lay the foundation of an adverse possession; and under such a deed, the grantee may have a constructive possession which will enable him to maintain ejectment or trespass against a stranger to the true title. The grantee of a farm, partly improved and partly uninclosed woodland, who has entered into possession of the improved lawn and occupies it, will be deemed in j)ossession of the woodland, if of suitable size, to be kept for the balance of the farm, so that he could maintain trespass against an intruder, or any person not having a superior title or a paramount right of possession. {Munroe v. Merchant, 28 N. Y. 9; Jackson ex dem. v. Woodruff, 1 Cow. 276; Thompson v. Burhans, 61 N. Y. 52; Edwards v. Noyes, 65 N. Y. 125; Miller v. Long Island B. B. Co., 71 N. Y. 380, 384; Donahue v. Whitney, 133 N. Y. 178.) But this doctrine has no application to cases where the possession of the land in question is actually in the defendant. {Zom V. HaaTce, 75 Hun, 235. And see Cravath v. Baylis, 113 App. Div. 666, 192 N. Y. 559.) A grantee of lands cannot maintain an action for a trespass committed upon the land before he acquired his title. {Litchfield v, Norwood Mfg. Co., 22 App. Div. 569.) Some damage, at least nominal, is always presumed from a trespass on land, so that an action is maintainable on mere proof of the trespass. {Pierce v. Eosmer, 66 Barb. 345.) Every person whose rights are unaffected by some statute, contract or prescription is entitled to the possession of his real property undisturbed and unmolested by others. Every man's land is, in the eye of the law, inclosed and set apart from another's either by visible and material fences or by an ideal, invisible boundary, and in either case every entry or breach carries with it some damages for which compensation can be obtained by action. {Wood v. Snider, 187 N. Y. 28.) 346 CIVIL LAW AND PRACTICE. § 15. What constitutes trespass. The owner of personal property, wtich has been wrongfully taken from him, does not commit a trespass by entering upon the realty of the wrong- doer and taking his own property, unless he commits a breach of the peace or uses unnecessary force. (Madden v. Brown, 8 App. Div. 454.) An action for trespass will lie against a person or corporation affixing telephone wires to the roof of a building owned by another; and where damages to the freehold cannot be definitely shown, the measure of dam- ages will be the value of the use and occupation to the trespasser. {Bunhe V. New York Telephone Co., 110 App. Div. 241, 97 JST. Y. Supp. 66.) Where one in making improvements trespasses on or injures his neigh- bor's property by casting material thereupon, he is liable absolutely for the damage irrespective of any question of care or negligence.' {McGdhill v. Parker Co., 49 Misc. 258; Hay v. Cohoes Co., 2 IST. Y. 159; Braisted v. Brooklyn & R. B. B. B. Co., 46 App. Div. 204 ; Wheeler v. Norton, 92 App. Div. 368, 86 IST. Y. Supp. 1095.) An unlawful entry upon premises will constitute a trespass, and it is immaterial, except on the question of damages, whether the entry is obtained by deceit, stealth, threats, force, or without consent. (Olin v. United Electric Light & Power Co.. 82 Misc. 427, 143 N. Y. Supp. 1012.) § 16 Liability for trespass. Where the relation of master and servant exists the master may be liable for the wrongful act of his servant although committed without his authority and even in violation of his instructions, provided it was com- mitted in the business of the master and within the scope of the servant's employment. (Higgins v. Watervliet Turnpike Co., 46 N. Y. 23.) But one who has advised and directed the commission of a trespass upon the rights or property of another cannot shelter himself under the plea that the immediate wrongdoer did the act in the execution of a contract, or that he came within the definition of an independent contractor as to the perform- ance of the work in which the tortious act was committed. If he advised or directed the act his liability is established. (Ketcham v. Newman, 141 ]Sr. Y. 205.) One who does an act upon the land of another with the permission and under a license from the owner cannot be a trespasser so long as the act is within the license and permission given. (^8mith v. Morse, 70 App. Div. 318.) But one who would justify under a license or permission must bring his acts within the terms of the license. He exceeds them at his peril. (^Yheelock v. Noonan, 108 N. Y. 179; Dishrow v. Westchester Hardivood Co., 17 App. Div. 610; Capel v. Lyons, 3 Misc. 73.) TOKTS OE WEONGS, AND EIGHTS OF ACTION. 247 In an action for trespass on lands the plaintiff can allege and prove all liis injuries caused by the trespass either to his person or to his personal property. (Bahr v. Boley, 85 Hun, 448.) But the damages recoverable must be the proximate result of the wrongful act of the defendant and not too remote. (Hollenheck v. Johnson, 79 Hun, 499.) § 17. Trespass by animals. Much litigation has arisen out of trespasses by cattle ; and, as the actions for the resultant damages are usually brought in a justice's court, it is important that the legal principles underlying the right of action should be understood. By the common law it was as unlawful for the beasts of a neighbor to cross the invisible boundary line by which every man's land was deemed to be inclosed as it would be to overleap and throw down the most sub- stantial wall. At common law every person was bound at his peril to keep his cattle within his own possessions, and if he failed to do so he was liable for their trespasses upon the lands of another whether the lands trespassed upon were inclosed or not. There is an exception to the common law rule in favor of a person lawfully driving domestic animals along a highway. If such person exercises due care in so doing, he is not Hable for injuries which they do by escaping from his control upoji the adjoining lands if they are pursued and promptly removed. (Bightmire v. Shepard, 36 St. Eep. 768, 12 IST. Y. Supp. 800 ; Wood v. Snider, 187 N. T. 28.) Such casual trespassing is an inevitable incident to the right to use the highway, and where the owner of lands adjoining a highway leaves the same wholly unfenced, he therefore adds to the possibility of such casual trespass. The exception to the common-law rule that prevents the owner of land adjoining a highway from recovering damages for an inadvertent trespass of cattle from such highway, does not apply where the cattle trespassing upon adjoining lands were unlawfully in the highway, nor to trespasses upon lands other than those adjoining the highway. If cattle stray from the highway upon the adjoining lands of one owner, and from the lands of such owner, upon the lands of another, the latter owner has his remedy by action to recover his damages for the trespass. (Wood v. Snider, 187 N". Y. 28.) Where the cattle of several owners have trespassed upon the lands of another, each owner is liable only for the damage done by the animals owned by him if such damage can be ascertained and separated from the damage done by the others ; if the damage cannot be so ascertained, and in the absence of any proof of the damage done by the cattle of each indi- vidual owner, each will be held liable for such part of the damage done by 248 CIVIL LAW AND PEACTICE. i all the cattle as the number of cattle owned by him bears to the whole number of cattle jointly trespassing. {Parienheimer v. Van Order, 20 Barb. 479 ; Wood v. Snider, 187 N. Y. 28.) No action lies for the trespass of a dog unaccompanied by his owner. (Buchanan v. Stout, 123 App. Dir. 648.) § 18. Negligence. Negligence consists in the commission of some lawful act in a careless manner, or in the omission to perform some legal duty, to the. injury of another. It is essential to a recovery in the latter case, to establish that the defendant owed at that time some specific, clear, legal duty to the plaintiff or the party injured. (Nicholson v. Erie By. Co., 41 N. Y. 525.) As liability for an injury to one person by the alleged negligence of another may depend upon the question whether there has been an omission to perform a legal duty which the person charged with negligence owed to the person injured, it is obvious that any attempt at a full discussion of what would constitute negligence in any case which might arise would open up the entire subject of the duties which one person owes to another in any and all the various relations, situations and employments which persons assume or in which they may engage. Such a discussion can be but imperfectly presented in a treatise on the law of negligence and has no place here. § 19. Presumption of negligence. In some cases the very fact of injury under the surrounding circum- stances will raise a presumption that the injury occurred through negli- gence. To raise this presumption in an action to recover damages for injuries claimed to have been caused by the negligence of another there must be evidence from the surrounding circumstances which, in the absence of explanation, justifies the inference that the accident would not have occurred but for the negligence of the defendant or his or its agents. (Grant v. Metropolitan Street By. Co., 99 App. Div. 422, 91 N. Y. Supp. 202.) In such cases the maxim res ipsa loquitur applies, which literally translated means that " the thing speaks for itself," and is merely a short way of saying that the circumstances attendant upon the accident are themselves of such a character as to justify a jury in inferring negliger.ce as the cause of the accident. (Oriffenr. Maurice, IQQ 'S.Y. 188.) This rule does not dispense with evidence of the defendant's negligence but on the contrary expressly requires it. The effect of the rule is that evidence of the attendant circtimstances is sufficient for an inference of negligence without proof of any specific negligent act. But the attendant circum- TOKTS OK WKONGS. AND EIGHTS OF ACTION. 249 stances shown must be such as will warrant an inference not of negligence only, but of the defendant's negligence; an inference that the injury is attributable to some violation of the defendant's duty. Negligence of a defendant is never presumed, but the burden of proving it is on him who alleges it. {Fink v. Blade, 66 App. Div. 105.) § 20. Contributory negligence. It was formerly the general rule, in an action of negligence, that the plaintiff was bound to prove, not only the negligence of the defendant, but also his own absence of contributory negligence. It is now, however, pro- vided by section 265 of the Oivil Practice Act that contributory negli- gence is a defense to be alleged and proved by the defendant. This statute, however, does not interfere with the general rule that con- tributory negligence, if proved, will bar the plaintiff from recovering for the negligence of the defendant. But the contributory negligence which will bar the plaintiff must be the proximate and not the remote contribut- ing cause to the injury. The proximate cause of an event is that which in a natural sequence, unbroken by any new cause, produces that event, and without which the event would not have occurred. The plaintiff's fault will not affeot his cause of action unless it proximately contributed to the injury. Contributory negligence, however great, is no defense to an action for damages for an injury which was reckless, willful or wanton. {Rider v. Syracuse B. T. Co., 171 N. Y. 139.) 250 CIVIL LAW AKD PEAOTICE. OHAPTEE XIIL EVIDENCE. Section 1. Evidence and proof. 2. Relevancy. 3. Preliminary or introductory evidence. 4. Competency. 5. Cumulative evidence. 6. Circumstantial evidence. 7. Weight of evidence. 8. Matters judicially known without proof. 9. Presumptions. 10. Burden of proof. 11. Best and secondary evidence. 12. Parol evidence to vary writing. 13. Hearsay. 14. Pedigree declarations. 15. Admissions. 16. Admissions over telephone. 17. Opinions. 18. Impeachment of witness. 19. Books of account. 20. Statutory provisions as to evidence. § 1. Evidence and proof. That wliicli is legally offered by litigant parties to induce a decision of a question of fact, as contradistinguished from all comment and argument on the subject, falls within the description of evidence. When such evi- dence is sufficient to produce a conviction of the truth of the fact to be established, it amounts to proof. Strictly speaking, proof is the result of evidence. Proof is the state of mind vsrhich it is the object of evidence to produce. (Chamberlayne's Modem Law of Evidence, § 8.) § 2. Relevancy. The law does not permit a litigant to present as evidence matters which do not tend to prove or disprove any fact involved in the litigation. The fact as to which evidence is directed must be relevant to the issues litigated.. A relevant fact has been defined as one which renders probable the exist- ence or nonexistence of the fact in issue. (Kemhle v. National Bank of Jlonduot, 94 App. Div. 544, 546. See Chamberlayne's Modern Law of Evidence, § 54.) Evidence is relevant when it bears upon any of the issues to be tried, or when it bears upon any question which is to be deter- EVIDENCE. 251 mined upon evidence. It is irrelevant when it does not bear upon any such issue or question. (2 Wait's L. & Pr. 638.) Evidence may be relevant as to one of two defendants and irrelevant as to the other. {Black v. Foster, 28 Barb. 387.) The meaning of the word " relevant," as applied to testi- mony, is that it directly touches upon the issue which the parties have made by their pleadings, so as to assist in getting at the truth of it. The word comes from the ^vench: reliever, which means to assist ; and whatever testi- mony is offered which would assist in knowing which party speaks the truth of the issue, is relevant ; and when to admit it will not override other formal rules of evidence it should be received. In determining whether evidence is relevant all the issues must be kept in view, as it may be admissable as to one though not as to another. {Plainer v. Plainer, 78 N. Y. 90.) Evidence relevant to the issue on trial cannot be excluded because it contradicts another witness called by the same party, whether such witness is friendly or hostile. {De Noyelles v. Delaware Ins. Co., 78 Misc. 649, 138 IST. Y. Supp. 855.) § 3. Preliminary or introductory evidence. Evidence may be in a sense preliminary or introductory, and so may not reach at once the identical matter in dispute, but if it leads up to it, and may be followed by evidence bearing directly upon the disputed matter, it is not objectionable. {Stewart v. Harris, 101 App. Div. 181, 91 IST. Y. Supp. 438.) In order that a witness should be permitted to testify it must be proved to the satisfaction of the court that he is possessed of adequate knowledge regarding the subject as to which he proposes to speak. (Chamberlayne's Modem Law of Evidence, § 1760.) § 4. Competency. The evidence offered may be competent or incompetent. " By com- petent evidence is meant that which the very nature of the thing to be proved requires, as the fit and appropriate proof in the particular case, such as the production of a writing, where its contents are the subject of inquiry." (Greenleaf on Evidence, § 2; Porter v. Valentvne, 18 Misc. 213.) Evidence may in itself be competent but the witness who gives it may be incompetent. In such case an objection to the competency of the .witness would present the question of competency for determination while ,an objection that the evidence is incompetent would not. {Hoag v. Wright, 174 N. Y. 36. See also Chamberlayne's Modem Law of Evidence, § 13.) § 5. Cumulative evidence. Cumulative evidence is evidence of the same kind to the same point. A stage will usually be reached in any case at which the proof will be found 252 CIVIL LAW AND PEACTICE. to liave been introduced with sucli fullness that if the contention of the litigant in support of which it is adduced is to be credited at all by the tribunal, it will be believed then. (Chamberlayne'a Modern Law of Evi- dence, § 549.) § 6. Circumstantial evidence. Circumstantial evidence is evidence obtained from circumstances which necessarily or usually attend facts of a particular nature from which arises presumption ; or in other words circumstantial evidence consists in reason- ing from facts which are known or proved, in order to establish such as are conjectured to exist. In order to prove a fact by circumstances therq should be positive proof of the facts from which the inference or conclu- sion is to he drawn. The circumstances themselves must be shown and not left to rest in conjecture, and when shown it must appear that the inference sought is the only one which can fairly and reasonably be drawn from those facts.. The process of reasoning from known or proved facts to establish such as are conjectured to exist is fatally vicious if the circum- stance from which the conclusion is sought to be deduced depends itself upon conjecture. (People v. Kennedy, 32 N". Y. 141 ; People v. Harris, 136 N. Y. 429 ; Buppeii v. Broohlyn Heights B. B. Co., 154 IST. Y. 90. And see Chamberlayne's Modern Law of Evidence, § 15.) § 7. Weight of evidence. Preponderance of evidence is, as the term imports, supei'ior weight of evidence, and necessarily presupposes proof on each side sufficient, cua- sidered by itself, to support the allegations to which it relates. The weigh- ing of the whole evidence is the function of the justice when no jury is called, and of the jury when a jury is in attendance, and involves a con- sideration of the credibility of witnesses, the probabilities of the case, and the marshaling of the evidentiary facts in their true relations, all leading up to a conclusion as to the ultimate facts upon which the judgment of the court is to be based. The amount of proof is sufficient ; it is the quality of the proof which enters into the question of its weight. If the amount of proof is sufficient, a nonsuit cannot be granted but a decision upon the merits should be made. If the evidence does not preponderate, but stands equally balanced, the allegations of the party who has tendered the issue must be deemed to have been fully met by his opponent, and the facts should be determined against him. (Franch v. Francle, 11 Misc. 569.) EVIDENCE. 253 § 8. Matters judicially known without proof. There ai'e many things so much a matter of common knowledge that the courts will take judicial notice of them, without proof. (See Chamber- layne's Modern Law of Evidence, §§ 570 e^ seq.) The courts will take judicial notice of the fact that persons engaged in business, who cannot read or write,' have the faculty of memoi'y more acutely educated from being obliged to depend upon it, and consider the fact when such persons are called as witnesses. (Matter of Cross, 85 Hiui, 343.) The courts take judicial notice of certain facts, without any evidence given by the party alleging the existence of such facts. Such as general statutes, legal holidays, etc. Courts may take judicial notice of facts which are a part of the general knowledge of the country, and which are generally known and have been duly authenticated in repositories of facts open to all and especially so of facts of official, scientific or historical character. Thus it has been held that courts will take judicial notice of matters of public history, such as the existence of the late Civil War and the particular acts which led to it ; and that on April 6, 1917, by proclama- tion of the President, a state of war was formally declared to exist between the United States and the Imperial German Government (Schultz v. Raines & Co., 99 Misc. 626 ; Siemund v. Schmidt, 168 N. Y. Supp. 935) ; of the general course of business in a community (Branson v. -Wiman, 10 Barb. 406, 8 N. Y. 182) including the universal practice of the banks; the condition of the financial market (Powell v. Hill, 170 N. Y. Supp. 915); (Agawam Bank v. Strever, 18 N. Y. 502; Hutchinson v. Man- hattan Co., 150 N. Y. 250, 256) ; of the expectation of human life (John- son v. Hudson River B. B. Co., 6 Duer, 634; Davis v. Standish, 26 Hun, 608) ; of the course of seasons and husbandry, and the general course of agriculture, and that a crop at a certain date would not have matured (Hunter r. N. Y., 0. & W. B. B. Co., 116 N'. Y. 615, 622) ; of the rising and setting of the sun and the moon (Case v. Perew, 46 Hun, 57) ; that a specified day of the month fell on Sunday (Byer v. Prudential Ins. Co., 85 App. Div, 7, 82 IST. Y. Supp. 971) ; of the seasons of the year; and, generally, of those things which happen according to the ordinary course of nature ; the course of time and the movements of the heavenly bodies, the coincidence of the days of the week with the days of the month ; ordinary public fasts and festivals; and legal weights and measures. And to ascertain such well-known facts recourse is had to such documents and references as are worthy of confidence. Within this rule the court may take judicial notice of the size and height of the human frame. Courts are not bound to take judicial notice of matters of fact. Whether 254 CIVIL LAW AND PEACTICE. liey will do so or not depends on the nature of the subject, the issue involved and the apparent justice of the case. (Hunter v. N. Y., 0. £ W. B. R. Co., 116 N. Y. 615.) All courts and judges are bound to know the public statutes of this- State, but they are not required to know private statutes. (Lavelle v. Corrignio, 86 Hun, 135.) Nor will the courts of this State take judicial notice of the laws of another State or country (Fish v. Delaware, etc., B. Co.. 158 App. Div. 92, 143 K Y. Supp. 365) ; or of local municipal ordinances. (People v. Bell, 148 N. Y. Supp. 753.) Judicial notice may be taken of Federal statutes. (Lehigh Valley B. Co. v. Weyant, 165 N. Y. Supp. 391.) The courts take judicial notice of the population of the political divi- sions within their jurisdiction. (People v. McKane, 143 N. Y. 155.) And that a town named is in a particular county. (People v. Wood, 131 N. Y. 617.) Judicial knowledge is taken of the fact that the Niagara River is a navigable stream and constitutes an international boundary between the United States and the Dominion of Canada. (Strawberry Island Co. v. Cowles, 79 Misc. 279, 140 N. Y. Supp. 333.) The courts take notice of the general characteristics of an aeroplane. (Piatt v. Erie County Agric. Soc, 164 App. Div. 99, 149 N. Y. Supp. 520.) The fact that it is the universal rule of the road in this country to drive on the right hand side of the street need not be proved. (Jacohs v. Carvel Co., 156 N. Y. Supp. 766.) That typhoid is a contagious disease and may be transmitted by one afflicted, is a matter of common knowledge, and the court will take judicial notice of the fact without proof; and it will also take notice of the fact that an examination of a drop of blood will reveal whether the person from whom it was taken has had typhoid. (People cxrel. Schulz v. Hamilton, 97 Misc. 437, 161 N. Y. Supp. 425.) But the courts will not take judicial notice of the alleged fact that union labor is more expensive than nonunion labor. (Bobinson Co. v. Security, etc., Ins. Co., 167 App. Div. 880, 154 N. Y. Supp. 3.) Or that onions are perishable property and that a delay in their shipment will spoil them. (Mankoff v. Erie B. Co., 97 Misc. 421, 161 N. Y. Supp. 345.) What the community as a whole knows regarding animals, the court knows. It will know the ordinary domestic animals, their nature and disposition, what will and what will not frighten them, and their habits of conduct under given circumstances. In like manner, the physical endurance and other common characteristics of domestic animals are generally judicially noticed. The general facts of natural history, and common diseases of animals may be regarded as known, but minor details, EVIDENCE. 255 especially when uncertain, cannot be taken as settled. A justice will know without proof that certain animals are found within the State. (Chamberlayne's Modern Law of Evidence, § 767.) § 9. Presumptions. There is a well defined distinction between a presumption of law and a presumption of fact. A presumption of law is a rule which requires that a particular inference must be drawn from an ascertained state of facts. (^Platt V. Mias, 186 IS". Y. 374.) Presumptions of law are, in reality, rules of law, and a part of the law itself; and the court may draw the inference whenever the requisite facts are developed, whether in pleading or otherwise, while all other presumptions, however obvious, being only inferences of fact cannot be made without the intervention of a jury or when the court exercises the functions of a jury. The presumption of innocence, of sanity, that all men are free, etc., are examples of presump- tions of law. {Justice v. Lang, 52 'E. T. 323.) Legitimacy is always presumed. {Matter of Kennedy, 82 Misc. 214, 143 IST. Y. Supp. 404.) Upon the discharge of one from an asylum, the presumption is in favor of a resumption of sanity. {Matter of Batch, 93 Misc. 419, 156 N. Y. Supp. 1006.) [N'o presumption of a mental deterioration arises from a physical disability. {Curran v. liosey, 153 App. Div. 557, 138 N". Y. Supp. 910.) Where parties have en tired into a written lease which appears upon its face to be complete in every respect and to cover the entire subject-matter, the legal presumption arises that the lease contains the whole agreement between the parties, and this presumption cannot be overcome by parol evidence. {Daly v. Piza, 105 App. Div. 496, 94 N. Y. Supp. 154.) Unlike a presumption of law, a presumption of fact leaves the trial court at liberty to infer certain conclusions from a certain set of circum- stances, but does not compel it to do so. {Piatt v. Elias, 186 N. Y. 374.) The possession, by the grantee, of a deed of lands, and its production by him in court, raises a presumption of fact that it was delivered as of its date. {Eanken v. Donovan, 115 App. Div. 651.) A deed dated in January, acknowledged in July, and recorded in August, is presumed to have been delivered at the time of its date. {Ewers v. Smith, 98 App. Div. 289.) Where a non-negotiable instrument is once shown to have been legally owned by a person, there is a legal presumption of a continuance of such ownership until some evidence is given of its transfer to some other person. {Cuyler v. Wallace, 183 N. Y. 291.) The possession of personal property is prima facie evidence of its ownership by its possessor. (Halsey v. Hart, 85 Hun, 46, 32 IST. Y. Supp. 665.) A presumption of 256 CIVIL LAW Ai^D PKACTICE. payment may arise from the lapse of time, wholly independent of the Statute of Limitations. This presumption is not one of law that will bar an action on the claim, hut is one of fact, to be considered by a court or jury in support of the defense of payment. {Macavley v. Palmer^ 125 N. Y. 742.) The presumption is that a letter duly mailed has been received by the person to whom it is addressed, and, in the absence of proof to the contrary, the presumption is sufficient evidence of the fact. (McArdle v. Thames Iron Worhs, 96 App. Div. 139, 89 'E. Y. Supp. 485.) Where a debtor gives to his creditor the note of a third person for an antecedent debt, there is a presumption that the note was not received in satisfaction of the debt, and the burden is on the debtor to prove the contrary ; but if such note be so given simultaneously with the contracting of the debt, the presumption is that it was received in satisfaction of the debt, and the burden is on the creditor to prove the contrary. ( Vacheron V. Uildebrant, 39 Misc. 61, 78 N. Y. Supp. 771. As to presumptions, see Chamberlayne's Modern Law of Evidence, §§ 1026-1231.) A presumption of a fact arising in favor of a party, conclusively over- come by uncontradicted proof introduced by the opposing party, ceases to have any probative force. {Gause v. Commonwealth Trust Co., 55 Misc. 110, 106 ISr. Y. Supp. 288.) It is provided by statute that a seal upon an executory instrument, hereafter executed, is only presumptive evidence of a sufficient considera- tion, -which may be rebutted, as if the instrument was not sealed. (Civ. Prac. Act, § 342.) § 10. Burden of proof. When all the evidence in an action is before a court or jury, and each of the parties has presented his side of the case and rested, the question then to be determined is which of the parties, on all the evidence, is entitled, under the law applicable to the case, to a verdict or decision in his favor. In determining this question it is necessary first to consider which party has the burden of proof, and whether that party has fully met and overcome the burden by a preponderance of evidence. If he has not he has failed to mate out his case. In civil cases the party upon whom the burden of proof rests performs his obligation by presenting a pre- ponderance of the evidence. (Gibhs v. Camahan, 4 Misc. 564.) When a party alleges the existence of a fact as the basis of a cause of action or defense the burden is always upon the party who alleges the fact to establish it by proof. The onus prohandi as it is called, or burden of proof, is upon him throughout the trial. (Ray v. Metropolitan Street EVIDENCE. 257 Ry. Co., 163 N. Y. 447. See Chaniberlayne's Modern Law of Evidence, §§ 930-1025.) Generally the plaintiff in the action has the burden of proof, that is, he must satisfy the court and jury that his claim upon which he founds his cause of action is established by a preponderance of evidence. That does not mean that he must have a greater number of witnesses because the testimony of one witness may outweigh that of twenty witnesses, but from all the facts and circumstances in the case it must preponderate in favor of the plaintiff, and unless it does so as a general rule he is not entitled to recover in an action. But where the cause of action of the plaintiff is admitted by the defendant and the defense is a counterclaim, or payment, then the burden of proof is with the defendant to show by a preponderance of proof the existence of his counterclaim or the fact of such payment and unless there is a fair preponderance of evidence in his favor he will fail in his counter- claim as well as in his attempt to prove payment. The application of the rule stated may be well illustrated by applying it to an action brought by the plaintiff to recover damages for injuries alleged to have been sustained through the negligence of the defendant, where the circumstances surrounding the accident are such as to raise a presumption of negligence on the part of the defendant. The plaintiff in such action has to meet the burden of proof upon the issue of negligence at every stage of the case. The plaintiff may make out his cause of action prima facie by the aid of the legal presumption, but when the proof is all in the burden of proof, never shifting, is still upon him. If the defendant's proof operated to rebut the • presumption upon which the plaintiff relied, or if it left the essential fact of negligence in doubt or uncertainty, the party who made the allegation must suffer, and not his adversary. The jury are bound to put the facts and circumstances proved by the defendant into the scale against the presumption upon which the plaintiff relied, and in determining the weight to be given to the former as against the latter, they are bound to apply the rule that the burden of proof is upon the plaintiff. If, on the whole, the scale did not preponderate in favor of the presumption and against the defendant's proof, the plaintiff has not made out his case, since he has failed to m-eet and overcome the burden of proof. (Kay v. Metropolitan Street By. Co., 163 1^. Y. 447; Cunningham v. Dady, 191 IST. Y. 152.) The burden of proof is upon a plaintiff to establish his cause of action when it is in proper form denied by the defendant. In actions upon a promissory note this burden is in the first instance discharged by giving evidence tending to show that the note was signed by the defendant. 17 258 CIVIL LAW AND PEACTICE. Proof of signing also identifies and proves the seal when the action is upon a sealed instrument. This prima facie establishes the cause of action. But the defendant is not concluded. He may give evidence, under a general denial, to show that the signature is a forgery, or that without his consent the note has been materially altered by the defendant, or many other things which might be mentioned, showing that the plaintiff never had a cause of action. It is very common to say in such cases that the burden is upon the defendant to establish the fact relied upon. All this can properly mean is that when the plaintiff has established a prima facie case, the defendant is bound to controvert it by evidence, otherwise he will be east in judgment. When such evidence is given, and the case upon the whole evidence, that for and that against the fact asserted by the plaintiff, is submitted to court' or jury, then the burden of proof as to any fact, in its proper sense, arises, and rests upon the party upon whom it was at the outset, and is not shifted by the course of the trial, and all material issues tendered by the' plaintiff must be established by him by a preponderance of evidence. {■Farmers' Loan & Trust Co. v. Sieflee, 144 IT. Y. 354:; Murray v. Narmod, 192 N. Y. 172.) The burden of proof never shifts. {Goldstein v. Goldman, 74 App. Div. 356.) In an action upon contract for the sale of goods, brought by the vendor to recover the purchase price, the burden is upon the defendant alleging payment to prove his defense. {Tenchfahriken v. Meyers, 31 App. Div. 52, 52 N. Y. Supp. 955.) In an action against an administrator to recover for services rendered for the deceased in his lifetime, the plaintiff is not required tO' prove nonpayment, as payment is an affirmative defense, and the burden of establishing it- rests upon the defendant. {LercTie v. Brasher, 104 N. Y. 157.) But in an action to enforce a legacy as a lien' upon real property, the action not being based upon an instrument for the payment of money, it was held that the burden of proving nonpajTuent rested upon the plaintiff; {Oonhling v. Weatherwax, 181 N. Y. 258.) And it has been held that whenever a written promise to pay a specific sum of money is made, and the time appointed for payment has gone by, the production of the document by the promisee prima facie establishes the breach, whether the instrument be negotiable or not, and that after it is in evidence it becomes incumbent upon the obligor to exonerate himself by his plea and proof of performance or excuse for nonperformance. { Hides- Alixanian v. Walton, li App. Div. 199; Collender v. Smith, 20 Misc. 612.) In an action of a judgment, the burdens rests on the defendant to show payment, not on the plaintiff to show nonpayment. {Bowling v. Eastings, 211 IST. Y. 199.) Where there has been an apparent alteration of a promissory note, EVIDENCE. 259 beneficial to the holder, the presumption is against the party producing the paper, and the burden of explaining the apparent alteration rests upon him. (Tillou v. Clinton & Essex Mut. Ins. Co., 7 Barb. 564; Oowdey v. Bobbins, 3 App. Div. 353, 38 IST. Y. Supp. 280.) The burden of proof upon the issue of a material alteration of a "written instrument, sued upon in its existing condition, is governed by the general rule that the party alleging that the instrument sued upon is the act and deed of the defendant must establish it by proof. (Farmers' Loan & Trust Co. v. Sieflce, 144 IST. Y. 354; Schiuarz v. Oppold, T4 IST. Y. 307.) And in an action brought upon a promissory note, whether it purports to have been given for value received or otherwise, the burden of proving a want of consideration for the note is on the defendant alleging it. (CarnwrigJtt V. Gray, 127 IST. Y. 92; Spragiie v. Sprague, 80 Hun, 285, 30 N. Y. Supp. 162.) But where the defense of the Statute of Limitations is pleaded in an action against several makers of a promissory note which appears upon its face to be barred by the statute, the burden rests upon the plaintiff to show payments made, or directed to be made, by each defendant, in order to support a judgment against him, and proof of pay- ments by one defendant, sufficient to keep the note in life as to him, will not revive it as to the others. (Bender v. Blessing, 82 Hun, 320.) In an action for causing death by negligence it is an essential part of the plaintiff's case to show that the accident alleged to be due to the defendant's negligence was the proximate, cause of the death. (Moscarello V. Haines, 130 App. Div. 135, 114 IST. Y. Supp. 519.) But, under sec- tion 265 of the Civil Practice Act, the burden of proof as to the contribu' tory negligence of the deceased is upon the defendant. § 11. Best and secondary evidence. One of the general rules of evidence and of universal application is that the best evidence of disputed facts must be produced of which the nature of the case will admit. (See Chamberlayne's Modern Law of Evidence, § 12.) This rule, speaking technically, applies only to the distinction between primary and secondary evidence; but the reason assigned for the application of the rule in a technical sense is equally applicable, and is frequently applied, to the distinction between thij higher and. inferior degree of proof, speaking in a more general and enlarged sense of the term, when tendered as evidence of a fact. The meaning of the rule is, not that courts require the strongest possible assurance of the matter in question ; but that no evidence shall be admitted, which, from the nature of the case, supposes still greater evidence in the party's possession, or power ; because the absence of the primary evidence 260 CIVIL LAW AND PKACTICE. raises a presumption, that if produced it would give a complexioii to the case unfavorable to the interest of the party. In requiring the production of the best evidence applicable to each particular fact, it is meant that no evidence shall be received which is merely subslilutlonary in its nature, so long as the original evidence can be had. The rule excludes only that evidence which itself indicates the existence of more original sources of information. And where there is no substitution of evidence, but only a selection of weaker instead of stronger proofs, or an omission to supply all the proofs capable of being produced, the rule is not infringed. (1 Greenl. Ev., § 82.) Each party is at liberty to offer such proof as he can, and if it be admissible in its nature and relevant to the issue, it cannot be rejected on the ground, that by greater diligence it could have been made more satisfactory and con- clusive. {People V. Gonzalez, 35 N. Y. 40, 61; Seidenspinner v. Metropolitan Life Ins. Co., 175 K. Y. 95.) To render competent secondary evidence of the contents of a letter or other writing, not in the hands of the adverse party, but presumably in the possession of a third party, it is incumbent upon the party desiring to introdnce such evidence to show that the production of the paper itself colild not be compelled by resort to a subpoena duces tecum,. (Berg v. Carroll, 40 N". Y. St. Kep. 511; Auten v. Jacobus, 21 Misc. 632.) Secondary evi- dence of a material paper is not generally admissible without explanation for its nonproduction. (Cole v. Canno, 168 App.-Div. 178, 153 N. Y. Supp. 957.) But where the best or primary evidence has been lost or destroyed much latitude is allowed in the admission of parol evidence to supply the loss; and where the fact of loss is first established by competent evidence, it is then competent to introduce secondary evidence in place of the primary evidence lost or destroyed. (Lallman v. Ilovey, 92 Ilun, 419 ; Stanfield V. Kniclcerbocher Trust Co., 1 App. Div. .592, 37 K Y. Supp. 600.) The question of the sufficiency of proof of loss and of unavailing search to authorize the admission of parol evidence of the contents of a written instrument is very much in the discretion of the trial court. (McCulloch V. Hoffman, 73 IST. Y. 615; Isaacs v. Cohen, 10 App. Div. 210.) It is for the court to determine in the first instance "whether the evidence establishes the destruction of the instrument where evidence of its destruc- tion is given, and also that its destruction was not to produce a wrong or injury to the opposite party or to create an excuse for its nonproduction; and this is so whether the paper was destroyed by a party or a witness. (Mason v. Lihhey, 90 IST. Y, 683.) But it is error to admit secondary evidence of the contents of a written instrument without any proper EVIDENCE. 261 attempt to procure the instrument on the trial and without any sufficient evidence of its loss or destruction. (Tromhley v. Seligman, 191 N. Y. 400 ; Butler v. Mail & Express Pub. Co., 171 IST. Y. 208 ; Brigger v. Mut. Reserve Fund Life Asso., 75 App. Div. 149, 77 IST. Y. Supp. 362.) In respect to telegrams alleged to have passed between the parties, the transcript delivered to the person addressed is for some purposes, as between him and the sender, deemed the original, but it never can be so without competent proof that the alleged sender did actually send, or authorize to be sent, the despatches in question. The primary and original evidence of that fact would be the telegram itself in the hand- writing of the sender, or of an agent shown to have been duly authorized. But when it appears that the telegram has been destroyed by the company, secondary evidence of the essential fact may be given. {Oregon Steam- ship Co. V. Otis, 100 ]Sr. Y. 446.) When it is desirable to prove the contents of a written instrument the paper itself furnishes the best evidence. If it is in the possession or under the control of the adverse party a notice to the party to produce it at the trial will result either in permitting the best evidence of its contents to be given by the putting of the paper itself 'in evidence, or in laying the foundation for secondary evidence of its contents by parol testimony. If the party upon whom the notice is served fails or refuses to produce the paper parol evidence of its contents is competent (Greenspan v. American Star Order, 1 Misc. 406, 20 N. Y. Supp. 945) ; and the party refusing will not be permitted to introduce the paper in evidence in his own behalf to meet the secondary evidence of its contents, or to give oral evidence to that effect for such purpose. ( Tyng v. U. 8. Submarine S Torpedo Boat Co., 1 Hun, 161, 60 K Y. 6U; Mather v. E. M. Co., 118 K Y. 629.) A party desiring his adversary to produce a book of account upon a trial may require such production by the service of a subpoena duces tecum upon the adverse party five days before the day when he is required to attend, or by serving upon such party an order requiring him to pro- duce it, which order may be made by the justice at any time after the commencement of the action. (Civil Prac. Act, § 411.) § 12. Parol evidence to vary writing. When a contract is consummated by writing, the presumption of law is that the written instrument contains the whole of it; and a party to it will not be allowed to show oral representations or stipulations, preceding or accompanying the execution of the instrument, differing from it or not inserted in it. The agreement to which the contractors bound themselves is to be ascertained exclusively by the writing. (Filhins v. Whyland, 24 262 CIVIL LAW AND PEACTICE. ]Sr. Y. 338.) If upon inspection and study of the writing, read, it nia_y be in the light of surrounding circumstances for the purpose of its proper understanding and interpretation, it appears to contain the engagement of the parties, and to .define the object and measure the extent of such engagement, it constitutes the contract between them, and is presumed to contain the whole of that contract. (Eighmie v. Taylor, 98 IST. Y. 288.) But the rule above stated prohibiting oral evidence varying the terms ef a written contract does not apply to separate independent collateral undertakings, or where the original contract was verbal and a part only reduced to writing. {Chapin v. Dohson, 78 IST. Y. 74.) To bring a case within the rule admitting parol evidence to complete an entire agreement of which a writing is only a part, two things are essential : First : The writing must appear on inspection to be an incom- plete contract; and Second: The parol evidence must be consistent with and not contradictory to the written instrument. {Case v. Phcenix Bridge Co., 134 IST. Y. 78 ; House v. Walch, 144 K". Y. 418.) In an action on a contract partly in writing, testimony as to the oral part is not objectionable as tending to vary a written instrument. (Cohen v. Levy, 77 Misc. 98, 136 IST. Y. Supp. 56; Lovell v. Alton, 82 Misc. 431, 143 N. Y. Supp. 995.) A contract for the sale of goods, if complete, does not permit oral evidence as to a warranty of the quality of the goods. (Colt V. Demaresi & Co., 159 App. Div. 394, 144 N. Y. Supp. 557.) But if the contract is incomplete, the parol evidence may -be received. (Lovell V. Alton, 82 Misc. 431, 143 IST. Y. Supp. 995.) Bills, receipts, and other instruments of like character are always open to explanation and are not conclusive upon any of the parties. (Frazer & Eaughton, v. Mott, 118 App. Div. 791, 103 X. Y. Supp. 851; Campbell v. Monks Co., 144 IST. Y. Supp. 454.) But the rule permitting a receipt to be explained by parol has no application where the receipt is a contract between tfie parties. (Coon v. Knap, 8 !N". Y. 402.) The consideration clause in a deed is ordinarily a receipt, or the evidence of a fact, and can be contradicted. (M'Crea v. Purmort, 16 Wend. 460.) And whenever the recital of consideration in an instrument is merely evidence of a fact it is subject to explanation, but when it is a substantive part of the contract, embraced within the covenant of one of the parties, it caunot be thus contradicted. (Sturmdorf v. Saunders, 117 App. Div. 762.) Evidence which goes to the intention of the parties to make any con- tract at all, when executing a writing purporting to be a contract, does not violate the rule excluding parol proof to vary the terms of an actual contract. (Koehler £ Co. v. Duggan, 49 Misc. 100.) EVIDENCE. 263 The rule that parol testimony may not be given to contradict a written contract, is applied only in suits between the parties to the instrument or their privies. It does not apply to third persons, and they are at liberty to prove the truth, however contradictory to the written statement of others. {McMaster v. Pres., etc., Ins. Co. of North America, 55 IST. Y. 222; Dumois v. Mayor, 37 Misc. 614; Polinsbee v. Sawyer, 157 ISJ". Y. 196.) In an action on a written unsealed contract extrinsic evidence may be given that the contract was made on behalf of parties other than those whose names appear in or are signed to the instrument and to charge such other parties. (Ropes v. Arnold, 81 Hun, 476.) Parol evidence is competent to show that a written contract, not under seal, apparently made between the parties named in it, was in fact made between one of them and a person not named.) MacDonald v. Crissey, 215 N. Y. 609.) The delivery of an instrument in writing does not bar parol evidence that it was not to become binding until the happening of some condition resting in parol, or that the transfer was for a special purpose. (Grannis V. Stevens, 216 N. Y. 583.) If an unsealed instrument is delivered upon conditions, it is always competent to show the same, as the annexing of conditions to the delivery is not an oral contradiction of the written obligation. (Spilo v. Baumann-McWhirter Chemical Co., 157 IST. Y. Supp. 521.) While oral declarations are not admissible to vary the terms of a written agreement, evidence tending to show absence of consideration, or false representations inducing its execution, is admissible, not to vary its terms, but to show that there never was a valid agreement; and such evidence is none the less admissible because it may consist of oral declarations before or at the time of its execution, if otherwise competent. (Carroll v. Blum, 152 IST. Y. Supp. 961.) § 13. Hearsay. It is a general rule that what in the law of evidence is known as hearsay is not admissible to prove or disprove a material fact involved in the issue between the parties. (Washington v. Bank for Savings, 171 ISr. Y. 166. See Chamberlayne's Modern Law of Evidence, §§ 2574- 3149.) When a witness, in the course of stating what has come to his notice concerning a matter in dispute, states the language of others which he has heard, or produces papers which he identifies as being written by particular individuals not at all connected with the case, he offers what is called hearsay evidence. The fact that a statement has been made by a person not called as a witness, or is contained in any book, document or record whatever, proof of which is not admissible on other grounds, is not 264 CIVIL LAW AND PRACTICE. relevant as a fact from which the truth of the fact stated may be inferred. This rule is not applicable to the case where statements made are received in evidence as part of the res gestae. Conversations had between the witness and another in the absence of the party come within the rule which excludes such evidence as hearsay. Testimony of a witness as to what he has been told, but of which he knows nothing personally, is mere hearsay. The mere declaration of a party, that he had heard certain statements inconsistent with the testimony of his own witness, cannot be given in evidence against him for the purpose of showing his bad faith in assort- ing the fact their testimony would establish or otherwise. The channel through which hearsay evidence comes does not change its natiira ; it con- tinues hearsay evidence, and inadmissible, though repeated by a party to the suit as mere hearsay. {Stevens v. Vroman, 10 N. Y. 381.) § 14. Pedigree declarations. The general rule excluding hearsay evidence has one important excep- tion, and that is, that hearsay evidence as to matters of pedigree is admis- sible. Pedigree is the history of family descent which is transmitted from one generation to another by both oral and written declarations, and unless proved by hearsay evidence, not competent in general issues, could not, in most instances, be proved at all. Matters of pedigree consist of descent and relationship evidenced by declarations of particular facts such as births, marriages and deaths. In such cases hearsay evidence of declarations of persons who, from their situation, were likely to know, is admissible when the person making the declarations is dead. (Matter of Kennedy, 82 Misc. 214, 143 JST. Y. Supp. 404. And see Chamber- layne's Modern Law of Evidence, §§ 2910-2981.) Declarations in regard to pedigree, although hearsay, are admitted on the principle that they are the natural effusions of persons who must know the truth and who speak on occasions when their minds stand in an even position without any temptation to exceed or fall short of the truth. The admissibility of perigree declarations is subject to three conditions: (1) The declarant must be deceased. (2) They must have been made ante litem motam, i. e., at a time when there was no motive to distort the truth. (3) The declarant must have been related either by blood or affinity to the family concerning which he speaks. The declarations themselves are inadmissible to prove the third condition, but the evidencn of the relationship of the declarant must be shown by evidence deliors the declarations. (Aaholm v. People, 211 IST. Y. 406 ; Matter of Title, Guarantee & T. Co., 172 IST. Y. Supp. 239.) Only slight proof of the EVIDENCE. 265 relationship -will be required, since the relationship of the declarant with the family might be as difficult to prove as the very fact in con- troversy. In addition to the declarations of deceased persons who were likely to know, unauthenticated facts and entries, made presumably with no motive to deceive, such as entries in a family Bible, an inscription on a tombstone, a pedigree hung up in the family mansion, and recitals in deeds, are competent upon that issue. (Jachson v. Cooley, 8 Johns. 128, 131 ; Young v. Schulenherg, 165 N. Y. S88 ; Eisenlord v. Clum, 120 N. Y. 663; Washington v. Bank for Savings, 171 IST. Y. 166, 173; Layton v. Kraft, 111 App. Div. 842.) A family tree made by a relative may be admissible on a question of pedigree. (Commonwealth Water Co. v. Brunner, 175 App. Div. 153, 101 E". Y. Supp. 794.) § 15. Admissions. In a civil action the admissions by a party of any fact material to the issue are always competent evidence against him, wherever, whenever or to whomsoever made. The theory upon which this class of evidence is held competent is that it is highly improbable that a party will admit or state anything against himself or against his own interests unless it is true. (Reed v. McCord, 160 IST. Y. 330; Cooh v. Barr, 44 IST. Y. 150 ; Whiton v. Snyder, 88 X. Y. 306; Eisenlord v. Clum, 126 IST. Y. 559; Ilutchins v. Van Vechten, 140 N. Y. 118; Owen v. Cawley, 36 N. Y. 600. See Chamberlayne's Modern Law of Evidence, §§ 1232-1708.) But an admission which on its face purports to be mere hearsay and not a matter' of personal knowledge is inadmissible as a declaration against interest ; as, for example, if a party merely admits that he heard the accident which gave rise to the suit occurred in the manner stated, it would be inadmis- sible, as it then would only amount to an admission that he had heard the statement which he repeated, and not to an admission of the facts included in it. (Mailer v. Empire Life Ins. Co., 110 App. Div. 723; Reed v. McCord, 160 K Y. 330.) Offers made by way of compromise of a disputed claim in an ineffectual attempt at settlement, are incompetent evidence against the party making them. (Tennant v. Dudley, 144 N. Y. 504.) But the admission of a distinct fact which in itself tends to establish a cause of action or defense is not rendered inadmissible from the circumstances that it was made during discussion relating to a compromise unless it is expressly stated to be made without prejudice; but if the admission is of such a nature that the court can see that it would not have been made except for the purpose of producing the objects of the negotiation, and under an agreement that could fairly be implied from the circumstances that it Avas not to be used 266 CIVIL LAW AND PEACTlCE. afterwards to the prejudice of the party, it may properly he excluded. (White V. Old Dominion S. S. Co., 102 K Y. 660.) The only kind of admission made during an attempt at compromise which can he received in evidence is a distinct, unqualified admission of an independent fact made, not as a part of an attempted adjustment but hecause it was a fact. (Roome v. BoUnson, 99 App. Div. 143 ; Franklin v. Hoadley, 115 App. Div. 538.) The declaration of an agent or that of an officer of a corporation is not evidence against his principal, except when made in the course of his agency, or in the discharge of his official duties. (Cohh v. United Engi- neering, etc., Co., 191 ]Sr. Y. 475.) The Code provides that the admis- sion of a member of an aggregate corporation, who is not a party, shall not be received as evidence against the corporation, unless it was made con- cerning and while engaged in a transaction in which he was the authorized agent of the corporation; or unless it was made while a member of such corporation and testifying as a witness concerning a transaction of the corporation, when the ofiicial record of such testimony shall be received. (Code Civil Pro., § 839.) Declarations of one defendant do not bind other defendants in the absence of proof of assent, or proof that all were engaged in a joint enterprise. {Whaples v. Fahys, 109 App. Div. 594.) The rule which makes it incumbent on cross-examination to direct the witness's attention to and interrogate him concerning an alleged con- tradictory statement before the latter may be given in evidence, does not apply where the witness is a party to the action. (Engel v. Dieter, 31 Misc. 793 ; Kennedy v. Wood, 52 Hun, 46.) § 16. Admissions over telephone. An admission made in a conversation over the telephone may be received, if otherwise competent, but there must he satisfactory evidence of the identity of the person making the admission. (Manhes v. Fishman, 163 App. Div. 789, 149 IST. Y. Supp. 228; HancocJc v. Hartford F. Ins. Co., 81 Misc. 159, 142 N. Y. Supp. 352; Harris v. Raskin, 142 N. Y. Supp. 342; Bonner Mfg. Co. v. Tannenbaum, 169 jST. Y. Supp. 43.). The fact that one talking over the telephone represents himself to be a certain person does not necessarily establish the fact. {Funk & W. Co. v. BruSnn, 142 IST. Y. Supp. 291; Harris v. Raskin, 142 IST. Y. Supp. 342.) The witness must testify that he recognized the voice of the person at the other end of the telephone, or his identity must be established by other evidence. {Mankes v. Fishman, 163 App. Div. 789, 149 N. Y. Supp. 228.) EVIDENCE. 267 § 17. Opinions. As a rule, witnesses must state facts, and not draw conclusions, or give opinions. It is the duty of the jury, or court, to draw conclusions from the evidence, and form opinions upon the facts proved. (See Chamberlayne's Modern Law of Evidence, §§ 1791-2573.) The cases in which opinions of witnesses are allowable, constitute exceptions to the general rule, and the exceptions are not to be extended or enlarged, so as to include new cases, except as a necessity to prevent a failure of justice, and when better evidence cannot be had. On questions of science or trade, and the like, persons of skill and science, experts in the particular science or trade, may give opinions. On questions of value, a witness must often be per- mitted to testify to an opinion as to value, but the witness must be shown competent to speak upon the subject. He must have dealt in, or have some knowledge of the article of which he speaks. Persons should be conversant with the particular article, and of its value in the market, as a farmer or dealer, or a person conversant with the article, as to the value of lands, cattle, produce, etc. These stand upon the general ground of peculiar skill and judgment in the matters about which opinions are sought. (Teerpenning v. Com Exchange Ins. Co., 43 jST. Y. 279.) A witness having knowledge of the subject matter will not be permitted to give in evidence his opinion as to the damages resulting from a par- ticular transaction. (Morehouse v. Mathews, 2 N. Y. 514.) It is competent for a witness to testify whether another person was intoxicated if the witness saw and observed that person's appearance and conduct. (People v.. Eastwood, 14 IST. Y.5Q2; McCarthy v. Wells, 51 Hun, 171.) In an action for work and labor, where the value of the service is in question, a witness who has heard the testimony of another witness as to the nature and extent of the services rendered may give an opinion of the value of the services so testified to. (Seymour v. Fellows, 77 JST. Y. 178.) It has been held that the question, " What was the value of the trees ? " which the witness had described as broken down by trespassing cattle, called for a fact and not an opinion. (Rogers v. Anson, 42 Hun, 436.) A witness shown to be competent may testify that a tree of a certain diameter could be a certain number of years old. (llamapo Mfg. Co. v. Mapes, 216 N. Y. 362.) Where an expert is called as a witness to give his opinion upon a subject calling for expert testimony, he should be shown qualified to speak upon the subject before giving his. opinion. The justice must decide as to whether the witness is qualified to testify as an expert in the particular fact at issue, and if the witness is shown qualified the justice should receive.. 268 CIVIL LAW AND PKACTICE. bis opinion, but if no qualification is sbown tbe opinion of tbe -vdtness sbould not be received. § 18. Impeachment of witness. A witness may be impeached by calling reputable witnesses and sbow- ing by them that they are acquainted with the general reputation among his neighbors of the witness sought to be discredited, and that it is bad, leaving the jury to draw the inference whether the witness is worthy of belief, or the direct question may be put to the impeaching witnesses whether from their knowledge of the general character of the witness they would believe him under oath. Another mode is to show by the impeach- ing witness that they are acquainted with the general character of the witness for truth, that it is bad, and from that character they do not deem him worthy of belief under oath. In either case it is usual, although not absolutely necessary, to ask the impeaching witnesses whether they would believe the witness under oath. (See Baylies' Trial Practice, 280.) A party may not impeach, either by general evidence or by proof of contradictory statements out of court, a witness whom he has presented to the court as worthy of credit. He may contradict him as to a fact material in the cause although the effect of that proof may be to discredit him, but he cannot adduce such a contradiction when it is only material as it bears upon his credibility. {Coulter v. Amencan Merchants' Union Express Co., 5G N. Y. 585 ; Becher v. Koch, 104 N. Y. 394 ; BerkowsU v. New York City By. Co., 127 App. Div. 544.) The rule that one cannot impeach his own witness by contradictory statements made out of court is limited to the case of a witness who is not the adverse party. {Koester V. Rochester Candy ^Vor^cs, 194 N. Y. 92.) § 19. Books of account. Where there are regular dealings between the plaintiff and defendant, and it is proved that the plaintiff keeps honest and fair books of account, that some of the articles charged to the defendant have been delivered to him; and that the plaintiff keeps no clerk, his books of account are, under the circumstances admissible in evidence. (Vosiurgh v. Thayer, 12 Johns. 462.) This is the leading case on this subject. As to the admissibility of books of account, see Chamberlayne's Modem Law of Evidence, §§ 3051-3149.) The rule excluding books of account kept by a party who keeps a clerk, applies only where there is an employee who has something to do with, and lias knowledge generally of the business of his employer as to goods EVIDENCE. 269 sold or work done, so that he can testify on -the subject; one whose business is simply to keep the books is not a clerk within its meaning. Q'hat rule evidently means an employee whose duty it is to attend to the details of business and thus is able to prove an account, and not one who from his isolated position as a bookkeeper, can have but little means of knowledge personally as to the transactions done, or information relating thereto, except what is mainly derived from others. The authorities are numerous which hold that books containing entries made by those whose duty it was to make them in the usual course of business, are competent evidence when other re(T[uisites are sufficiently established. {McOoldrich v. Trapphar/an, 88 ISr. Y. 334.) Ordinarily books of account are introduced in evidence by the party by whom or for whom they have been kept. Subject to the restrictions above staled these books become evidence for the consideration of the court or jury by whom the issues are to be determined. As evidence, which is manufactured Ijy the party, they should be received with caution ; but that is an objection which goes to the weight of the evidence and not to its admissibility, which is to be determined solely with reference to the foundation which has been laid for it. Their admission is not authoi'ita- tive as to their contents ; for the conclusion as to their credit will depend upon their appearance, the manner of their keeping and the character of him who offers them. (Smith v. Smith, 163 N. Y. 168.) Should it be desirable for any reason to introduce in evidence the books of an adverse party, their production should be compelled by a subpccna duces tecum or an order as provided in section 411 of tha Civil Praciiee Act. For the form of subpoena see Eorm No. 40. For a more full dis- cussion of books of account as evidence see 2 Wait's Law & Pr. 751-771. § 20. Statutory provisions as to evidence. The Civil Practice Act contains important provisions relating to wit- nesses and the admission of evidence which are concisely stated and best presented in the language of the statute itself. These provisions are as follows : § 329. Form of certificate. Where a, transcript, exemplification or certified copy of a record or otlier paper, is declared by law to be evidence, and special provision is not made for Ihs form of the certificate, in the particular case, the person authorized to certify, must state iu Ms certificate that it has been compared by him with the original and that it is a correct transcript therefrom and of the whole of the original. 270 CIVIL LAW AND PRACTICE. § 330. Certificate attested by seal , If the officer, or the court, body or board, in whose custody an original paper speci- fied in the last section is required to be, by the laws of the state or of another state or of the United States or of a territory thereof, or of a foreign country, has, pur- suant to those laws, an official seal, the certificate must be attested by that seal. If the certificate is made by the clerk of a county within the state, it must be attested by the seal of the county. This section does not require the seal of a court to be afiixed to a certified copy of an order or of a paper filed therein or entry made, where the copy is used in the same court or before an oElcer thereof. § 331. Proof of written instruments where subscribing witnesses. Except in the case of written iiistruments to the validity of which a subscribing witness or subscribing witnesses is or are necessary, whenever, upon the trial of any action or upon the hearing of any judicial proceeding, a written instrument is offered in evidence, to which there is a subscribing witness, it shall not be necessary to call such subscribing witness, but such instrument may be proved in the same manner as it might be proved if there were no subscribing witness thereto. § 332. Proof of instrument by CMcpaiisons of handwriting. Comparison, of a disputed writing with any writing proved to the satisfaction of the court to be the genuine handwriting of any person claimed on the trial to have made or executed the disputed instrument or writing shall be permitted and sub- mitted to the court and jury in like manner. § 333. Proof of lest nesotiable paper. 1. Where, upon the trial of an action, it appears that a negotiable promissory note or bill of exchange, upon which the action or a counterclaim interposed in the action is founded, was lost while it belonged to the party claiming the amount due there- upon, he may prove the contents thereof by parol or other secondary evidence and may recover or set off the amount due thereupon as if it was produced. 2. For that purpose, he must give to the" adverse party a written undertaking, in a sum fixed by the judge or the referee, not less than twice the amount of the note or bill, with at least two sureties, approved by the judge or the referee, to the eiTect that he will indemnify the adverse party, his heirs and personal representatives, against any claim by any other person, on account of the note or bill, and against all costs and expenses, by reason of such a claim. 3. But where an action is prosecuted or defended by the people of the state, or by a public officer in their behalf, the people or the public officer may prove the con- tents of a lost note or bill of exchange, by parol or other secondary evidence, and may recover or set o3 the amount due thereupon, without giving any security to the adverse party. § 334. Proof of age of child. Whenever in any proceeding or trial it becomes necessary to determine the age of a child, such child may be produced and exhibited to enable the court or jury to determine its age by a personal inspection; and such court may direct an examina- tion by one or more physicians, whose opinion shall .also be competent evidence upon the question of such age. § 335. Proof of ownership of unoccupied lands and timber thereon. In all actions to recover the possession of, or otherwise to -determine the title to, or, for trespass upon or injury to unoccupied lands, timber, trees or underwood thereon, EVIDEiq^CE. 271 except an action in which any county or any state or county officer, board or com- mission is a party defendant, the plaintiff may show an unbroken chain of title or conveyance of the land to himself for thirty years next preceding the commencement of the action, or if an action for trespass, next preceding the commission of the tres- pass or injury, and such proof shall be presumptive evidence of ownership as the times respectively, of the commencement of such action or commission of such trespass or injury, but such presumption may be rebutted by the defendant by showing owner- ship of said lands at the times respectively, of the commencement of said action or the commission of said trespass or injury, in some person other than the plaintiff. § 336. Proof of payments by municipal corporation or officer thereof. 1. In any action or proceeding now pending or hereafter to be brought in any of the courts of this state, the payment of any sum of money by a municipal corporation or an officer thereof may be proved by a receipt purporting upon its face to be given therefor, and to entitle such receipt to be read in evidence no further or other proof shall be necessary than that it is produced from the flies of the office of the chief financial officer of such municipal corporation or from the files of the office of the person or department charged with the duty of making the payment. , 2. Every such receipt so read in evidence shall be presumptive proof of the fact of the payment to the person by or in whose behalf it purports to be signed of the sum of money and for the purpose therein expressed. 3. No such receipt shall be entitled to be read in evidence by virtue of the provisions of this section, unless it was given at least six years before the commencement of the action or proceeding in which it shall be offered as evidence. And the date or time appearing upon its face shall be presumptive proof that it was given at such date or time. 4. Nothing in this section contained shall be held to prevent any party to such an action or proceeding from proving aff.rmatively that the payment so appearing to have been made has not in fact been made. § 339. Proving mitigating circumstances in action for wrong. In an action to recover damages for the breach of a promise to marry, or for a personal injury, or an injury to property, the defendant may prove, at the trial, facts not amounting to a total defense, tending to mitigate or otherwise reduce the plain- tiff's damages, if they are set forth in the answer, either with or without one or mere defenses to the entire cause of action. A defendant, in default for want of an answer, may prove facts of that description upon a reference or inquiry to ascertain the amount of the plaintiff's damages. § 340. Admission by member of corporation. The admission of a member of an aggregate corporation, who is not a party, shall not be received as evidence against the corporation unless it was made concerning and while engaged in a transaction in which he was the authorized agent of the corpora- tion; or unless it was made while a member of such corporation and testifying as a witness concerning a transaction of the corporation, when the official record of such testimony shall be received. § 341. Presumption of death in certain cases. A person possessed of personal property in this state or upon whose life an estate in real property depends, who remains without the United States, or absents himself in the state or elsewhere for seven years together, is presumed to be dead, in an action or special proceeding concerning such property or the administration of the estate of such person, unless it is affirmatively proved that he was alive within that time. 272 CIVIL LAW AND PKACTICE. § 342. Seal on executory instrument as evidence of consideration. A seal upon an executory instrument is only presumptive evidence of a sufflcient consideration, which may be rebutted as if the instrument was not sealed. § 343. Testimony of party may be rebutted. The testimony of a party taken at the instance of the adverse party ora'.ly or by deposition may be rebutted by other evidence. § 344. Proof by common law proof instead of documentary evidence. Nothing in this article, relating to documentary evidence, prevents the proof of a fact, act, record, proceeding, document or other paper or writing, according to the rules of the common law, or by any other conipetent proof. § 345. Ancillary action for discovery abolished. An action cannot be maintained to obtain a discovery under oath in aid of the prosecution or defense of another action. § 346. Exclusion cf witness ty reason of interest. Except as otherwise specially prescribed, a person shall not be excluded or excused from being a witness, by reason of h'.s or her interest in the event of an action or special proceeding; or because he or she is a party thereto; or the husband or wife of a party thereto, or of a person in whose behalf an action or special proceeding is brought, prosecuted, opposed or defended. § 347. Personal transaction or communication between witness and decedent or lunatic. Upon the trial of an action or the hearing upon the merits of a special proceeding, a party or a person interested in the event, or a person from, through or under whom such a party or interested person derives his interest or title by assignment or other- wise, shall not be examined as a witness in his own behalf or interest, or in behalf of the party succeeding to his title or interest against the executor, administrator or survivor of a deceased person or the committee of a lunatic, or a person deriving his ti'-Ie or ihterest from, thro'j^h or under a deceased person or lunatic, by assignment Or otherwise, concerning a personal transaction or communication between the witness and the deceased person or lunatic, except where the executor, administrator, survivor, committee or person so deriving title or interest is examined in his own behalf, or the testimony of the lunatic or deceased person is given in evidence, concerning the same transaction or communication. A person shall not be deemed interested for the pur- poses of this section by reason of being a stockholder or oSeer of any banking cor- poration which is a party to the action or proceeding, or interested in the event thereof. § 348. Deceased, insane or non-resident witness. Where a party or witness has died or become insane or, being a non-resident of this state, has departed from the state or, being a resident of the state has departed there- from by reason of military or naval service under the state or United States, since or during the trial of an action now or hereafter pending or since or during the hearing upon the merits of a special proceeding now or hereafter pending, the testimony of the decedent or insane person or of such absentee, or of any person who is rendered incompetent by the provisions of the last section, taken or read in evidence at the former trial or hearing, or at the same trial or hearing, either in court or before the same or a new referee, together with all exhibits and documents read in evidence in connection with, or as a part of the giving of such testimony, may be given or read in evidence at a new trial or hearing or at a continuation of the same trial or hearing EVIDENCE. 273 either in court or before the same or a new referee, or upon ar.y subsequent trial eison convicted of crime. A person who has been convicted of a crime is, notwithstanding, a competent witness in an action or special proceeding; but the conviction may be proved, for the purpose of affecting the weight of his testimony, either by the record, or by his cross-exami- nation, upon which he must answer any question relevant to that inquiry; and the party cross-examining him is not concluded, by his answer to such a question. § 351. Clergymen not to disclose confessions. A clergyman, or other minister of any religion, shall not be allowed to disclose a confession made to him, in his professional character, in the course of discipline, enjoined by the rules or practice of the religious body, to which he belongs. § C52. Physicians and nurses not to disclose professional isformation. A person d-ly authorized to practice physic or surgery, or a professional or regis- tered nurse, shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity; unless, where the patient is a child under the age of sixteen, the information so acquired indicates that the patient has been the victim or subject of a crime, in which case the physician or nurses may be required to testify fully in relation thereto upon any examination, trial or other proceeding in which the commis- sion of such crime is a subject of inquiry. 274 CIVIL LAW AND PEACTICE. § 353. Attorneys and their employees not to disclose communications. An attorney or counselor at law shall not be allowed to disclose a communication, made by his client to him, or his advice given thereon, in the course of his professional employment, nor shall any clerk, stenographer or other person employed by such attorney or counselor be allowed to disclose any such communication or advice given thereon. § 354. Application of sections relating to confidential communications. The last three sections apply to any examination of a person as a witness unless tlie provisions thereof are expressly waived upon the trial or examination by the person confessing, the patient or the client. But a physician or surgeon or a professional or registered nurse, upon a trial or examination, may disclose any information as to the mental or physical condition of a patient who is deceased, which he acquired in attend- ing such patient professionally, except confidential communications and such facts as would tend to disgrace the memory of the patient, when the provisions of section three hundred and fifty-two have been expressly waived on such trial or examination by the personal representatives of the deceased patient, or if the validity of the last will ^.nd testament of such deceased patient is in question, by the executor or executors named in said will, or the surviving ausband, widow or any heir-at-law or any of the next of Itiii, of such deceased, or any other party in interest. But nothing herein contained shall be construed to disqualify an attorney in the probate of a will heretofore exe- cuted or offered for probate or hereafter to be executed or offered for probate from becoming a witness, as to its preparation and execution in case such attorney is one of the subscribing witnesses thereto. In an action. for the recovery of damages for a personal injury the testimony of a physician or surgeon, or of a professional or regis- tered nurse attached to any hospital, dispensary or other charitable institution as to information which he acquired in attending a patient in a professional capacity, at such hospital, dispensary or other charitable institution, shall be taken before a referee appointed by a judge of the court in which such action is pending; provided, however, that any judge of such court at any time in his discretion, notwithstanding such deposition, may order that a subpoena issue for the attendance and examination of such physician or surgeon or professional or registered nurse, upon the trial of the action. In such case a copy of the order shall be served together with the subpoena. The provisions of this act and rules relating to depositions of witness taken and to be used within the state apply to the examination of a physician or surgeon or a pro- fessional or registered nurse, as prescribed in this section. The waivers herein pro- vided for must be made in open court, on the trial of the action or proceeding, and a paper executed by a party prior to the trial providing for such waiver shall be insuf- ficient as such a waiver. But the attorneys for the respective parties, prior to the trial, may stipulate for such waiver, and the same shall be sufficient therefor. § 355. Personal privilege cf witness. A competent witness shall not be excused from answering a relevant question, on the ground only that the answer may tend to establish the fact that he owes a debt or is otherwise subject to a civil suit. This provision does not require a witness to give an answer which will tend to accuse himself of a crime or to expose him to a penalty or forfeiture; nor does it vary any other rule respecting the examination of a witness. § 356. Testimony of surveyor and proof of standard of measurenieiit. No surveyor shall give evidence in any cause pending in any of the courts of this state, 0- before arbitrators, respecting the survey or measurement of lands which he may have made, unless, if required, either such surveyor shall make oath, or it shall EVIDENCE. 275 otherwise to be shown, that the chain or measure used by him was conformable to the standards of the state which were the standards of the state at the time such survey was made. An ofRcial certificate of any state, county, city, village or town sealer elected or appointed pursuant to the laws of this state, or the oath of such surveyor, that such chain or measure conformed to the state standard which shall have been furnished any such sealer pursuant to the provisions of the laws of this state, shall be prima facie evidence of such conformity, and an official certificate made by- any such sealer that the implement used in measuring such chain or other measure was the one provided under such laws for such purposes shall be prima facie evidence of that fact. § 357. OfScers before whom oaths and afSdavits taken. An oath or affidavit, required or authorized by law, except an oath to a juror or a witness upon a trial, an oath of office, and an oath or acknowledgment required by law to be taken before a particular officer, may be taken before a judge, clerk, deputy clerk, or special deputy clerk of a court, a notary public, mayor, justice of the peace, a city magistrate of any of the cities of this state, or police justice thereof, surrogate, special county judge, special surrogate, county clerk, deputy county clerk, special deputy county eleik, or commissioner of deeds, within the district in which the officer is authorized to act, except that a justice of the peace may take such oath or affidavit anywhere in the county containing the town or city in which he is authorized to act'; and when certified by the officer to have been taken before him may be used in any court or before any officer or other person. § 358. Oaths and afSdavits by o£9cers and committees. Where an officer, person, board or committee has been heretofore or is hereafter authorized by law to take or hear testimony or to hear or receive an affidavit, or to take a deposition, in relation to a matter concerning which he or it has a duty to perform, the officer or person, or a member of the board or committee, may administer an oath for that purpose. Where an officer, person, board or committee to whom or to which application is made to do an act in an official capacity requires information or proof to enable him or it to decide upon the propriety of doing the act, he or it may receive an affidavit for that purpose. § 359. Oaths and affidavits taken without the state. An oath or affidavit required, or which may be received, in an action, special pro- ceeding or other matter, may be taken without the state, except where it is otherwise when certified by him to have been taken before him, and accompanied with the like certificates as to his official character and the genuineness of his signature as are required to entitle a deed acknowledged before him to be recorded within the state, may be used, as if taken and certified in this state, by an officer authorized by law to take and certify the same. § 366. Certificate of search for paper as evidence. Where the officer to whom the legal custody of a paper belongs certifies under his hand official seal that he has made diligent examination in his office for the pa,per, and that it cannot be found, the certificate is presumptive evidence of the facts so certified, as if the officer personally testified to the same. § 367. Certificate of officer as evidence of facts. Where a public officer is required or authorized, by special provision of law, to make a certificate or an affidavit touching an act performed by him, or to a fact ascertained 276 CIVIL LAW AND PEACTICE. by him, in the course of his official duty; and to file or deposit it in a public office of the state; the certificate or afT^davit so filed or deposited, or an exemplified copy thereof, is presumptive evidence of the facts therein alleged, except where the effect thereof is declared or regulated by special provision of law. § 368. Presumption of presentment and protest of bills and notes. 1. The certificate of a notary public of the state, under his hand and seal of office, of the presentment by him for acceptance or payment, or of the protest, for non-acceptance or non-payment of a promissory note or bill of exchange; or of the service of notice thereof on a party to the note or bill; specifying the mode of giving the notice, the reputed place of residence of the party to whom it was given, and the post-office nearest thereto; is presumptive evidence of the facts certified, unless the party against whom it is offered has served upon the adverse party with his pleading or within ten days after joinder of an issue of fact, an original aCdavit to the efiect that he has not received notice of non-acceptance, or of non-payment of the note or bill. A verified answer is not sufficient as an affidavit within the meaning of this section. 2. In case of the death or insanity of a notary public of the state, or of his absence or removal, so that his personal attendance or his testimony cannot be procured in any mode prescribed by law, his original protest, under his hand and official seal, the genuineness thereof being first duly proved, is presumptive evidence of a demand of acceptance, or of payment, therein stated; and a note or memorandum personally made or signed by him at the foot of a protest, or in a regular register of official acts kept by him, is presumptive evidence that a notice of nouiacceptance or non-payment was sent or delivered at the time and in the manner stated in the note or memorandum. § 369. Proof of presentment and protest of foreign tills. Proof of the presentment for acceptance or payment of a promissory note or bill of exchange payable in another state, or in a territory or foreign country, or of a protest of the note or bill for non-acceptance or non-payment, or of the service of notice thereof on a party to the note or bill, may be made in any manner authorized by the. laws of the state, territory or country where it was payable. § 370. Affidavit of publication in newspaper. The affidavit of the printer or publisher of a newspaper, published within the state, or of his foreman or principal clerk, showing the publication of a notice or other advertisement authorized or required by law of the state to be published in that news- paper, annexed to a printed copy of the notice or other advertisement, may be read in evidence; and is presumptive evidence of the publication, and also of the matters stated therein, showing that the deponent is authorized to make the affidavit. But this sec- tion does not apply to a case where the aff.davit is required by law to be filed unless it has been duly filed; or to a case where the mode of proving a publication is other- wise specially prescribed by law. § 371. Affidavit of service or posting notice. Where it is necessary upon the trial of an action to prove the service, posting or affixing of a notice, an aff.davit showing the service, posting or affixing to have been made by the person making the affidavit is presumptive evidence of the service, posting or affixing, upon first proving that he is dead or insane, or that his personal attend- ance cannot be compelled, with due diligence. § 372. Marriage certificate as evidence. An original certificate of a marriage, within the state, made by the minister or magistrate by whom it was solemnized; the original entry thereof made, pursuant to EVIDENCE. 377 laWj in the office of the clerk of a city or a town within the state; or a copy of tlie certificate, or of the entry, duly certified, is presumptive evidence of the marriage. § 373. Book of foreign corporation as evidence. Where a party wishes to prove an act or transaction of a foreign corporation, the book or books of the corporation may be used for that purpose, as presumptive evi- dence, whether any or all of the parties are or are not members of the corporation. § 374. Copy of books of foreign corpoiation. 1. If an original book of a foreign corporation is not produced at the trial, as pre- scribed in the last section, a copy thereof or of an entry therein, verified as prescribed in this section, may be used wiLh like effect as the original book; provided that the party intending to use the copy gives the adverse party at least ten days' notice of his intention, specifying briefly the nature of the evidence proposed to be given. 2. The copy must be verified by the 'deposition, taken as prescribed by law, or the oral testimony taken at the trial, of the person who made it or of a person who has examined and compared it with the original book, or the entry therein. 3. The witness must testify that the copy produced is correct; that he made it, or compared it with the original; and that he then knew that the original book so copied, or containing the entry, was the book of the corporation; or that it was then acknowl- edged to him to be such, by an officer or receiver of the corporation, or a person having the custody thereof, naming the person who made the acknowledgment; and he must specify where and in whose custody the original was then kept. 4. This section does not apply where the foreign corporation is a party to the action and seeks to prove its own act or transaction in its own behalf. § 375. Evidence cf weather conditions. Any record of the observations of the weather, or in regard to the amount and con- ditions of the precipitation, taken under the direction of the New York state weather bureau, or the signal service of the United States, or the United States weather bureau, or the meteorological and astronomical observatory of the city of New York, or any copy thereof, when certified in the form of and pursuant to law by the officer in charge thereof at the place where such record is duly filed, and in the case of reports of the United States weather bureau when certified under the seal of the department of agri- culture, that the same is a true copy of such record, may be read in evidence in any court of this state and shall be prima facie evidence of the facts and circumstances therein stated. § 376. Proof of lost execution or writ after sheriff's sa!e of real property. Whenever, upon the trial of an action, it shall appear that at least twenty years theretofore real property has been sold by a sheriff for enforcement of the valid lien thereon of a duly docketed judgment, and that a certificate of the sale has been duly made by the sheriff and filed, and that a conveyance in completion of the purchase has been executed and recorded, but that the execution or writ by virtue of which the sale has so been made can not be found in the office of the clerk with whom the same should have been filed, then and in such case the recital of or reference to such execu- tion or writ contained in the said certificate, or in the said conveyance, or in the record thereof, shall be prima facie evidence of the said exeeiition or writ and of the issue of the same as against any party whose claim of title is not shown to have been accompanied or supported by psaceable possession of the premises in controversy for at least three years immediately preceding the commencement of the action. 278 CIVIL LAW AND PRACTICE. § 377. Designation of person upon whom to make service, as evidence. An exemplified copy of a designation of a person upon whom to make service filed by a foreign corporation as provided in section sixteen of tlie general corporatii^n law, accompanied witli a certificate that it has not been revoked, is presumptive evidence of the execution thereof, and conclusive evidence of the aithority of the officer executing it. § 378. Recital in record of meeting as evidence. A recital in any order, resolution or other record of any proceeding of a meeting referred to in section forty-one of the general construction law that such meeting had been held or adjourned as provided in said section, or that it had been held upon notice to the members, as therein provided, shall be presumptive evidence thereof. § 379. Recitals as to heirships in conveyances. Hereafter, in any proceeding, suit or action pending or hereafter brought in any of the courts of this state, any deed, mortgage, lease, release, power of attorney or other instrument more than thirty years old, executed for the purpose of transferring the title to or interest in lands, tenements or hereditaments situated within this state, which contains recitals that the grantors, grantees, or either, or both, are the heirs at law of a prior owner of the title or interest described in said instrument, shall be pre- sumptive evidence of said heirship as therein recited, if such instrument be duly acknowledged or witnessed and proved in any manner required or permitted at the date of the execution thereof, and be duly recorded in any county where any part of the lands described therein shall be located, or duly recorded in the oflice of the secretary of state of the state of New York. § 380. Proof of statutes and resolutions. A statute or joint resolution passed by the legislature of the state may be read in evidence from a newspaper, designated as prescribed by law to publish the same, until six months after the close of the session at which it was passed; and, at any time, from a volume printed under the direction of the secretary of state. To entitle any copy of a law published, other than those published under the direction of the' secretary of state, to be read in evidence, there shall, be contained in the same book or pamphlet a printed certificate of the secretary of state that such copy is a correct transcript of the text of the original laws. For such certificate the secretary of state shall collect such a fee as he shall deem just and reasonable. § 381. Proof of colonial statutes. A statute contained in the compilation of the colonial statutes transmitted to the legislature by the commissioners of statutory revision, pursuant to chapter one hun- dred and twenty-five of the laws of eighteen hundred and ninety-one, shall be evidence in any action or proceeding, and of the same force and effect as though the original was produced, if it appears from such publication that such statute was copied from the original. § 382. Proof of public records and papers. A copy of a paper filed, kept, entered or recorded, pursuant to law, in a public office of the state, the oflicer having charge of which has, pursuant to law, an official seal; or with the clerk of a court of the state ; or with the clerk or secretary of either house of the legislature, or of any other public body or public board created by authority of a law of the state, and having, pursuant to law, a seal; or a transcript from a record, kept, pursuant to law, in such ;i, public office, or by such a clerk or secretary, is evi- EVIDENCE. 279 denee as if the original was produced. But, to entitle it to be used in evidence, it must be certified, by the clerk of the court under his hand and the seal of the court ; or by the officer having the custody of the original, or his deputy, or clerli, appointed pur- suant to law, under his official seal, and the hand of the person certifying; or by the presiding officer, secretary or clerk of the public body or board, appointed pursuant to law, under his hand, and, except where it is certified by the clerk or secretary of either house of the legislature, under the official seal of the body or board. § 383. Proof of papers and records in town clerk's ofSce. A copy of a paper filed, pursuant to law, in the office of a town clerk, or a transcript from a record kept therein, pursuant to law, certified by the town clerk, is evidence with like effect as the original. § 384. Conveyance and record as evidence. 1. A conveyance, acknowledged or proved, and certified, in the manner prescribed by law, to entitle it to be recorded in the county where it is offered, is evidence without further proof thereof. 2. Except as otherwise specially prescribed by law, the record of a conveyance duly recorded within the state, or a transcript thereof, duly certified, is evidence with like effect as the original conveyance. 3. The certificate of the acknowledgment, or of the proof of a conveyance, or tl:e record, or the transcript of the record, of such a conveyance, is not conclusive; and it may be rebutted, and the effect thereof may be contested, by a party affected thereby. 4. If it appears that the proof was taken upon the oath of an interested or incom- petent witness, the conveyance, or the record or transcript thereof, shall not be received in evidence until its execution is established by other competent proof. § 385. Searches by title insurance and abstract companies. Searches affecting property situate in any county in which the office of county clerk or register is a salaried one, when made and certified to by title insurance, abstract or searching companies, organized and doing business under the laws of this state, may be used in all actions or special proceedings in which official searches may be used, in place of and with the same legal effect as such official searches. § 386. Acknowledged, proved or certified instrument. Any instrument, except a promissory note, a bill of exchange, or a last will, may be acknowledged, or proved, and certified, in the manner prescribed by law for taking and certifying the acknowledgment or proof of a conveyance of real property; and there- upon it is evidence as if it was a conveyance of real property. § 387. Proof of proceedings before justice of the peace. 1. A transcript from the docket-book of .a justice of the peace, within the state, sub- scribed by him, and authenticated by a certificate of the clerk of the county in which the justice resides, under his hand and official seal, to the effect that the person sub- scribing the transcript was, at the date of the judgment therein mentioned, a justice of the peace of that county; and that the clerk is acquainted with his handwriting and verily believes that the signature to the transcript is genuine; is evidence of any matter stated in the transcript, which is required by law to be entered by the justice in his docket-book. 2. The proceedings in an action brought, or a special proceeding instituted, before a justice of the peace, within the state, may also be proved by the oath of the justice. 3. In case of his death or absence, they may be proved by the original minutes of 280 CIVIL LAW AND PRACTICE. tlie proceedings kept by him, pursuant to law, accompanied with proof of his hand- writing; or by a copy of the minutes, sworn to by a competent witness as having been compared with the original entries, with proof that those entries were in the hand- writing of the justice. g 388. Proof of municipal records. An act, ordinance, resolution, by-law, rule or proceeding of the common council of a city, or of the board of trustees of an incorporated village, or of a local board of health of a city, town or incorporated village or of a board of supervisors, within the state, may be read in evidence either from a copy thereof certijed by the city clerk, village clerk, clerk of the common council, clsrk or secretary of the local board of health, or clerk of the board of supervisors; or from a volume printed by authority of the com- mon council of the city, or the board of trustees of the village or the local board of health of the city, town or village, or the board of supervisors. § 389. Proof of public records in New York county. All maps, surveys- and ofEcial records, which sl'.all have been oa record or on file in the office of either the register of the city and county of New York, or the surrogate of said city, or any of the courts of record of said city, or the clerk of the city and county of New York, or any county within the city of Kcw York, or any of the departments of said city as enumerated in section ninety-six of the Greater Kew York charter, or in the office of the registers, surrogate, commissioners of public works or kindred department, or park departnient, for a period of twenty years or upwards prior to such trial, shall be presumptive evidence of their contents, and shall be receiv- able in evidence as such upon any trial in any of the courts of this state in any contro- versy pending therein, between any parties. § 390. Proof of books and recorCs in state comptroller's office. An extract from the books and records in the office of the state comptroller in refer- ence to any lot, piece or parcel of land, certified by him to contain all that is stated in such book or record relating to such lot, piece or parcel of land, may be read in evidence in all courts and proceedings with the same effect as the original book or record. § 391. Proof of statutes, decrees and decisions of another state or country. A printed copy of a statute, or other written law, of another state, or of a territory, or of a foreign country, or a printed copy of a proclamation, edict, decree or ordinance, by the executive power thereof, contained in a book or publication purporting or proved to have been published by the authority thereof, or proved to be commonly admitted as evidence of the existing law in the judicial tribunals thereof, is presumptive evi- dence of the statute, law, proclamation, edict, decree or ordinance. The unwritten or common law of another state, or of a territory, or of a foreign country, may be proved as a fact by oral evidence. The boohs of reports of cases adjudged in the courts thereof must also be admitted as presumptive evidence of the unwritten or common law thereof. § 332. Conveyance of land without the state as evidence. A conveyance of real property, situated without the state, acknowledged or proved, and certified, in' like manner as a deed to be recorded within the county wherein it is offered in evidence, is evidence, without further proof thereof, as if it related to real property situated within the state. A conveyance of real property, situated within another state, or a territory of the United States, which has been duly authenticated, EVIDENCE. 281 according to tlie lavs of that state or territory, so as to be read la evidence in tlie courts thereof is evidence in like manner. § 393. £ze]n.pIification of record of conveyance of land without flie state. An exenaplif-cation of the record of a conveyance of rc^l property situated wilhoat tlie state, and within the United States, ■which has been recorded in the state or terri- tory where the real property is situated, pursuant to the laws thereof, wh:n certified under the hand and seal of the oC^cer having the custody of the record is, if the orig- inal cannot te produced, presumptive evidence of the conveyance and of the due execution thereof. § 394. Proof of procee5in£s before justice of aSjoimng state. 1. A transcript from the docket-book of a justice of tjie peace within an adjoining state, of a judgment rendered by him; a transcript of his minutes of the proceedings in the cause, previous to the judgment; or of an execution issued thereon; cr of the return of an execution; when su-scrihed ty the juotice, ar.d authenticated as prescribed in Bubdivisicn two of this section, is presumptive evidence of his jurisdiction in the cause and of the matters shown by the transcript. 2. Such a transcript must be authenticated by a certiScate of the justice, annexed thereto, to the e"ect that it is in all respects correct and that he had jurisdiction of the cause; and also by a certificate of the clerk or prothonotary of the county, in which the justice resided at the time of rendering the jud~msnt, under his hand and seal of the court of common pleas, or other county court of the county, to the effect that the person subscribing the certificate attached to the transcript was, at the date of the judgment, a justice of the peace of that coimty; and that the signature thereto is in his own handwriting, 3. The judgment and other proceedings, and the justice's authority to render the judgment, may also be proved by the production of the docket or of a co;;"y of the judgment or other proceedings; and the oral testimony of the justice to the truth and correctness thereof and to his authority to render the judgment. i. The last three subdivisions do not prevent the introduction of evidence to contro- vert any of the proof ia relation to the validity of a jud;;;meEt therein specified. § 395. Proof of foreign court records and proceedings. A copy of a record, or other judicial proceeding, of a court of a foreign country, is evidence when authenticated as follows: 1. By the attestation of the clerk of the court, with the seal of the court aCxed, or of the oficer in whose custody the record is legally kcjt, under the seal of his office. 2. Ty a certificate of the chief judge or presiding magistrate of the court, to the effect that the person so attesting the record is the clerk of the court; or that he is the officer in whose custody the record is required by law to be kept; and that his signature to the attestation is genuine. 3. By the certificate, under the great or principal seal of the government under whose authority the court is held, of the secretary of state, or other oHIcer having the custody of that seal, to the effect that the court is duly constituted, specifying generally the nature of its jurisdiction; and that the signature of the chief- judge or presiding magistrate to the certificate speci'cd in the h-et subdivision is gsnuir.e. § 396. Testimony cf a witness cs proof of fcreign court record. A copy of a record, or other judicial proceeding, of a court cf a forc::^ country, attested by the seal of the court i.i which it remains, must also be admitted in evi- dence upon due proof of the following facts: 282 CIVIL LAW AND PRACTICE. 1. That tlie copy offered has been compared by the witness with the original and is an exact transcript of the whole of the original. 2. That the original was, when the copy was made, in. the eustody of the clerk of the court or other officer legally having charge of it. 3. That the attestation is genuine. § 397. Effect of authenticated foreign court record. Nothing in the last two sections is to be construed as declaring the effect of a record or other judicial proceeding of a foreign country, authenticated, so as to be evidence. § 398. Proof of foreign records and documents. A copy of a patent, record or other document remaining of record or on file in a public ofizce of a foreign country, certified according to the form in use in that country, is evidence when authenticated as follows: 1. By the certificate under the hand aiid official seal of a commissioner appointed by the governor to take the proof or acknowledgment of deeds in that country, to the effect that the patent, record or document is of record or on file in the public office and that the copy thereof is correct and certified in due form; and 2. By a certificate under the hand and official seal of the secretary of state, annexed to that of the commissioner, to the same eff'ect as prescribed by law for the authenti- cation of the certificate of such a commissioner, upon a conveyance to be recorded within the state. The certifi'cate of the commissioner, thus authenticated, is pre- sumptive evidence that the copy of the patent, record or document is certified accord- ing to the form in use in the foreign country; or 3. By a certificate under the hand and official seal of a consular officer of the United States to the effect that the patent, record or document is of record or on file in the public office and certified according to the form in use in the foreign country, and a copy of a patent, record or other document so authenticated is presumptive evidence that the same is certified according to the form in use in the foreign country. § 399. Copies of records of United States courts. A copy of the record, or any other proceeding, of a court of the United States, is evidence when certified by the clerk or officer in whose custody it is required by law to be. § 400. Records and documents in XTnitefl States departments. A copy of a record or other paper, remaining in a department of the government of the United States, is evidence, when certified by the head, or acting chief officer, for the time being, of that department; or when certified by the officer in whose charge it is, pursuant to a statute of the United States, or otherwise in accordance with a statute of the United States, relating to certifying the same EVIDENCE. 283 § 401. Certificate of population by director of census. A certificate of the director or other officer in charge of the census of the United States, attested by the secretary of the interior, stating the population of any part of the United States, or giving the result of said census otherwise, shall be received as prima facie evidence of such facts. § 402. Record of conveyance or mortgage of vessels as evidence. The record of a hill of sale, mortgage, hypothecation or conveyance of a vessel belonging to a port or place within the United States, recorded in the office of the collector of customs where the vessel is registered or enrolled, which was acknowledged or proved before it was recorded in like manner as a deed to be recorded within the state ;- or a transcript of such a record, duly certified by the collector, is evidence with the like effect as the original. 284 CIVIL LAW AND PKACTICE. CHAPTEE XIV. PEOCEDTJEE IN ACTIONS GENEEALLT. Section 1. Application for process. 2. Summons. 3. Order of arrest to accompany summons. 4. Warrant of attachment to accompany summons. 5. Requisition to replevy to accompany summons. 6. Service of summons and accompanying papers. 7. Proceedings upon return day of summons. 8. Offer of judgment. 9. Pleadings. 10. Complaint and demurrer to complaint. 11. Answer and demurrer threats. 12. Counter claim. 13. Consequence of neglect to plead counterclaim. 14. Answer of title. 15. Verified pleadings. 16. Amendment of pleadings. 17. Adjournments. 18. Compelling attendance of -witneBses. 19. When case triable without jury. 20. Selection of jury. 21. The trial and its incidents. 22. Decision and judgment. 23. Minutes of trial and docket of justice. 24. Executions. 25. Levy and sale under execution. 26. Property exempt from execution. 27. Garnishee of wages or income. § 1. Application for process. Ordinarily the statement made to a justice of the peace of the supposed cause of action of the person requesting the issuing of a summons for the commencement of an action is as strong as the actual facts will war- rant, and is not entirely impartial and unbiased. While the amount involved in the proposed controversy may not be large, the importance of the principle involved is not usually underrated by the party. Difficult and perplexing questions of law are often presented to a justice of the peace for determination that require careful consideration; but these questions are fo be determined from the facts presented under oath upon the trial. It is not the time nor tlie province of the justice to attempt to determine any question likely to arise upon the trial on the application made to him for the summons to commence an action. He will discharge PROCEDURE m ACTIONS GENERALLY. 285 his full duty on that occasion by issuing the process and assessing the applicant for the legal fees. The justice should never allow himself to become the legal advisor of the proposed plaintifE, or to be influenced in any degree by statements made to him out of court. The party to be sued may have the right of the controversy, and is at least entitled to the unprejudiced judgment of the court when his side of the case is presented. It is always proper for the justice so far to inform himself as to the nature of the proposed action as to enable him to determine whether the caase of action is one of which he has jurisdiction. The question of jurisdiction may depend upon the nature of the action, the amoimt involved or sought to be recovered or the residence of the parties plaintiff or defendant, but never upon the question whether the facts which the plaintiff may prove will sustain the proposed action. The limitations upon the jurisdiction of a justice of the peace, and the cases in which jurisdiction is expressly conferred, have been considered in a preceding chapter. The justice may also properly consider whether he is disqualified from sitting in or taking any part in the decision of the action by reason of interest therein, or by reason of relationship by consanguinity or affinity to any of the parties within the sixth degree. Just. Ot. Act, § 492.) If the justice is disqualified to sit in the cause by reason of consanguinity to one of the parties, he cannot sit even by consent of both the parties, and if he do, his judgment will be vacated. {Oahley v. Aspinwall, 3 N. Y. 547; People v. Connor, 65 Hun, 392, 20 N. Y. Supp. 209; People v. McDonough, 8 App. Div. 591, 40 N. Y. Supp. 1147.) The degree of relationship must be ascertained by ascending from the judge to the common ancestor, and descending to the party, counting a degree for each person in both lines, including the judge and party, and excluding the common ancestor. (Just. Ct. Act, § 492.) If the plaintiff is an infant the justice should appoint a guardian for him before issuing the summons, as provided in section 35 of the Justice Court Act. This appointment 'will be made upon the application of the infant or general guardian. (For form of the application see Form No. 5.) The consent of the guardian and the appointment may be as in Form No. 6. § 2. Summons. Every action is commenced by the service of a summons upon J;he party defendant, or by voluntary appearance of the parties and the filing of the complaint, either with or without a joinder of issue. (Just. Ct. Act, § 44.) The cases in which the parties voluntarily appear and join issue are excep- tional. Ordinarily, the justice, on request and prepayment of his fees, 286 CIVIL LAW AND PRACTICE. prepares a summons and copy and delivers tlie same to the proper officer to be served. A summons is a mandate, and, like all other mandates issued by the justice, must be signed by him; and must be entirely filled up so as to have no blank either in date or otherwise. (Just. Ct. Act. § 464; Ean- naman v. Muchle, 20 Civ. Pro. E. 296 ; Title Otuirantee (& T. Co. v. John- son, 95 Misc. 101, 160 K Y. Supp. 189.) The Justice Court Act prescribes what the summons must contain (Just. Ct. Act, § 45) and the summons should comply with the requirements of the statute. (See Porin ISTo. 1.) The omission of the year in the copy served will not invalidate a judgment entered upon the failure of the defendant to appear. {Epstein V. Prosser, 112 IST. Y. Supp. 174; Lenham Mercantile Co. v. Eerhe, 55 Misc. 310, 105 N. Y. Supp. 472.) But reasonable care will avoid such errors, for a justice's court acquires jurisdiction only through compliance with the statute. The date of the summons is material, and if antedated through error and the plaintiff takes no steps to secure an amendment, the action should be dismissed on the defendant's motion. {Richmond Sales Co. V. Morris, 157 App. Div. 374, 142 IST. Y. Supp. 244.) A summons issued December 28, 1907, returnable by error January 7, 1907, may bs disregarded by the defendant, and the court acquires no jurisdiction to render judgment against him. (Epstein v. Prosser, 133 App. Div. 859, 117 N. Y. Supp. 1115.) In an action for a penalty or forfeiture, the summons must have en- dorsed thereon a reference to the statute giving the right of action. (Just. Ct. Act, § 49.) The summons should be made returnable immediately upon the arrest of the defendant within twelve days after the day when it was issued, if accompanied with an order of arrest, but in every other case it must be returnable at a time specified, not less than six nor more than twelve days after the day when it was issued. It cannot lawfully be made returnable on a legal holiday. (Just. Ct. Act, § 46.) Ordinarily a summons cannot be amended after the commencement of the action. {Gifford v. Fargo, 106 Misc. 599, 176 K Y. Supp. 568.) § 3. Order of arrest to accompany s,ummons. If at the time the summons is issued the plaintiff applies to the justice for an order for the arrest of the defendant (Just. Ct. Act, § 60) and in support of the application presents to the justice an affidavit showing that a sufficient cause of action exists against the defendant and that the case is within the provisions of sections 60 and 61 of the Justice Court Act (see Form No. 86), and also presents to the justice the written under- PROCEDUEE m ACTIONS GENEEALLY. 287 taking to the defendant required ty section 62 of that act (see Form No. 87), the justice must grant the order of arrest. (Just. Ct. Act, §§ 62, 63.) The affidavit must state the facts from which the alleged cause of action arises {Dadirrmn v. Whitson, 54 Misc. 54, 105 N. Y. Supp. 458), and also the facts from which the justice may determine that the case falls under one of the subdivisions of section 60. (See Strouh v. Henly, 1 How. N. S. 400.) The facts must he stated and not the mere conclusions of the party or person making the affidavit. {Diad v. Shibley, 49 Misc. 315, 99 N. Y. Supp. 188.) It will not he enough that the facts are stated upon information and belief; and facts which may he within the knowledge of the affiant must be stated positively ; and where any facts necessarily rest upon information derived from others, they may be so stated, but the eources of the information should be particularly set out and good reasons given why a positive statement cannot be procured. (Bolker v. Gonzalez^ 25 App. Div. 96, 48 N. Y. Supp. 1015.) If the papers presented to the justice are sufficient to justify the grant- ing of the order, an order containing the matters required by section 63 should be indorsed upon or attached to the summons and subscribed by the justice, and delivered to a constable of other proper officer for service. (See Just. Ct. Act, § 63. See also Form No. 88.) § 4. Warrant of attachment to accompany summons. If the party applying for a summons also applies for a warrant of attachment to accompany it, and in support of his application presents to the justice the affidavit required by section 75 of the Justice Court Act [(see Form No. 90), and the undertaking required by section 77 of that act (see Form No. 91), and both the affidavit and the undertaking are sufficient to satisfy the requirements of those sections, the justice must issue the warrant of attachment applied for. (Just. Ct. Act, § 74.) The warrant must be indorsed upon or annexed to the summons ; must be subscribed by the justice ; must briefly recite the ground of the attach- ment; must specify the amount of the plaintiff's demand as stated in the affidavit ; and must require the constable to whom the summons is deliv- ered to attach, on or before a day specified therein, which must be at least six days before the return day of the summons, and safely to keep, as much of the defendant's goods and chattels within his county, as will satisfy the plaintiff's demand, with the costs and expenses, and to make return of his proceedings thereon to the justice at the time when the summons is return- able. (Just. Ct. Act, § 76.) For the form of the warrant see Form No. 92.) 288 CIVIL LAW AND PEACTICE. The justice will then deliver the summons and warrant to a constable for service. It is well settled that a court or officer is without jurisdiction to issue ia warrant of attachment when the affidavit or affidavits presented to him are defective. (Clearwater v. Brill, 61 K Y. 625; Smith v. Holt, 37 App. Div. 24, 55 N. Y. Supp. 731 ; BuppeH v. Haug, 87 N, Y, 141 ; Donnell'v. Williams, 21 Hun, 21G ; Murray v. Eemhin, 30 Hun, 37.) It is therefore highly important that the justice should closely scrutinize the affidavits presented to him in support of the application, and refuse to issue the warrant if the affidavits do not establish the facts upon which the right to the warrant depends. All of the facts required hy section 75 must be shov/n by affidavit " to the satisfaction of the justice." It is enough if the affidavits presented show such facts to his satisfaction, but there must be some evidence. {Bup* pert V. Haug, 87 IST. Y. 141, 144.) The satisfaction of the justice must be a legal satisfaction. He is to be convinced. His conviction is not to be arbitrary or capricious. It must be brought about by means that are fit and enough to produce conviction in the mind acting judicially. Ho may no more be satisfied by that which the law will deeni- inadequate to produce conviction, than he may withhold his satisfaction when that proof is produced to him that the law will say he ought in reason to be satisfied with. (Follinrd v. Wallace, 2 Johns. 395;, People. ex rel. Kenyan y.. Sutherland, 81 N. Y, 1, 5, 3 Wait's L. & Pr. 102, and cases cited.) For example, if the action is upon a jud^pnent, or to recover for a breach of contract, the plaintiff must show by aUdavit, to the satisfaction of the justice, that he " is entitled to recover a sum stated therein over and above all counterclaims known to him." (Just. Ct. Act,-§ 75.) It is not neces- sary to follow the very words of the statute in stating the fact above quoted, although the words of the statute furnish the safest formula. But these words or words of like import must appear in the affidavit presented to the justice (Buppert v. Haug, 87 IT. Y. 141; Donnell v. Williams, 21 Hun, 216), and it will not be sufficient that the affidavit of an agent or attorney is presented to the justice stating that the plaintiff is entitled to recover a specified sum " over and above all counterclaims known to deponent." It is the knowledge of the plaintiff and not that of an agent or attorney that the section requires. (Mitchell v. Anderson, 32 Misc. 13 ; Murray v. Hankin, 30 Hun, 37; Smith v. Arnold, 33 Hun, 484; Smith v. Holt, 37 App, Div. 24, 55 IST. Y. Supp. 731. And see Torrington v. Merrich, 101 N. Y. 5.) So where the attachment is applied for upon the ground that the defeni^: PKOCEDUEE IN ACTION'S GENEEALLY. 289; ant was " about to assign, dispose of, or secrete Ms property with intent to defraud his creditors," not only must the facts alleged tend to show such intent {Clearwater v. Brill, 61 N. Y. 625; Franhe v. Havens, 102 App. Div. 67), but also, if the facts are stated upon information and belief, the sources of deponent's information should be stated, and the reason for the failure to procure the affidavit or depositions of the persons from whom the information was derived. (Steuben Go. Banlc v. ATberger, 78 !N". Y. 252 ; Smith V. Holt, 37 App. Div. 24; Brandly^ v. American Butter Co., 130 App. Div. 410.) § 5. Requisition to replevy to accompany summons. Where an action is about to be commenced in a justice's court to recover a chattel, with or without damages for the wrongful taking, withholding or detention thereof, the plaintifF may apply to the justice at the time when the summons is issued, but not afterwards, for a requisition requiring the constable to whom the summons is delivered i:o replevy the property described in the affidavit presented to the justice in support of the applica- tion. (Just, Ct. Act, §§ 89, 90, 94, 99.) This affidavit must particularly describe the chattel to be replevied, and must contain the following allegations : 1. That the plaintiff is the owner cf the chattel, or is entitled to the possession thereof by virtue of a special property therein; the facts with respect to which must be set forth. 2. That it is wrongfully detained by the defendant. 3. The alleged cause of the detention thereof, according to the best knowledge, information and belief of the person making the affidavit. 4. That it has not been taken by virtue of a warrant, against the plain- tiff, for the collection of a tax, assessment, or fine, issued in pursuance of a statute of the State, or of the United States ; or, if it has bsen taken under color of such a warrant, either that the taking was unlawful by reason cf defects in the process, or other causes specified or that the detention is unlawful, by reason of facts specified, which have subsequently occurred. 5. That it has not been seized by virtue of an execution or warrant of attachment, against the property of the plaintiff, or of any person from or through whom the plaintiff has derived title to the chattel, since the seizure thereof; or, if it has been so seized, tLat it was exempt from the seizure, by reason of facts specified, or that its detention is unlawful, by reason of facts specified which have subsequently occurred. (Just. Ct. Act, §§ 94, 95.) 19 • 290 CIVIL LAW AND PRACTICE. Where the affidavit describes two or more chattels of the same kind, it must state the number thereof, and where it describes a chattel in bulk, it must state the weight, measurement or other quantity. Where it describes two or more chattels to be replevied, it may, at the election of the plaintiff, state the aggregate value of all ; or, separately, the value of any chattel or class of chattels, and the aggregate value of the remainder, if any. Where it states separately the value of one or more chattels or classes of chattels, the defendant may require, as prescribed in the following provisions of this article, the return of any or all of the chattels or classes of chattels, the value of which is thus stated, or of the portion thereof which has been replevied. If he procures such a return, the remainder must be delivered to the plaintiff, except as otherwise prescribed in this article. (Just. Ct. Act, § 96.) The affidavit may be made by the plaintiff's agent or attorney, if the material facts are within his personal knowledge ; or if the plaintiff is not within the county where the attorney resides or has an office, or is not capable of making the affidavit. Where the affidavit is made by an attorney or agent, he must state therein what allegations, if any, are made upon information and belief ; and he must set forth therein the grounds of his belief, as to all matters not stated upon his knowledge and the reason why the affidavit is not made by the plaintiff. (Just. Ct. Act, § 98. See Form No. 96.) An undertaking must also be presented to the justice, executed by at least two sureties, to the effect that the sureties are bound in a specified sum, not less than twice the value of the chattel as stated in the affidavit, for the prosecution of the action ; for the return of the chattel to the defendant if possession thereof is adjudged to him, or if the action abates or is dis- continued before the chaittel is returned to the defendant; and for the payment to the defendant of any sum which the judgment awards to him against the plaintiff. (Just. Ct. Act, §§ 94, 97.) The undertaking must be acknowledged, the affidavit of the sureties as to their residence and property must be appended thereto, and indorsed with the approval of the justice. (See Just. Ct. Act, § 420. For form of the undertaking, see Form No. 97. ) Upon receiving the affidavit and undertaking the justice must indorse upon or attach to the affidavit a written requisition, subscribed by him, requiring the constable to whom the summons is delivered to replevy the property described in the affidavit, on or before a day specified in the requisition, which must be at least six days before the return day of the summons. The affidavit and requisition must be delivered to the constable PEOCEDUEE m ACTIONS GENEEALLY, 291 ■with the summons. (Just .Ct. Act, § 99.) Eor form of requisition, see Form No. 98.) § 6. Service of summons and accompanying papers. If the defendant is a natural person, service of the summons is made by the constable delivering a copy of the summons to the defendant as provided in section 48 of the Justice Court Act. If the action is against a city, the copy of the summons is delivered to the mayor, comptroller, treasurer, counsel, attorney or clerk ; or if the city lacks either of those officers, to the officer performing corresponding func- tions under another name; if the action is against a village, to the presi- dent;, clerk or any trustee thereof ; if the action is against a county, to the chairman or clerk of the board of supervisors; if the action is against a town, to the supervisor, town clerk, or any justice of the peace thereof; if the action is against a school district, to any member of the board of education, any trustee, the secretary or clerk. (Just. Ct. Act, § 50.) Service is made on a domestic corporation, other than a municipal cor- poration, by delivering a copy to the president, or other head of the cor- poration, the secretary or clerk; the cashier, treasurer, a managing agent, or any director or trustee, by whatever official title he is called. And if the defendant is a foreign corporation, service is made by delivering a copy to the president, treasurer or secretary; or, if the corporation lacks either of these officers, to the officer performing corresponding functions under another name; or, to the cashier, a director or managing agent of the corporation ; or to a person designated for the purposes as provided in section 16 of the General Corporation Law. (Just. Ct. Act, § 51.) If the defendant to be served is any other domestic corporation, or person, company or partnership doing business in another county than that in which he or it resides, the summons may be personally served upon it or him by delivering a copy thereof to the president or other head of the corporation, the secretary or clerk to the corporation, the cashier, the treas- urer, director, managing agent or trustee of the corporation, person, part- nership or company by whatever official title he or it is called. (Just. Ct. Act, § 52.) If the defendant to be served is a railroad corporation, and no officer of the corporation resides in the county to whom a copy of the summons may be delivered, as above provided, personal service may be made as provided in section 53 of the Justice Court Act ; and if the defend- ant to be served is a corporation, association, partnership or person doing business in the State as an express company, an insurance company, or a telegraph company, and no person resides in the county to whom a copy 292 CIVIL LAW AND PKACTICE. of the summons may be delivered, as above provided, personal service may be made as provided in section 64. A copy of the complaint may be served with the summons. (Just. Ct. Act, § 47.) If a verified complaint is to be served with the summons it will be attached thereto and delivered to the constable for service. Just. Ct. Act, § 150.) Service will be made by delivering to the defendant a copy of the summons and complaint attached. If an order of arrest accompanies the summons the constable, at the time of serving the summons, will execute the order by arresting the defend- ant and tating him forthwith before the justice who issued it, or, if he is absent, or unable to try the action, before another justice of the same town or city. (Just. Ct. Act, § 65.) The constable will then deliver to the justice the order, and a written return thereto, under his hand, stating the manner in which he has executed it, and either that he has notified the plaintiff, or that he could not do so with reasonable diligence. (Just. Ct. Act, § 66.) The constable must also deliver to the defendant a copy of the order of arrest and the papers on which it was granted and of the under- taking. (Just. Ct. Act, § 64.) If a warrant of attachment has issued, the constable should first execute the warrant in the manner prescribed by section 78, then serve the summons and warrant upon them as prescribed in section 80, and make his return' as prescribed in section 85 of the Justice Court Act. If a requisition to replevy chattels has been placed in the hands of the constable at the time of issuing the summons, he should first execute the requisition by replevying and taking into his possession any chattel described in the afiidavits found in the possession of the defendant. If any chattel described in the affidavit is secured or concealed in a building or inclosure, the constable should publicly demand its delivery, and if it is not delivered pursuant to the demand he should cause the building or in- closure to be broken open, and then take the chattel into his possession (Just. Ct. Act, §§ 100, 101), and then serve the summons, affidavit and requisition as prescribed in section 102 of the Justice Court Act, and make his return as required by section 104. For forms of returns of service of summons, see Forms Nos. 2, 3 and 4. (See Justice Court Act, § 58.) Where a verified complaint was attached to the summons the constable's return should show that service was made upon the defendant by delivering to and leaving with him personally true copies thereof, at a place within the county, and at a time specified, which should not be less than six nor more than twelve days before the return day of the summons. {Syracuse PKOCEDUKE IN ACTIONS GENERALLY. 29S Molding Co. v. Squires, 61 Hun, 48, 15 N. Y. Supp. 321.) It is not essential that the place of service be stated, as it will be presumed that' it was served within the county. {Beach v. Baker, 25 App. Div. 9, 48 N. Y. Supp. 1042.) A return of service is essential to the jurisdiction of the justice. (Moore v, Taylor, 88 App. Div. 4, 84 N. Y. Supp. 518.) § 7. Proceedings upon return day of summons. Upon the return of a summons duly served, the justice must wait one hour after the time specified therein for its return, unless the parties sooner appear. (Just. Ct. Act, § 214.) A party who is of full age, who has not been judicially declared incom- petent to manage his affairs, may appear and prosecute or defend the action in person or by attorney, as he may elect. (Just. Ct. Act, § 32.) If the defendant is an infant no further proceedings can be taken in the action until a guardian has been appointed for him for the purposes of the action as provided in section 36. The defendant may nominate the person to act ko Euch guardian. (For form of the application, see Form No. 7.) If the defendant does not appear upon the return of the summons, or if he neglects or refuses to nominate, the justice may appoint any proper person as guardian for the infant defendant on the application of the plaintiff. (See Form No. 8.) If the plaintiff or defendant appears by attorney, his authority to so appear must be proved unless admitted by the adverse party. (Just. Ct. Act, § 34.) If the defendant is in court in custody of the constable under an order of' arrest issued in the action, he may move for an order discharging him from arrest. (Just. Ct. Act, §§ 68, 69, TO.) Such discharge will not affect the jurisdiction of the justice over the action, which must proceed as if commenced in the ordinary manner. (Just. Ct. Act, § 71.) So if the constable has returned that he has notified the plaintiff of the arrest of the defendant, and the plaintiff fails to appear within one hour after the defendant has been brought before the justice, a judgment of nonsuit must be rendered. (Just. Ct. Act, § 66.) In no case can the defendant be de- tained in custody beyond twelve hours from the time when he was brought before the justice, unless within that time a venire is issued, or the trial of the action is commenced, or is delayed with the express assent of the defendant. (Just. Ct. Act. § 67.) So a defendant, whose property has been attached, may, upon the return day of the summons, apply to the justice to vacate the warrant of attach- ment, or modify it, or increase the plaintiff's security. This application may be founded upon the papers upon which the warrant was granted, or 294 CIVIL LAW AND PRACTICE. upon proof by affidavit on the part of tlie defendant, or upon both. If it is founded upon proof on che part of the defendant, it may be opposed by new proof by affidavit on the part of the plaintiff tending to sustain any ground for the attachment recited in the warrant, but no other. The justice may, on the return of the summons, or at any other time to which the action is adjourned, vacate the warrant of attachment upon his own motion if he deems the papers upon which it was granted insufficient to authorize it., (Just. Ct. Act, § 86.) In fact, it is the duty of the justice to grant such motion on the part of the defendant whenever made, whether upon the return day of the summons or upon a day to which the cause has been adjourned, or upon his own motion when his attention is called to the fact that the affidavits upon which the warrant was granted did not state facts sufficient to give him jurisdiction to issue the warrant. (FranJce v. Havens, 102 App. Div. 67, 92 IST. Y. Supp. 377.) If the defendant was not served with the summons, it is advisable that he appear specially for the purpose of making this motion. If the defendant has appeared gen- erally in the action, or if the sunimons was served personally upon him, or where judgment may be taken against him as being indebted jointly with another defendant who has been thus summoned or has thus appeared, the justice may proceed to hear and determine the action although he has vacated the warrant of attachment. But in every other case the justice, on vacating a warrant of attachment against the property of a defendant must dismiss the action as to him. (Just. Ct. Act, § 87.) Where the defendant has not appeared, and the summons has not been personally served upon iim, and his property has been duly attached by virtue of a warrant which has not been vacated, the justice must proceed to hear and determine the action. (Just. Ct. Act, § 88.) If the action is brought to recover a chattel, and the defendant does not appear, and the summons has not been personally served upon him, and a chattel, or part of a chattel, to recover which the action is brought has been replevied, and the proceedings thereupon have been duly taken as pre- scribed in article 6 of the Justice Court Act, the justice must proceed to hear and determine the action with respect to that chattel ; or, if the action is brought to recover two or more chattels, with respect to those which have been replevied ; in like manner and with like effect as if the summons had been personally served. (Just. Ct. Act, § 123.) And where the summons has been personally served upon the defendant, or where he appears, the justice must proceed to hear and determine the action, although the plaintiff has not required the chattel to be replevied or the constable has not been able to replevy it. (Just. Ct. Act, § 124 ; Bame v. Beyhara, 77 Hun, 529, PKOCEDUEE IN ACTIONS GENEEALLY. 295 28 N. Y. Supp. 930 ; Young v. Carey, 29 Misc. 278, 61 N. Y. Supp. 508 ; Ouyon V. Booney, 6 N. Y. Supp. 99.) Where a chattel has been replevied, and the defendant does not require its return, and has given notice that he excepts to the plaintiff's sureties, they must justify upon the return of the summons, or a new undertaking must be given with other sureties who must then appear and justify. (Just. Ct. Act, § 105.) And where the defendant does not except to the plaintiff's sureties, and has served upon the justice a notice that he requires the return of the chattel replevied, and with the notice has delivered to the justice the required affidavit and undertaking, the sureties in the under- taking must justify before the justice on the return of the summons. The affidavit to be delivered to the justice with the notice must contain an alle- gation, either that the defendant is the owner of the chattel, or that he, is lawfully entitled to the possession thereof by virtue of a special property therein, the facts with respect to which must be set forth ; while the under- taking delivered to the justice must be executed by at least two sureties to the effect that they are bound in a specified sum, not less than twice the value of the chattel as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if delivery thereof is adjudged, and for the payment to him of any sum which the judgment awards against the defendant. (Just. Ct. Act, § 106 ; Barton v. Donnelly, 6 Misc. 473, 27 N. Y. Supp. 525.) For the purpose of justification each of the sureties inust attend before the justice and be examined on oath touching his suffi- ciency in such manner as the justice in his discretion thinks proper. If the justice finds the sureties sufficient he will annex the examination to the undertaking, indorse his allowance thereon, and file them in his office. (Just. Ct. Act, § 110 ; Barton v. Donnelly, 6 Misc. 473, 27 N. Y. Supp. 525.) If both parties appear before the justice on the return day of the sum- mons they will proceed to join issue (Just. Ct. Act, § 125), and either proceed to trial or adjourn the cause to a day specified. If the defendant does not appear or neglects or refuses to plead, the plaintiff must prove his case, unless the action was commenced by the service of a summons and verified complaint, in which case the justice will file the summons and complaint and proof of service, and enter judgment for the plaintiff against the defendant for the amount demanded in the complaint, with costs, without further proof. (Just. Ct. Act, §§ 215, 216, 259.) 296 CIVIL LAW AND PRACTICE. § 8. Offer of judgment. Except where the action is to recover a chattel, a defendant who con- cedes his liability to judgment against him for a definite sum, less than the plaintiff's claim, may well consider the advisability of filing with the justice, before answering, an offer to allow judgment to be taken against him for that or other specified sum, with costs, as provided in section 21S of the Justice Court Act, (See Form No. 60.) If the plaintiff files au acceptance of the offer with the justice (Form No. 61) judgment will be rendered accordingly. (Form No. 62.) If the offer, is not accepted the only effect of the offer and failure to accept it is upon the costs subsequent to the offer should the plaintiff fail to obtain a more favorable judgment. (See Southard v. Becker, 15 Misc. 436, 37 N. Y. Supp. 927.) A verbal acceptance entered in the docket-book is sufficient. (Beecher v. Kendall, 14 Hun, 327.) § 9. Pleadings. Subject to two exceptions, the pleadings in a justice's court may be oral or written. If the pleading is oral, its substance must be entered by the justice in his docket-book; if it is written, it must be filed by him, and a reference to it made in his docket-book. (Just. Ct. Act, § 127.) One exception to the rule permitting all pleadings in this court to be oral, at the option of the pleader, is where an answer is interposed to a verified complaint, as in that case the answer must be in writing and verified. (Just. Ct. Act, § 151.) The other exception is where the defendant sets forth in his answer facts showing that the title to real property will come in question, and such answer must be in writing and signed by the defend- ant, his attorney or agent. (Just. Ct. Act, § 172.) The authorized pleadings are the plaintiff's complaint; the defendant's answer; the defendant's demurrer to the complaint, or to one or more distinct causes of ■ action separately stated therein ; and the plaintiff's demurrer to the answer or to one or more counterclaims stated in the answer. (Just. Ct Act, § 126.) A pleading in a justice's court is not required to be in any particular form, but must be expressed so as to enable a person of common understand- ing to know what is intended. (Just. Ct. Act, § 127.) Technical preci- sion in matters of form is not required ; and even in matters of substance great liberality is allowed. The courts uniformly construe these pleadings liberally. (Totman v. Drake, 52 Misc. 60, 102 N. Y. Supp. 379 ; Ross. V. Hamilton, 3 Barb. 609; Willard v. Bridge, 4 Barb. 361; Evans v. Williams, 60 Barb. 346; Enallakan, 47 Hun, 117.) A pleading is sufB- cient which informs the adverse party of the true cause of complaint, PKOCEDUEE IN ACTIONS GENERALLY. 297 or matter of defense, so that the parties may go to ttial understandingly and without danger of surprise. {Willard v. Bridge, 4 Barb, 361.) The Justice Practice Act furnishes a simple formula which may he adopted for the purpose of setting forth a cause of action, defense, or counterclaim, founded upon an account, or upon an instrument for the payment of money only (Just. Ct. Act, § 149), and has also furnished a substitute for a copy account or bill of particulars. (Just. Ct. Act, § 158.) The only relief in a justice's court against a defective pleading is a demurrer ; the justice has no authority to entertain a motion to strike out an answer or counterclaim contained therein. {McFee v. Van Deboe, 160 N. Y. Supp. 716.) § 10. Complaint and demurrer to complaint. A complaint must state in a plain and direct manner the facts constitut- ing the cause of action. (Just. Ct. Act, § 129.) If the complaint, or any distinct and separate cause of action stated therein, is not sufficiently explicit to be understood, and by that is meant sufficiently explicit to fairly inform the defendant upon what the cause of action is based ( Village of Cortland v. Howard, 1 App. Div. 131, 37 N. Y. Supp. 843), or, if it is defective for any of the other reasons specified in section 132 of the Justice Court Act, it may be demurred to by the defendant. A demurrer to the complaint raises an issue of law as to the sufficiency of the complaint as a pleading, and this issue is to be decided by the justice before further pro- ceedings are had in the action. . (See Cashman v. Reynolds, 123 N. Y. 138, 141.) If the justice deems the demurrer well founded he must permit the complaint to be amended, and if the plaintiff fails to amend, the defective pleading, or part of the pleading demurred to, must be disregarded. If the justice deems the demurrer not well founded, he must permit the defend- ant, at his election, to plead over, or, in other words, to answer the com- plaint. (Just. Ct. Act, § 135.) For the form of a demurrer, see Form No. 32. For forms of complaints, see Forms Nos. 8-31. § 11. Answrer and demurrer thereto. The Justice Court Act contains different provisions as to the contents of an answer to a verified complaint than is required in the answer to an unverified complaint. If the complaint is verified, the answer must con- tain a general or specific denial of each material allegation of the com- plaint controverted by the defendant, or any knowledge or information thereof sufficient to form a belief; a statement of any new matter consti- tuting a defense or counterclaim in ordinary and concise language without 298 CIVIL LAW AND PRACTICE. repetition. (Just. Ct. Act, § 136.) If the complaint is not verified, the answer may contain a general denial of each allegation of the complaint or a specific denial of one or more allegations thereof. It may also set forth in a plain and direct manner new matter constituting one or more defenses or counterclaims. (Just. Ct. Act, § 137.) The plaintiff may demur to a counterclaim or a defense consisting of new matter contained in the answer on the ground that it is insufficient in law on the face thereof. (Just. Ct. Act, § 144.) The plaintiff may also demur to a counterclaim where one of the objections specified in section 145- of the Justice Court Act appears on the face of the counterclaim. Such a demurrer must distinctly specify the objection to the counter- claim. (Just. Ct. Act, § 146.) By the term " new matter," as applied to a defense of counterclaim, is meant facts outside the issues that are or may be raised by a denial ; and by " defense," an allegation of facts which, if the complaint be taken as true in all particulars, nevertheless defeats the action. {Frank v. Miller, 116 App. Div. 855, 102 K Y. Supp. 277; Sirooch Plush Co. v. Talcott. 129 App. Div. 14, 113 IST. Y. Supp. 214.) A counterclaim is a statement in an answer of a cause of action in favor of the defendant, or one of sev- eral defendants, against the plaintiff, or, in a proper case, against the person whom he represents. (Just. Ct. Act, § 138.) For the form of an answer containing a general denial, defense, and counterclaim, see Form No. 33. § 12, Counterclaim. Every counterclaim must be of such a nature that a justice's court has jurisdiction of the cause of action founded thereon (Oragin v. Lovell, 88 K Y, 258, 263; Just. Ct. Act, § 139) and must tend in some way to diminish or defeat the plaintiff's recovery, and must be one of the follow- ing causes of action against the plaintiff, or, in a proper case, against the person whom he represents^ and in favor of the defendant, or of one or more defendants, between whom and the plaintiff a separate judgment may be had in the action. 1. A cause of action, arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim or connected with the subject of the action. 2. In an action on contract, any other cause of action on contract, exist- ing at the commencement of the action. (Just. Ct. Act, § 138.) The first subdivision of section 138 does not limit the right of a defend- ant to interpose counterclaims to an action brought on a contract, bnt gives PKOCEDURE IN ACTIONS GENEEALLY. 299 the right to interpose counterclaims in an action brought to recover dam- ages for a tort, if the causes of action set out in the complaint and in the answer arise out of the same contract or transaction or relate to the same subject. Nor does the subdivision provide that the cause of action set up as a counterclaim must arise out of a contract, but it authorizes the inter- position of causes of action arising out of torts as counterclaims. The theory of the Justice Court Act is to authorize all connected causes of action, whether arising out of contracts or torts, to be litigated in the same action. But a tort cannot be the subject of a counterclaim, where it does not arise out of, or is not connected with the plaintiff's cause of action, or, in other words, with the fact constituting the plaintiff's cause of action. (Rothschild v. Pittman, 132 N. Y. 472 ; Rochester Dist. Co. v. O'Brien, 72 Hun, 462; Ter Rule v. Marsland, 81 Hun, 420; Davis v. AiMn, 85 Hun, 554.) And in a tort action, a counterclaim on contract is improper in the absence of an allegation that it arose out of the same transaction. {Smith V. Rensselaer Creamery Co., 131 App. Div. 387, 115 N. Y. Supp. 273.) But the counterclaim specified in subdivision second of section 138 is subject to the following rules : 1. If the action is founded upon a contract which has been assigned by the party thereto, other than a negotiable promissory note or bill of ex- change, a demand, existing against the party thereto, or an assignee of the contract, at the time of the assignment thereof, and belonging to the defend- ant in good faith before notice of the assignment, must be allowed as a counterclaim to the amount of the plaintiff's demand, if it might have been so allowed against the party or the assignee while the contract belonged to him. 2. If the action is upon a negotiable promissory note or bill of exchange, which has been assigned to the plaintiff after it became due, a demand, existing against a person who assigned or transferred it after it became due must be allowed as a counterclaim to the amount of the plaintiff's demand, if it might have been so allowed against the assignor, while the note or bill belonged to him. 3. If the plaintiff is a trustee for another or if the action is in the name of a plaintiff, who has no actual interest in the contract upon which it is founded, a demand against the plaintiff shall not be allowed as a counter- claim ; but so much of a demand existing against the person whom he repre- sents, or for whose benefit the action isi brought, as will satisfy the plain- tiff's demand must be allowed as a counterclaim, if it might have been so allowed in an action brought by the person beneficially interested. 300. CIVIL LAW ANB PRACTICE. 4. The court must liave jurisdiction of a cause of action founded on the- counterclaim. (Just. Ct Act, § 139.) In an action against an executor or an administrator, or other person sued in a representative capacity, the defendant may set forth as a counter- claim a demand belonging to the decedent, or other person whom he repre- sents, where the person so represented would have been entitled to set forth the same in an action against him. (Just Ct. Act, § 142.) In an action brought by an executor or administrator in his representa- tive capacity, a demand against the decedent, belonging at the time of his death to the defendant, may be set forth by the defendant as a counter- claim as if the action had been brought by the decedent in his lifetime; and, if a balance is found to be due to the defendant, judgment must be rendered therefor against the plaintiff in his representative capacity. Execution can be issued upon such a judgment only in a case where it could be issued upon a judgment in an action against the executor or administrator. (Just. Ct. Act, § 143.) § 13. Consequence of neglect to plead counterclaim. Section 140 of the Justice Court Act, as qualified by section 141 of that act, specifies the cases in which the neglect of the defendant to plead a counterclaim, in an action to recover damages upon or for a breach of contract, will forever thereafter preclude him, and every person deriving title thereto through or from, him, •from maintaining an action to recover damages for a like cause which might have been allowed to him upon the trial of the action. The application of this section is limited to " actions to recover damages upon or for a breach of contract." (Clift v. Mercer, ' 19 App. Div. 369, Y9 IST. Y. Supp. 622; Davis v. AiMn, 85 Hun, 554, 33 ]Sr. Y. Supp. 103.) Where judgment is taken by default upon a promis- sory note, and, it appears that services rendered by the defendant should have been applied upon the note, and that the value of the services were in dispute,' the defendant may maintain an action to recover the value of his services notwithstanding his neglect to appear in the action upon the note and to plead his counterclaim. (White v. Curtis, 40 Misc. 50, 98 N. Y. Supp. 319.) A failure to properly plead as a counterclaim a cause of action which the defendant has against the plaintiff may be clearly prejudicial to the defendant in the pending action whether he would be barred from main- taining another independent action thereon or otherwise. It is generally, advisable when practicable to settle all differences between parties in a single action; and it is always important in framing an answer to care-; PKOCEDUKE LN" ACTIONS GENERALLY. 301 fully distinguisli between what is properly a matter of defense to the plaintiff's action and what is a matter properly to be presented by way of connterclaim. When a defendant has an election to set up a cross claim of any kind to diminish or overcome the claim of the plaintiff, or to bring an inde- pendent action thereon, it necessarily follows that such claim, if asserted, must be set up as a counterclaim in the action, whether it constitutes what was formerly denominated a recoupment, or it is any other claim coming within the Code definition of a counterclaim. The right to recoup, as known under the old practice, means simply the right to plead a counter- claim under the Code. If a counterclaim is relied upon, it must be alleged in the answer and not left to inference. Recoupment in an action upon contract always implies that the plaintiff has a cause of action, but the defendant alleges that he, too, has a cause of action growing out of the breach of some other part of the contract upon which the action is founded, or f'or some other cause connected with the contract, and it is in the nature of a cross action. The failure of the plaintiff to strictly perform his con- tract may give to the defendant a right to recoup the damages resulting from such failure, if pleaded as a counterclaim, although the same matter would, under the circumstances of the case, be unavailing if pleaded as a defense. A defendant by omitting to assert a claim to recoup or counter- claim his damages in his answer, must be presumed to have elected not to allow such damages in reduction or extinguishment of the plaintiff's claim. (Deeves <& Son v. Manhattan Life Ins. Co., 195 N. Y. 324.) § 14. Answer of title. Where a written answer, signed by the defendant, his attorney or agent, setting forth facts showing that the title to real property will come in question, is delivered to the justice (see Form No. 34), with the iinder- taking required by section 173 of the Justice Court Act (see Form No. 35), the justice must thereupon countersign the answer, and deliver it to the plaintiff. (Just. Ct. Act, § 172.) This discontinues the action and each party must pay his own costs. (Just. Ct. Act, § 175.) If such undertaking is not delivered to the justice he wiU proceed with the trial, and the defendant will be precluded in his defense from drawing the title in question. (Just. Ct. Act, § 176 ; Steenlurgh v. McRorie, 60 Misc. 510, 113 N. Y. Supp. 1118.) But if it appears upon the trial from the plain- tiff's own showing, that the title to real property is in question, and the title is disputed by the defendant, the justice must dismiss the complaint 302 CIVIL LAW. AND PEACTICE. with costs, and render judgment against the plaintiff accordingly. ( Just. Ct. Act, § 177; Lane v. Young, 66 Hun, 563; 21 N. Y. Supp. 838.) If the complaint sets up two or more causes of action, the defendant may interpose this defense to one or more, and deliver the answer and undertaking with respect to such causes, in which case the justice will discontinue the action as to such causes, and proceed with the action as to the others. (Just. Ct. Act, § 179.) The answer of title to land may be interposed- upon an adjourned day by way of amendment to the original answer, with the same effect, if the proper undertaking is also delivered to the justice, as where interposed at the time of joining issue. {Barnard v. Clark, 33 Misc. 330, 68 N". Y. Supp. 624.) A plea of title means an unequivocal assertion by the defendant of title to the premises of some part thereof, and not a mere denial of the plaintiff's ownership. (People ex rel. Hill v. Kelsey, 82 Misc. 491, 144 N. Y. Supp. 135.) To oust the justice of jurisdiction, the plea of title must state the " facts " showing that a question of title is involved. {Rose v. Purcell, 64 Misc. 674, 120 E". Y. Supp. 860.) In a summary proceeding to recover premises, the question of title does not arise. In such a pro- ceeding, the issue is whether the relation of landlord and tenant exists. {People ex rel. Hill v. Kelsey, 82 Misc. 491, 144 IST. Y. Supp. 135.) Where the pleadings do not show that the title to real estate is in issue, the mere statement of the defendant that he disputes the title of the plaintiff, where the defendant has not filed the required answer and undertaking, does not disturb the jurisdiction of the justice. {Doughty v. Kingsley, 69 Misc. 142, 126 N. Y. Supp. 285.) § 15. Verified pleadings. The features peculiar to a verified complaint in an action pending in a justice's court are that the authorized use of such pleading is limited tp an action arising on contract for the recovery of money only, or on aii account ; that the complaint is served with the summons instead of being interposed on the joinder of issue; that it is required to be in writing; that it must be verified ; and that in case the defendant fails on the return day of the summons to interpose a written verified answer to the complaint he will be deemed to have admitted its allegations as true, and upon the filing of the summons and complaint and due proof of service, the justice must enter judgment for the, plaintiff and against the defendant for the ajjiount demanded in the complaint, with costs, without further proof. (Just. Ct. Act, §§ 150, 151, 152, 153, 154, 155, 259.) A demurrer to the complaint PKOCEDUEE IN" ACTIONS GENEKALLY. 303 by the defendant's attorney will not operate as an admission of service of the complaint so as to authorize judgment by default without common law proof. (International Seed Co. v. Hartmann, 65 App. Div. 478, 72 N. Y. Supp. 943.) The statute applies only to actions arising on contract for money only or on an account, and not to an action for the wrongful killing of a dog. (ColUnson v. Wier, 91 Misc. 501, 154 IST. Y. Supp. 951.) If the verification is not sufficient, the justice cannot enter judg- ment for the plaintiff without proof of his claim. {Emhalmers Supply Co. V. Bowe, 101 Misc. 717, 166 N. Y. Supp. 1045.) The affidavit of verification must be to the effect that the pleading is true to the knowledge of the deponent except as to the matters therein stated to be alleged on information and belief, and as to those matters he believes it to be true. And where it is made by a person other than the party he must set forth in the affidavit, the grounds of his belief, as to all matters not stated upon his knowledge, and the reason why it is not made by the party (Just. Ct. Act, § 154), and should show that the information stated as to the grounds of belief was derived from some person who had knowl- edge of the facts. (Nelson v. Baruch, 60 Misc. 357, 113 IST. Y. Supp. 449.) The answer to a verified complaint must also be in writing and verified in the same manner as the complaint. (Just. Ct. Act, § 151.) If the defendant files an unverified answer to a verified complaint, the plaintiff is' entitled to judgment without further proof. {Carter v. Boyle, 57 Misc. 564, 109 ISr. Y. Supp. 1102.) A verified complaint or a verified answer may be demurred to upon the same grounds and in the same manner as an unverified pleading. The fact that the defendant appears on the return day, and the plaintiff does not appear, does not affect the right of the plaintiff to judgment upon his verified complaint and proof of service, filed with the justice, where the defendant does not file a verified answer. (Lent v. Moyer, 45 Misc. 139; 91 N. Y. Supp. 975.) A plaintiff appearing by attorney is entitled to judgment on default of the defendant regardless of whether the appear- ance is authorized. (Pitts v. Francis, 163 App. Div. 787, 149 K Y. Supp. 271.) If the affidavit of verification to the complaint contains no venue, the verification is a nullity, the defendant has the right to file an unverified answer, and the plaintiff must prove his case in order to recover. (Ameri- can Booh Co. V. Watson, 24 Misc. 524. And see Robinson v. Cooper, 62 Misc. 517.) 304 CIVIL LAW AND PKACTICE. § 16. Amendment of pleadings. A justice of the peace has not only the power but it is his duty to allow an amendment of a pleading before trial or on the trial if substantial justice will be promoted by the amendment. (Just. Ct. Act, § 157; Walsh V. Cornett, 17 Hun, 27; Wood v. Shultis, 4 Hun, 309.) And even though it may involve a new cause of action or a new defense (Hawkes v. Burke, 34 Misc. 189), or change the action from contract to tort. (Oncy T. Pamfrey, 54 Misc. 171.) § 17. Adjournments. The necessity for the adjournment of a trial may appear at the time of the return of the summons, or at a subsequent stage of the action. It may arise from the fact that on the return day the justice is engaged in the trial of another action or proceeding, or is otherwise unable to proceed with the trial; or it may arise from the fact of the absence of some material witness for a party on that or a subsequent day without whose testimony such party cannot safely proceed to trial. So where, upon a trial a warrant of attachment is issued to compel the attendance of a witness who has failed to appear in obedience to a subpoena, the justice may, in his discretion, adjourn the trial for such time as he deems neces- sary for the return of the warrant, not exceeding five days. (Just. Ct. Act, § 188 ; Fish's Eddy Chemical Co. v. Stevens, 92 Hun, 179, 36 N. Y. Supp. 397.) An adjournment may also be granted where a commission is issued upon the application of, the plaintiff for the examination of a witness (Just. Ct. Act, § 205), or where an adjournment is rendered necessary by an amendment of the pleadings (Just. Ct. Act, § 157), or where a venire is issued (Just, Ct. Act, § 225), or where a witness for a party attending before the justice is committed to jail for refusal to be sworn, or to answer a pertinent and proper question, or to produce a book or paper (Just. Ct. Act, § 251), or where an attachment is issued against defaulting jurors. (Just. Ct. Act, § 232.) The justice may adjourn a trial upon his own motion at the time of the return of the summons, unless the defendant has been arrested (Just. Ct. Act, § 180), but cannot so adjourn the trial before issue joined unless the parties otherwise agree, or the defendant neglects to plead. {Duel v. Sykes, 59 Hun, 117, 13 IST. Y. Supp. 166.) He is not authorized .by section 180 to grant a second adjournment on his own motion. {Matter of McKinney, 16 App. Div. 63, 44 K Y. Supp. 1097.) He may hold a case open a reasonable time for the appearance of a party who he knows will PEOCEDUEE IN" ACTIONS. GENEEALLY. 305 appear, but a six-hour indulgence of this nature is not reasonable. (Blowers v. Malone, 75 Misc. 396, 135 N. Y. Supp. 535.) The justice may adjourn the trial of an action, at the time of the return of the summons, upon the application of the plaintiff, to enable him to obtain some material testimony or witness. (Just. Ct. Act, § 181.) The plaintiff is not entitled as a matter of right to an adjournment on the return of the summons or of the joinder of issue unless he makes oath, when required by the defendant, that he cannot for the want of some material testimony or witness specified by him, safely proceed to trial. An adjournment may also be had on the application of the plaintiff where the defendant has been allowed to amend his answer after joinder of issue, or has pleaded over after the overruling of a demurrer to the complaint, and the plaintiff has made it to appear to the satisfaction of the justice, by oath, that an adjournment is necessary in consequence of the amendment or pleading over. (Just. Ct. Act, § 157.) So where a com- mission is granted on the application of the plaintiff, he is entitled to one or more adjournments of the trial as may be necessary to procure the commission to be executed and returned, not exceeding the length of time for which the trial might be adjourned upon the application of the defendant. (Just. Ct. Act, § 205.) Under section 181 an adjournment can be granted at the plaintiff's request only upon the return day of the summons or the time when the parties voluntarily appear and join issus {Moody v. Becker, 70 N. Y. Supp. 543; Moore v. Taylor, 88 App. Div. 4; Stoutenberg v. Humphrey, 9 App. Div. 27 ; and see Wright v. Shepherd, 44 Misc. 454, 90 N. Y. Supp. 154; Burhanhs Hardware Co. v. Henkel, 78 N. Y. Supp. 365; Newman, v. Woodcock, 16 Misc. 12, 38 NT. Y, Supp. 957), and except as above noted, a plaintiff is entitled to but one adjournment on his own application, unless by consent of the defendant. (Aherhall v. Roach, 11 How. 95; Bedford v. Snow, 46 Hun, 370; Crisp v. Bice, 83 Hun, 465; Morris v. Hays, 14 App. Div. 8, 43 IST. Y. Supp. 930.) A defendant is not supposed to know what cause of action he will be called upon to defend until the plaintiff has presented his complaint, and that consequently he may be wholly without the testimony or witnesses necessary to his defense. It is, therefore, made obligatory upon the justice to grant the defendant's application for an adjournment made at the joinder of issue upon complying with the requirements of section 182, by showing by his oath, or that of his attorney, that he verily believes that the defendant has a good defense to the action, and that he cannot safely pro- ceed to trial for want of some material testimony or witness specified by 20 306 CIVIL LAW AND PKACTICE. him, and also by giving an undertaking of the character and effect speci- fied in section 183. (For the form of an affidavit on the application for an adjournment see Form No. 38.; and for form of the undertaking re- quired either under section 183 or section 184, see Forms Nos. 33 and 37.) The adjournment granted to a defendant under section 182 is not limited to eight days, but may be for such time as the justice deems reasonable. {MolinsU v. Burnett, 152 App. Div. 428, 137 N. Y. Supp. 259.) A defendant is not entitled to an adjournment where he does not make the affidavit required by section 182, but merely presents a doctor's certificate that he is ill and cannot attend. (Sloan v. Dickey, 68 Misc. 593, 124 N. Y. Supp. 609.) The defendant is entitled to an adjournment at the time of joining issue without first making oath or filing security if neither are required by the plaintiff or the justice. But if the plaintiff opposes the adjournment and insists that the defendant shall make the proof and give the undertaking which the statute requires in such case, the granting of such adjournment without such proof and security will be a fatal error. {Peck v. Andrews, 32 Barb. 445.) A second or subsequent adjournment on the application of the defend- ant may be granted as provided in section 186 of the Justice Court Act upon his compliance with the requirements therein prescribed as to proof of necessity and the furnishing of security. The justice has no power to adjourn the trial on the application of the defendant, based upon the failure of the plaintiff to serve and file a bill of particulars. {Smith v. Denton, 119 App. Div. 49, 103 N". Y. Supp. 882.) In a case involving the good faith of the party making the application the granting or refus- ing it rests in the sound discretion of the justice. {BiLsh v. Weeks, 24 Hun, 545.) When it is made to appear to the satisfaction of the justice that the presence of the defendant is actually needed at home by reason of t'rie dangerous illness of a member of his family, an adjournment should be granted. {Rost v. Stuyvestant, 8 Johns. 426.) An adjournment follows as a matter of statutory direction, without special application by either party, where a warrant of attachment is issued to compel the attendance of a witness (Just. Ct. Act, § 188), or where a venire is issued (Id., § 225), or where an attachment is issued against defaulting jurors. (Id., § 232.) It is often said that a justice loses jurisdiction of a cause by an unauthorized adjournment, and that the case is out of court. The state- ment is not technically true. While the unauthorized adjournment may be PEOCEDUKE m ACTIONS GENEEALLY. 307 a legal error which will render valueless all subsequent proceedings when the matter is brought before an appellate court on an appeal, such sub- sequent proceedings are not without jurisdiction, and the erroneous adjournment has no more effect on the jurisdiction of the justice than any other error committed on the trial which is a ground for reversal on appeal. A judgment rendered after the erroneous adjournment is not void, but merely voidable, and the justice in issuing execution thereon will not be liable as a trespasser, (Horton v. Auchmoody, 1 Wend. 200 ; Hard v. Sliipman, 6 Barb. 621 ; Handshaw v. Arthur, 9 App. Div. 175, 41 ]Sr. Y. Supp. 61, 161 K Y. 664.) The Justice Court Act also specifies the cases in which the justice may impose conditions upon granting the defendant's application for an adjournment (§ 187), and fixes a limit to the time beyond which the trial of a cause cannot be deferred by adjournments. (§ 189.) § 18. Compelling attendance of witnesses. On request of a party the justice will issue a subpoena as provided in section 190 of the Justice Court Act. If only the presence and testimony of the witness is desired, the subpoena will be in the ordinary form. (See Form No. 39.) If it is desired that the witness shall bring with hinj any book or paper, a subpoena duces tecum as it is called should be issued. (See Form No. 40.) If the witness is required to produce upon the trial a book of account, he may be compelled to do so either by a subpoena duces tecum or by an order requiring him to produce it. . (Just. Ct. Act, § 201.) In case of a subpoena, unlike any other mandate issued by a justice of the peace, a blank may be left, in which the party may insert the name of any or all of the witnesses. (See Just: Ct. Act, § 464.) The subpoena may be served by the constable or any other person. The manner in which service is made is pointed out in section 191. Proof of service should be made by the constable or person who made the service. (See Form No. 41.) If a witness who has been duly subpoenaed fails to attend at the trial, and his testimony is material, the party in whose behalf the witness was subpoenaed, or his attorney, should make proof of these facts (see Form No. 42), and the justice should issue a warrant of attachment, directed generally to any constable of the county, 'for the purpose of compelling the attendance of the witness. (Just. Ct. Act, § 192. For form of warrant see Form No. 43.) The warrant of attachment will be executed as directed in section 193 or section 194 of the Justice Court Act, and the witness brought before the justice. Pending the return of the warrant the ,308 CIVIL LAW AND PEACTICE. justice will adjourn the trial for such time as he deems necessary for the return, not exceeding five days. (Just. Ct. Act, § 188.) On the adjourned day, when the witness is present in court, and has an opportunity to be heard, the justice will proceed summarily to impose a fine upon the wit- ness, unless a reasonable excuse is shown for the default. (Just. Ct. Act, § 196.) The justice will then enter in his docket-book a minute of the conviction (Just. Ct. Act, § 197; Form No. 44), and, unless the whole amount of the fine and costs are forthwith paid to him, will issue an execution as provided in section 198. (See Form No. 45.) § 19. When case triable without jury. An action in a justice's court is tried by the justice, without a jury, where an issue of fact has been joined and neither party has demanded a jury trial at the time of joining issue, or, where such demand has been made by a party, and the party has failed to deposit with the justice the statutory fees for the attendance of each person to be summoned, and for the jurors to serve upon the trial, and also the fees to which the constable is entitled for notifying the persons to be drawn as jurors (Just. Ct. Act, §§ 217, 224, 226; Martin v. Borden, 123 App. Div. 66, 107 N. Y. Supp, 725), or where the fees of the justice for issuing the venire' have been demanded by him under section 331 of the Justice Court Act and have not been paid. {Judson v. Havely, 59 N. Y. Supp. 1018.) So the justice may properly try the case where a jury demanded by the defendant has been waived by him in open court (Hosford v. Carter, 10 Abb. 452), or where he has waived the jury by neglecting to appear on the adjourned day. (Kilpatrick v. Carr, 3 Abb. 117; Helmick v. Churchill, 92 Hun, 524, 36 N. Y. Supp. 1028.) In the latter case, although a jury is in attendance, the justice may dismiss them and proceed to try the case himself. (Id.) Where the defendant makes default in appearing or pleading upon the return of a summons not served with a verified complaint, the justice must hear the allegations and proof of the plaintiff and render judgment according to law and equity as the very right of the case appears. (Just. Ct. Act, § 216.) It is an ancient rule that default of appearance by the defendant, or an appearance and refusal to plead, is not an admission of the plaintiff's demand; he must establish it by testimony or other legal proof the same as if issue had been joined. (Northrup v. Jackson, 13 Wend. 84; Blair v. Bartlett, 75 N. Y. 150; McDonald v. Nuse, 12 Misc. 507, 33 N. Y. Supp. 661.) The procedure is the same where an issue of fact has been joined anl neither party has demanded a trial by jury. (Just. Ct. Act, § 217.) PROCEDUEE IN ACTIONS GENEEALLY. 309 Either party may demand a trial by jury at the time when an issue of fact is joined, and unless so demanded at the joining of issue a jury trial is waived. (Just. Ct. Act, § 224.) But where the plaintiff on the return day of the summons made an oral complaint for a cause of action on con- tract, to which the defendant interposed a general denial, and on the day to which the case was adjourned, against the objection of the defendant, procured an amendment of his complaint changing the cause of action to a tort, it was held that the defendant was still entitled to demand a jury trial of this new issue. {Beese v. Baum, 83 App. Div. 550, 82 N. Y. Supp. 157.) § 20. Selection of jury. When a trial by jury has been duly demanded the justice should pro- ceed to draw twelve ballots from the box containing the names of jurors (Just. Ct. Act, § 225), and should insert the names of the jurors so drawn in a venire and deliver, or cause it to be delivered to a constable of the county disinterested between the parties. (Just. Ct. Act, § 227. For the form of a venire see Form No. 47.) The justice should then adjourn the court to a day specified. (Just. Ct. Act, § 225.) If the parties so stipulate, the drawing of the jury can be done at a later date. (Hallett v. Boyer, 114 N. Y. Supp. 559.) The constable should serve the venire and make his return as directed by section 228 of the Justice Court Act. (See Form No. 48.) Upon the day to which the trial was adjourned, ballots containing the names of the persons, returned, who attend, should be prepared as directed in section 230, deposited in a box, and drawn therefrom, one after the other, until six ballots have been drawn. If a person whose name is drawn is challenged and set aside, or is excused, another ballot must be drawn, and so on successively until the required number of jurors is obtained. (Just. Ct. Act, § 231.) In case a jury cannot be obtained from the per- sons notified and in attendance, the justice should proceed as directed in Sections 223 and 234 until a jury is obtained. The justice may excuse any juror who comes within the provisions of section 544 of the Judiciary Law (Just. Ct. Act,.§ 225), which is as follows : " Upon satisfactory proof of the facts, a court, at the term to which a person is returned as a trial juror, must excuse him from serving during the whole, or a portion of the term, in either of the following cases : 1. When he is a justice of the peace, or executes any other civil office, the duties of which are, at the time, inconsistent with his attendance as a juror. 310 CIVIL LAW AND PKACTICE. 2. Where he is a teacher in a sehool, actually employed and serving as such. 3. Where, for any other reason, the interests of the public, or of the juror, will be materially injured by his attendance; or his own health or the health of a member of his family, requires his absence; or he is- temporarily incapacitated, for any reason, from properly discharging the duties of a juror. When a person is excused, in either of the cases specified in this section, the ballot, containing his name, inust be returned to the box from which it was taken." Each party may peremptorily challenge not more than three of the persons drawn as jurors for the trial. (Just. Ct. Act, § 235.) § 21. The trial and its incidents. After the selection of the jury, the justice must swear them as directed by section 240 of the Justice Court Act. (See Form No. 52.) A failure to swear the jury is a fatal error. {Fulton v. Yuill, 24 Misc. 285, 53 N". Y. Supp. 707.) But the objection that the jury was not sworn cannot be raised for the first time upon appeal, for the parties waive the irregu- larity if they proceed to trial without objection. {Becker v. Becker, 92 Misc. 382, 156 K Y. Supp. 995.) The party who has the affirmative of the issues to be tried is entitled to open the case to the jury; to introduce his evidence first; to introduce his evidence in reply to the evidence introduced by the adverse party; and to sum up the cause last to the jury. The opening by a party is a state- ment of his cause of action or his defense and the evidence he expects to give to sustain it. After opening the case, the party holding the affirmative proceeds to introduce his record evidence, if any, or to call his witnesses. If no objection is made to the competency of the witnesses, or if an objec- tion is made and overruled, the witnesses are sworn in the order in which the party calling them deems most likely to intelligently present the facts of his case. The form of the witnesses' oath is prescribed by section 242. (See Form JSTo. 54.) After the party has introduced all the evidence he has in support of his case, he rests. The adverse party, if it be the defendant, may then move for a nonsuit, if he deems that the evidence presented by the plaintiff does not establish his cause of action. If no nonsuit is demanded, or is demanded and denied, the party not having the affirmative then opens his case, calls his witnesses, and rests. The party having the affirmative then introduces his rebutting evidence, if he has any and rests. If a motion for nonsuit on all the evidence is not PROCEDURE IN ACTIONS GENERALLY. 31l then made or renewed, the party not having the affirmative of the issue snms up, and the party having the affirmative follows. If no jury is in attendance, the case is then submitted to the justice for decision and judgment. If a jury is in attendance, the justice may charge the jury, or he may decline to do so. It is- a matter of discretion with him, but he charges the jury at the peril of doing so correctly. He cannot direct the jury to return a certain verdict. (Marsh v. Richer, 68 Misc. 587, 125 N. T. Supp. 245.) Some of the more important of the general rules of evidence have been given in the preceding chapter. The manner in which evidence is intro- duced can. be but briefly noticed.. The party who calls a witness examines him as to the matters upon which the testimony of the witness is desired. This is called the direct examination. The adverse party then has a legal right to further interrogate the witness as to the matters testified to on the direct examination. This is called the cross-examination. The party calling the witness may then by proper inquiries of the witness obtain an explanation, qualification or amplification of the matters testified to on cross-examination. This is known as the redirect examination. The justice in his minutes of the testimony should note whether the evidence taken down was given by the witness upon his direct, cross, or redirect examination. More latitude is allowed on cross-examination than on the direct, and a ruling which would be erroneous in one case might be proper in the other. So testimony drawn out on cross-examination as to matters not inquired about on the direct, may make the testimony of the witness binding upon the party conducting the cross-examination, and make the witness, as to such matters, in effect, his witness. § 22. Decision and judgment. After hearing the allegations and the proofs, the jury must be kept together in a private and convenient place, under the charge of a constable, until they all agree upon their verdict. Before they retire to consider their verdict, the constable in charge must be sworn by the justice as provided in section 255 of the Civil Practice Act. (See Form No. 53.) No instruc- tions can be given to the jury after they retire to the jury room, unless by consent of the parties.- No communication between the justice and the jury can be had in the absence of the parties or their attorneys without their consent, and a violation of this rule furnishes ground for tlie reversal of the judgment though the communication was harmless. (Robinson v. Woodard, 88 Misc. 116, 151 N. Y. Supp. 655; Hudson v. Steams, 75 N. Y. Supp. n?,;8eeley v. Bisgrove, 83 Hun, 293, 31 N. Y. Supp, 914; 312 CIVIL LAW ANT> PKACTICE. Valentine v. Kelley, 54 Hun, 18; High v. CMch, 81 Hun, 100; Ahhott V. Iloclienberger, 31 Misc. 587.) When the jurors have agreed upon their verdict they must publicly deliver it to the justice who must enter it upon his docket-hook. (Just. Ct. Act, § 256.) If the jury cannot agree upoi^ a verdict, after having been out a reasonable time, the justice may dis- charge them and issue a new venire, without any new demand being made for a jury trial (Hartman v. Hoffman, 65 App. Div. 443, 72 E". Y. Supp. 982), unless the parties consent that the justice render judgment upon i\6 evidence already before him, in which case he may enter judgment accordingly. (Just. Ct. Act, § 258.) The Justice Court Act prescribes the case in which a judgment of non- suit must be rendered (§ 268) ; the general requisites of a judgment upon a verdict or upon the decision of the justice upon a trial without a jury (§ 269), and the time when a judgment must be rendered. (§270.) The time within which a justice must render judgment is limited to four days after ths case is submitted to him, and a judgment rendered after that time is illegal and void. (Gillingham v. Jenkins, 40 Hun, 594.) The same rule applies in summary proceedings. {People ex rel. White V. Loomis, 27 Hun, 328.) , Merely entering the verdict in the docket, and putting down the items of cost and adding them up with the verdict, and thus ascertaining ths sum .total, and nothing more, is not rendering a judgment on such verdict. Judgment must be rendered, and entered in some way as a judicial act< The decision must be evidenced by some official act. A decision in the mind of the justice, unless it is entered in the docket, or in the minutes ,of the trial, is of no avail whatever. It is not a legal rendering of judg- ment, and will not constitute a judgment in law. (Stevens v. Santee, 51 Barb. 532.) In no case can a mere mental determination, evidenced by no outward act, be considered as a judicial act, and a mere mental opinion, not announced, is no determination. It is the formal announcement which is the judicial act. (Youmans v. Simmons, 7 Hun, 466.) It is improper for a justice of the peace to render judgment while the counsel of one of the parties is summing up the case. (Prentice v, Sprague, 1 Hilt. 428.) Where a justice fails to render judgment in an action tried before him within four days after its final submission, it does not render him liable in an action for damages at the suit of an individual. (Evarts v. Eiehl, 102 ]Sr. Y. 296.) The justice must enter judgment within four days after the cause is PEOCEDUEE m ACTION'S GENEEALLY. 313 submitted to him for final decision, but where a cause is submitted by counsel at the close of the evidence, with an agreement that within four days they will appear before him to sum up the case, it is in effect post- poned for a final hearing and the justice has a right to take four days from that time for the decision of the cause. "Where a justice rendered judgment within four days after the submis- sion, and entered the same upon his minutes of the trial, but omitting to entrring the judgment on his docket, his failure to so enter it does not vitiate the judgment, but the act of entering it in the docket may be validly performed at any time. (Fish v. Emerson, 44 N. Y. 376.) After a verdict has been received and entered in the docket by a justice, he has no further judicial power in regard to it except to determine the amount of the costs, and add them to the verdict. He must enter judg- ment upon the verdict on the day on which it is rendered; if he waits until the next day, he can render no judgment. After he has done so he is without jurisdiction or authority to alter or change the record in any respect. {Allen y. Swann, 6 Civ. Pro. E. 56.) But he may, under section 460 of the Justice Court Act, amend the judgment by inserting therein the true given name in parenthesis of the defendant. (Furanz v. Tramontano, 177 App. Eiv. 52, 163 K Y. Supp. 700.) The parties may by consent extend the time in which the justice may render his judgment. {Barnes v. Badger, 41 Barb. 98 ; Beardsley v. Pope, 88 Hun, 560, 34 K Y. Supp. 846.) Where a justice of the peace has decided an action upon the inerits and has entered judgment for the damages upon the last day of the statutory time given him for that purpose, a valid judgment has been rendered, and it is beyond his power to invalidate the judgment by subsequently adding costs to it. {Rich v. Marhham, 92 Hun, 78, 37 IST. Y. Supp. 602.) A justice has no authority to enter judgment on Sunday. His authority to act on that day is suspended. The language of the statute directing the justice to render the judgment forthwith is of the character considered in law to be directory, and not involving the validity of the act, if not done at the time directed. The statute so directing the justice must harmonize with the provision which forbids the transaction of any business in court on Sunday. The statute authorizes courts to be open for the purpose of receiving a verdict, and forbids the transaction of any other business on Sunday. And the verdict is valid by the statute although rendered on Sunday, but the justice cannot enter judgment thereon until Monday. The time intervening between the rendition of the verdict on Sunday, and the action by the justice in rendering judgment on the fol- 314 CIVIL LAW AND PEACTICE. f owing Monday, is to be regarded as a, period during which his authority is suspended, to be resumed and continued when holy time has expired. A judgment entered on Sunday is wholly void. (Allen v. Godfrey, 44 , :N^ T. 433.) When a justice has jurisdiction of the subject matter of the action and of the person of the defendant, his judgment cannot be attacked collaterally. \Eeno V. Finder, 20 N. Y. 298.) Unless the case is one specified in section 316 of the Justice Court Act, the justice, at the time of rendering judgment, should tax the costs of the prevailing party and include the same in, the judgment, (Just. Ct. Act, § 314.) He should also make a minute of the costs of the defeated party, as he may become entitled to be repaid the same on appeal from the judg- ment against him. (See Just. Ct. Act, § 457.) The Justice Court Act defines what is meant by the word "costs " (§ 314) ; limits the amount which may be awarded to the prevailing, party (§ 317) ; and the mode of taxation. (§ 321.) Section 1498 of the Civil Practice Act, prohibiting costs against municipal corporations in certain cases, does not apply to justices' courts. (Bradley v. Town of Union, 164 App. Div. 735, 150 N. Y. Supp. 112.) § 23. Minutes of trial and docket of justice. A justice should make full and accurate minutes of all proceedings ia the action before him, including the evidence given by the several wit- nesses, the, objections made by the parties to the evidence offered, and his rulings thereon. All these matters may be brought before an appellate court for review, and it is essential that the justice should have before him the means of making a full and correct return. A full record of the evi- dence given is also important in many cases in reaching a correct decision upon the merits of the case tried before him, where judgment is deferred for the statutory time, or where the case is not finally submitted by the parties for a considerable time after the evidence was given. The justice must also keep a docket-book and enter therein all that the statute requires. (See Just. Ct. Act, § 468.) § 24. Executions. The time within which a justice of the peace may issue an execution upon a judgment rendered by him is limited to five years, and the right to issue it is made dependent upon the fact that the justice is then in office,' and the judgment has not been docketed in the county clerk's office. (Just. Ct. Act, § 278.) If it has been docketed with a county clerk, the clerk will issue execution thereon (Id., § 272), as prescribed in section 279. PEOCEDUKE IN ACTIONS GENEKALLT. 315 A justice may renew an execution after the expiration of his term of office within five years after the rendering of the judgment. (Id., § 285.) But after the expiration of his office, he cannot issue an execution against the wages of the debtor under section 300. {Furanz v. Trwmontano, 177 App. Div. 52, 163 N. Y. Supp. 700.) The general requisites of an execution issued by a justice of the peace are stated in section 281 of the Justice Court Act (see Form 68) ; the requisites of an execution against the person in section 282 (see Form No. 69) ; and the requisites of an execution upon a judgment rendered in an action to recover a chattel in section 118. (Se& Form No. 70.) 'If the execution is issued upon a judgment rendered in an action to re- cover a penalty or forfeiture given by a statute of the State, it must be indorsed by the justice with a reference to the statute in the following form: "According to the provisions of," etc., adding such a description of the statute as will identify it with convenient certainty, and also speci- fying the section if penalties or forfeitures are given in different sections of the statute for different acts or omissions. (Just. Ct. Act, § 282.) If the judgment was rendered in an action in which a warrant of attachment was issued and not vacated, and property of the defendant was attached, but in which the defendant did not appear and was not personally served with the summons, the execution must require the constable to satisfy it out of the property so attached, without containing a direction to satisfy it out of any other property. (Just. Ct. Act, § 88 ; see Form No. 72.) If the judgment was rendered in an action against two or more persons jointly indebted upon contract, and the summons was served upon one or more of the defendants, but not upon all of them, an execution thereon must be issued, in form, against all the defendants, but the justice or county clerk must indorse thereupon a direction to the sheriff or constable, as the case may be, containing the name of each defendant who was not summoned and restricting the enforcement of the execution, as against the property of the person or persons so named, to its collection OTit of the personal property owned by such defendant jointly with the other defend- ants who were summoned, or with any of them. (Just. Ct. Act, §§ 338, 339 ; Hoffman v. Wight, 1 App. Div. 514, 516.) Thus, if judgment is rendered against two copartners on a copartnership obligation, and but one of the partners was served with the summons, the plaintiff may have exe- cution against the copartnership property and the individual property of the partner summoned, although not against the individual property of the copartner not summoned. (Latz v. Bluemerdhal, 50 Misc. 407, 100 N. Y. Supp. 527.) 316 CIVIL LAW AND PRACTICE. § 25. Levy and sale under execution. ' The constable to whom an execution is delivered should at once proceed to execute it according to its commands. He should levy upon and take into his custody sufficient personal property of the judgment debtor to satisfy the judgments together with his fees; indorse upon the execution the time of levying (see Form ISTo. 71) ; and immediately post conspicu- ously in three public places of the city or town in which the property was taken written or printed notices, signed by him, describing the property, and speciifying the place within the same city or town, and the time, not less than six days after the posting, when it will be exposed for sale. (Just. Ct. Act, § 288 ; Form No. 73.) He may or may not make an inventory of the property levied upon, although it is the common and better practice to do so. {Waits v. Cleveland, 3 E. D. Smith, 553.) On the day specified in the notice of sale, and between the hour of nine o'clock in the morning and sunset he should sell the property at public auction. (Just. Ct. Act, § 289.) He should not directly or indirectly purchase any of the prop- erty at the sale. (Id., § 292.) He should offer the property for sale in such lots and parcels as are calculated to bring the highest price, and the property should be present and in view of those attending the sale. (Id., § 298.) Having completed the sale, he should return the execution to th6 justice; pay over to him the amount of the judgment, with interest, or so much thereof as he has collected, and return the surplus if any to the per- son from whose property it was collected. (Id., § 299.) If the execution given him is against the person, he should proceed as directed in section 301. The levy, sale and return must be made within the sixty days from the date of the execution, unless it has been renewed (see § 285), and in that case, before the expiration of the time for which it was renewed. (Id., § 311.) A levy after return day makes him a trespasser. .(FaiJ v. Leiuis, 4 Johns. 450.) The renewal of an execution must be for sixty days. If for a less period it is void. (Vinne v. Houghtaling, 84 Hun, IGG, 32 E". Y. Supp. 450.) A constable whose term of office expires before the return day of thri execution must proceed as if his term had not expired (Just. Ct. Act, § 313), and a justice whose term of office has expired may renew an execution. (Id., § 285.) § 26. Property exempt from execution. Where the execution is issued to satisfy a judgment for money, h directs the constable to satisfy it out of the personal property of the judg- PEOCEDURE IJSr ACTIONS GENERALLY. 317 •ment debtor within the county, not exempt from levy and sale by virtue ■ of an execution. (Just. Ct. Act, § 282.) The same personal property is exempt from levy and sale by virtue of execution issued by a justice of the peace, which is exempt from levy and sale by virtue of an execution issued out of the Supreme Court in like ,cases and under the same circumstances, (Just. Ct. Act, § 287.) The following personal property when owned by a householder is I exempt from levy and sale by virtue of an execution, and each movable ..'iticle thereof continues to be so exempt while the family or any of them are removing from one residence to another: 1. All stoves kept for use in a dwelling house ; one sewing-machine, with its appurtenances. 2. The family Bible, family pictures, and school books, used by or in the family; and other books, not exceeding in value fifty dollars, kept and used as part of the family library. 3. A seat or pew, occupied by the judgment debtor or the family in a place of public worship. 4. Ten sheep, with their fleeces, and the yarn or cloth manufactured •therefrom ; one cow ; two swine ; the necessary food for those animals ; all -inecessary meat, fish, flour, groceries and vegetables, actually provided for family use ; and necessary fuel and oil for the use of the family for sixty days. 5. All wearing apparel, beds, bedspreads, and bedding, necessary for the judgment debtor and the family; all necessary cooking utensils ; one table; six chairs ; six knives ; six forks ; six spoons ; six plates ; six teacups ; six saucers; one sugar dish; one milk pot; one teapot; one coal scuttle; one shovel ; and one lamp. 6. The tools and implements of a mechanic, necessary to the carrying on of his trade, not exceeding in value one hundred dollars. In addition to the exemptions, allowed by the last section, necessary household furniture, working tools, team, professional instruments, furni- ture and library, not exceeding in value two hundred and fifty dollars, together with the necessary food for the team, for ninety days, are exempt from levy and sale by virtue of an execution, when owned by a person, being a householder, or having a family for which he provides, except where the execution is issued upon, a judgment recovered wholly upon one or more demands, either for work performed in the family as a domestic or for the purchase money of one or more articles, exempt as prescribed in this or the last section. (Civil Prac. Act, § 665.) 318 CIVIL LAW AND PKACTIOE. Where the judgment debtor is a woman, she is entitled to the same exemptions, from levy and sale by virtue of an execution, subject to the same exceptions, as prescribed in the last tvro sections, in the case of a householder. (Civ. Prac. Act, § 666.) The pay and bounty of a noncommissioned officer, musician or private in the military or naval service of the United States or the State of New York; a land warrant, pension or other reward heretofore or hereafter granted by the United States, or by a State, for military or naval services ; a sword, horse, medal, emblem or device of any kind presented as a testimonial for services rendered in the military or naval service of the United States or a State; and the uniform, arms and equipments which were used by a person in that service, are also exempt from levy and sale, by virtue of an execution, and from seizure of in any legal pro- ceeding. (Civ. Prac. Act, § 667.) No execution shall be levied upon articles, goods, wares, merchandise or property of any description while the same is en route to or from, or while on exhibition or deposited by exhibitors at any international ex- hibition held under the auspices or supervision of the United States, within any city or county of the State, nor shall such property be subject to levy or sale, for any cause whatever, in the hands of the authorities of such exhibition or otherwise. (Civ. Prac. Act, § 669.) A right of action to recover damages, or damages awarded by a judg- ment, for taking or injuring personal property, exempt by law from levy and sale, by virtue of an execution, are exempt, for one year after the collection thereof, from levy and sale, by virtue of an execution, and from seizure in any other legal proceeding. (Civ. Prac. Act, § 668.) Where the debtor claims an exemption from execution for certain, property, he must notify the officer of his claim before he can maintain an action for conversion of such property; the claim that property levied on is exempt from execution is a claim personal to the defendant in the execution, and he can only avail himself of the privilege. The exemption provided by the statute is not exclusively for the benefit of the owner of the property. It is intended mainly for the benefit of the family for which he provides. (Wilcox v. Howe, 59 Hun, 268 ; Wilcox v. Hawley, 31 N. Y. 648; Smith v. Hill, 22 Barb. 656.) The " team " which the exemption law exempts from sale on execution, when owned by any person being a householder or having a family for PROCEDURE IN ACTIONS GENERALLY. 319 which he provides, includes any number of animals composing the team, it may consist of one, two, three, four, or more. A team may be formed with either of these numbers, and whichever may compose it, if within the purview of the statute, and the limit as to value fixed by it, it will be exempt. (Wilcox v. Hawley, 31 K Y. 648 ; Gogsdill v. Brown, 5 Hun, 341.) A wagon may be a part of and embraced in the description of a team and if so, it is exempt. But it is for the party claiming the exemption to establish it by a preponderance of proof. (Brown v. Davis, 9 Hun, 43.) Potatoes planted for family use are exempt from execution before they are dug, just the same as when they are taken out of the ground and stored. (Carpenter v. Harrington, 25 Wend. 370.) Professional books necessary to a professional man, who provides for a family, or is the head of one are exempt. So are the surgical instruments of a surgeon. A watch when shown absolutely necessary to the debtor in certain cases may be exempt. A machine such as a threshing machine and horse power, or engine is not exempt from levy and sale on execution. (Ford V. Johnson, 34 Barb. 364; Bitting v. Vandenburgh, 17 How. 80; Robinson's Case, S Abb. 466.) A person having, and providing for a household, is a " householder," and the character is not lost by a temporary ceasing of housekeeping. The exemption was made for the benefit of the family, rather than its head, the debtor. Its object concerns a question of public policy. It is to keep together the wife and children, that the children may be trained and become useful members of society; to protect them against the dangers to which they would be exposed by being scattered, at a tender age, and to secure them the means of instruction and improvement. It does not mean simply a housekeeper, but also a " master or chief of a family." A man who is not a householder, and has no family for which he pro- vides wholly or partly, is not entitled to any exemption. (Fink v. Fraenkle, 39 St. Rep. 194, 14 IST. Y. Supp. 140.) The earnings of the judgment debtor for his personal services rendered within sixty days next before the institution of proceedings supplementary to execution, are exempt when it is made to appear by his oath or other- wise that those earnings are necessary for the use of a family, wholly or partly supported by his labor. (Civ. Prac. Act, § 777.) The necessary wearing apparel of every debtor is exempt from levy and sale on execution. (Bumpus v. Maynard, 36 Barb. 626.) To entitle a person to have his team exempted from levy and sale under execution, he need not have the sole right of property therein. If hft is only a part owner, in common with another, he is within the meaning 320 CIVIL LAW Al^D PEACTICE. and object of the statute, as much as if he owned the team alone. (Bad- cliff V. Wood, 25 Barb. 52.) When a judgment debtor has three horses, either two of which may constitute a team, and one of the horses is levied upon by a constable, by virtue of an execution, the debtor may at the time of the levy, or within a reasonable time after he has notice thereof, elect to claim such horse as exempt property. If he fails to make such election he cannot thereafter maintain an action for conversion thereof or replevin. {Seaman v. Luce, 23 Barb. 2i0 ; Brooks r. Hathaway, 8 Hun, 290.) The team of every teamster, and of every other man, when it is neces- sary to his use, is exempt although the owner may be worth thousands of dollars in money, or in other property. The exemption in the statute was not made to depend on the pecuniary ability of the debtor ; it is a benign and remedial statute, enacted for the benefit of families, from the highest motive of public policy, and it is the duty of courts to see to it that its humane provisions shall not be defeated by technicalities. (Smith v. Slade, 57 Barb. 637.) In an action to recover damages for the sale by an officer of exempt property, under an execution, it is sufficient for the plaintiff, on the trial, to show that the articles levied upon and sold, and claimed to be exeriipt, are enumerated in the statiite as exempt property, when necessary, and then show them to be necessary and within the limit as to value. Neither the statute, nor the rule of evidence, calls upon the plaintiff to prove what else he may own. Damages recovered in such an action would seem to be exempt from execution for a reasonable time at least. Certain exempt property is liable to seizure and sale on an execution issued to collect the purchase money of any article exempt under the statute. (Snyder v. Davis, 1 Hun, 350.) Moneys received from a pension and deposited in a bank in the name of the pensioner, is not subject to proceedings on the part of creditors to have them applied in payment of debts, although the relation between the depositor and the bank is that of creditor and debtor. The debt repre-sents the pension, and that is exempt under the statute. And when the receipts from a pension can be directly traced to the purchase of property necessary or convenient for the support and mainte- nance of the pensioner and his family, such property is exempt. But it seems that when pension moneys have been embarked in business and mingled with other funds so as to be incapable of identification or separa- tion, the pensioner loses the benefit of the exemption. (Yates County National Bank v. Carpenter, 119 N. Y. 550.) PROCEDUKE IN ACTIONS GENERALLY. 321 § 27. Garnishee of wages or income. Where a judgment has been recovered in a court not of record and where an execution issued upon said judgment has been returned wholly or partly unsatisfied, and where any wages, debts, earnings, salary, income from trust funds or profits are due and owing to the judgment debtor or shall thereafter become due and owing to him, to the amount of twelve dollars or more per week, the judgment creditor may apply to a judge or justice of such court without notice to the judgment debtor, and upon satisfactory proof of such facts by affidavits or otherwise, the judge or justice must grant an order directing that an execution issue against the wages, debts, earnings, salary, income from trust funds or profits of said judgment debtor, and on presentation of such execution by the officer to whom delivered for collection to the person or persons from whom such wages, debts, earnings, salary, income from trust funds or profits are due anJ owing, or may thereafter become due and owing to the judgment debtor, said execution shall become a lien and a continuing levy upon the wages, earnings, debts, salary, incopae from trust funds or profits due or to become due to said judgment debtor to the amount specified therein which shall not exceed ten per centum thereof, and said levy shall be a continu- ing levy until said execution and the expenses thereof are fully satisfied and paid or until modified as hereinafter provided, but only one such execution against the wages, debts, earnings, salary, income from trust funds or profits of said judgment debtor shall be satisfied at one time and where more than one such execution has been issued or shall be issued pursuant to the provisions of this section or of any other law against the same judgment debtor, they shall be satisfied in the order of priority in which such executions are presented to the person or persons from whom such wages, debts, earnings, salary, income from trust funds or profits are due and owing. It shall be the duty of any person or corporation, municipal or other- wise, to whom said execution shall be presented, and who shall at such time be indebted to the judgment debtor named in such execution, or who shall become indebted to such judgment debtor in the future, and while said execution shall remain a lien upon said indebtedness, to pay over to the officer presenting the same such amount of such indebtedness as such execution shall prescribe until said execution shall be wholly satisfied, and such payment shall be a bar to any action therefor by any such judgment debtor. If such person or corporation, municipal or otherwise, to whom said execution shall be presented shall fail, or refuse to pay over to said officer 21 322 CIVIL LAW AND PKACTICE. presenting said execution, the percentage of said indebtedness, he shall be liable to an action therefor by the judgment creditor named in siich exe- cution, and the amount so recovered by such judgment creditor shall be applied towards the payment of said execution. Either party may apply at any time to the judge or justice issuing the same, or to the county judge of the county, and in any county where there is no county judge, to any justice of the city court upon such notice to the other party as such court, judge, or justice shall direct for a modification of said execution, and upon such hearing the said court, judge or justice may make such modification of said execution as shall be deemed just, and such execution as so modi- fied shall continue in full force and effect until fully paid and satisfied, or until further modified as herein provided. This section, so far as it relates to wages and salary, due and owing or to become due and owing to the judgment debtor, shall not apply to judg- ments recovered more than ten years prior to September first, nineteen hundred and eight, nor to judgments heretofore or hereafter recovered upon such judgments. !N'o execution under this section shall be hereafter issued iipon a judg- ment against an officer or employee of any city or any county of the state or of the board of education of any such city, unless it shall contain the name of the judgment debtor, in full, his title or position, and the bureau, office, department or subdivision thereof in which he is employed; and if a person so employed shall resign or be dismissed while an execution issued pursuant to the provisions of this section is wholly or partly unsatisfied, and he be reinstated or re-employed, such execution shall lapse and no further deduction shall be made thereon unless such reinstatement or re-employment occur within ninety days after such resignation or dis- missal. All executions filed in any department against the wages, debts, earnings and salary of officers or employees of any city or of any coimty of the state, or of the board of education of any such city within five days prior to the date on which payment of wages, debts, earnings and salary are paid shall not become a lien against the wages, debts, earnings and salary that are payable on the said payroll but shall become a lien upon the wages, debts, earnings and salary which shall become due or owing to the judg- ment debtor thereafter. (Just. Ct. Act, § 300.) FOKECLOSUEE OF MECHANIC'S LIENS. 323 CHAPTER XV. FOEECLOSTJEE OF MECHANIC'S LIENS. Section. 1. In general. 2. Action of court not of record. 3. Appeals. 4. Transcript of judgment. 5. Costs and disbursements. 6. Judgment in case of failure to establish lien. 7. Offer to pay money into court, or to deposit securities, in discharge of lien. 8. Preference over contractors. 9. Judgment may direct delivery of property in lieu of money. 10. Judgment in action to foreclose lien on account of public improvement. 11. Judgment in action to foreclose lien on railroad property. § 1. In general. In, the preceding chapter an attempt has been made to present in outline the commencement, trial and final disposition of an ordinary action in a justice's court. The subject of the present chapter will be the procedure in an action brought in. a justice's court or other court not of record (see § 3 of Judiciary Law), for the enforcement of a lien on real prop- erty. The procedure in this action, which is to some extent special and statutory, is set forth in article 3 of the Lien Law. (See B. C. & G. Con- solidated Laws.) The following is the construction of that article as defined by section 40 of that act : " This article is to be construed in con- nection with article two of this chapter (chapter 33 of Consolidated Laws), and provides proceedings for the enforcement of liens for labor performed and materials furnished in the improvement of real property, created by virtue of such article." The provisions of article 2, above referred to, may be found, with con- siderable explanatory matter, in a preceding chapter of this volume. (See Chap. VIII.) In respect to jurisdiction of the action the statute provides that "A mechanic's lien on real property may be enforced against such property, and against a person liable for the debt upon which the lien is founded, by an action, by the lienor, his assignee or legal representative, in a court which has jurisdiction in an action founded on a contract for a sum of money equivalent to the amount of such debt" (Lien Law, § 41. See B. C. & C Consolidated Laws. See also, Eay on Mechanics' Liens, § 213.) It also provides that " a lien for labor done or materials furnished for a public improvement may be enforced against the funds of the- state or the 324 CIVIL LAW AND PEACTICE. municipal corporation for which such public improvement is constructed, to the extent prescribed in article two of this chapter, and against the' contractor or subcontractor liable for the debt, by a civil action, in the same court and in the same manner as a mechanic's lien on real property." (Lien Law, § 42. See B. C. & G. Consolidated Laws. See also, Eay on Mechanics' Liens, § 213.) This gives a justice's court jurisdiction where the debt which is the foundation of the lien does not exceed two hundred dollars. § 2. Action in court not of record. If an action to enforce a mechanic's lien against real property is brought in a court, not of record, it shall be commenced by the personal service upon the owner, anywhere within the state, of a summons and complaint verified in the same manner as a complaint in an action in a court of record. The complaint must set forth substantially the facts contained in the notice of lien, and the substance of the agreement under which the labor was per- formed or the materials were furnished. The form and contents cf the summons shall be the same as provided by the code of civil procedure for the commencement of an action upon a contract in such court. The sum- mons must be returnable not less than twelve nor more than twenty days after the date of the summons, or, if service is made by publication, after the day of the last publication of the summons. Service must be made at least eight days before the return day. (Lien Law, § 46. See B. C. & G. Consolidated Laws. See also, Eay on Mechanics' Liens, § 243.) If personal service of the summons cannot be made upon a defendant in an action in a court not of record, by reason of his absence from the state, or his concealment therein, such service may be made by leaving a copy thereof at his last place of residence and by publishing a copy of the summons once in each of three successive weeks in a newspaper in the city or county where the property is situated. (Lien Law, § 47. See B. C. & G. Consolidated Laws. See also, Eay on Mechanics' Liens, § 243.) At the time and place specified in the summons for the return thereof, in a court not of record, issue must be joined, if such parties appear, by the defendant filing with the justice a verified answer, containing a general denial of each allegation of the complaint, or a specific denial of one or more of the material allegations thereof; or any other matter constituting a defense to the lien or to the claim upon which it is founded. If the defendant fail to appear on the return-day, on proof by affidavit of the service of the summons and complaint, judgment may be rendered for the amount claimed, with costs. (Lien Law, § 48. See E. C. &, G. Con- solidated Laws. See also, Eay on Mechanics' Liens, § 243.') FOEECLOSUKE OF MECHANIC'S LIENS. 325 If issue is joined in such action in a court not of record, it must be tried in the same manner as other issues in such court, and judgment entered thereon, which shall be enforced, if for the plaintiff, in the manner pro- vided in the following section. If for the defendant, in the same maimer as in an action on contract in such court. (Lien Law, § 49. See B. C. & G. Consolidated Laws. See also, Eay on Mechanics' Liens, § 243.) Execution may be issued upon a judgment obtained in an action to enforce a mechanic's lien against real property in a court not of record, which shall direct the officer to sell the title and interest of the owner in the premises, upon which the lien set forth in the complaint existed at the time of filing the notice of lien. (Lien Law, § 50. See B. C. & G. Con- solidated Laws. See also, Eay on Mechanics' Liens, § 243.) § 3. Appeals. An appeal may be taken from a judgment rendered in a court not of record in an action to enforce a mechanic's lien, according to the pro- visions of the code of civil procedure, regulating appeals from judg- ments in actions on contract in such courts. (Lien Law, § 51. See B. C. & G. Consolidated Laws. See also, Eay on Mechanics' Liens, § 243.) § 4. Transcript of judgment. "When a judgment is rendered in a court not of record, the justice or judge of the court in which it is tried, or other person authorized to furnish transcripts of judgments therein, shall furnish the successful party a transcript thereof, which he may file with the clerk of the county with whom the notice of lien is filed. The filing of such transcript has the same effect as the filing of a transcript of any other judgment rendered in such courts. (Lien Law, § 52. See B. C. & G. Consolidated Laws. See also, Eay on Mechanics' Liens, § 243.) § 5. Costs and disbursements. If an action is brought to enforce a mechanics' lien against real prop- erty in a court of record, the costs and disbursements shall rest in the discretion of the court, and may be awarded to the prevailing party. The judgment rendered in such an action shall include the amount of such costs and specify to whom and by whom the costs are to be paid. If such action is brought in a court not of record, they shall be the same as allowed in civil actions in such court. The expenses incurred in serving the summons by publication may be added to the amount of costs now allowed in such court. (Lien Law, § 53. See B. C. & G. Consolidated Laws. See also, Eay on Mechanics' Liens, § 242.) 326 CIVIL LAW AND PRACTICE. § 6. Judgment in case of failure to establish lien. If the lienor shall fail, for any reason, to establish a valid lien in an action under the provisions of this article, he may recover judgment therein for such sums as are due him, or which he might recover in an action on a contract, against any party to the action. (Lien Law, § 64. See B. C. & G. Consolidated Laws. See also, Eay on Mechanics' Liens, § 240.) § 7. Offer to pay money into court, or to deposit securities, in discharge of lien. At any time after an action is brought under the provision of this article, the owner may make and file with the clerk with whom the -notice of lien is filed, if in a court of record, and if in a court not of record, with the court, an offer to pay into court the sum of money stated therein, or to execute and deposit securities which he may describe, in discharge of the lien, and serve upon the plaintiff a copy of such offer. If a written acceptance of the offer is filed with such clerk, or court, within ten days after its service, and a copy of the acceptance is served upon the party making the offer, the court, upon proof of such offer and acceptance, may make an order, that on depositing with such clerk, or court, the sum so offered, or the securities described, the lien shall be discharged, and that the money or securities deposited shall take the place of the prop- erty upon which the lien existed, and shall be subject to the lien. If the offer is of money only, the court, on application and notice to the plaintiff may make such order, without the acceptance of the offer by the plaintiff. If such action is brought in a court not of record, such order may be made by the county court of the county where such action is brought upon notice, and upon filing such order and depositing such sum of money or securities with the county clerk of such county, he shall forth- with discharge said notice of lien, by writing upon the margin of the record thereof, the words " discharged by payment." Money or securities deposited upon the acceptance of an offer pursuant to this section shall be held by the clerk or the court until the final determination of the action, including an appeal. (Lien Law, § 55. See B. C. & G. Consolidated Laws. See also, Eay on Mechanics' Liens, § 187.) § 8. Preference over contractors. When a laborer, subcontractor or materialman shall perform labor or furnish materials for an improvement of real property or for a public improvement, for which he is entitled to a mechanic's lien, the amount due to him shall be paid out of the proceeds of the sale of such property FOEECLOSUKE OF MECHANIC'S LIENS. 327 or out of the moneys of the state or municipal corporation applicable to the construction of the public improvement, under any judgment rendered pursuant to this article, in the order of priority of his lien, before any part of such proceeds is paid to the person for whom he has per- formed such labor or furnished such material. If several notices of lien are filed for the same claim, as where the contractor has filed a notice of lien, for the services of his workmen, and the workmen have also filed notices of lien, the judgment shall provide for but one payment of the claim which shall be paid to the parties entitled thereto in the order of priority. Payment voluntarily made upon any claim filed as a lien shall not impair or diminish the lien of any person except the person to whom the payment was made. (Lien Law, § 56. See B. C. & G. Con- solidated Laws. See also, Eay on Mechanics' Liens, § 179.) § 9. Judgment may direct delivery of property in lieu of money. If the owner has agreed to deliver bills, notes, securities or other obliga- tions or any other species of property, in payment of the debt upon which the lien is based, the judgment may direct that such substitute ba delivered or deposited as the court may direct, and the property affected by the lien cannot be sold, by virtue of such judgment, except in default of the owner to so deliver or deposit within the time directed by the court. (Lien Law, § 57. See B. C. & G. Consolidated Laws. See also, Eay on Mechanics' Liens, § 187.) § 10. Judgment in action to foreclose lien on account of public improve- ment. If, in an action to enforce a lien on account of a public improvement, the court finds that the lien is established, it shall render judgment directing the state or the municipal corporation to pay over to the lienors entitled thereto for work done or material furnished for such public improvement, and in such order of priority as the court may determine, to the extent of the sums found due the lienors from the contractors, so much of the funds or money which may be due from the state or municipal corporation to the contractor, as will satisfy such liens, with interest and costs, not exceeding the amount due to the contractor. (Lien Law § 60. See B. C. & G. Consolidated Laws. See also, Eay on Mechanics' Liens, § 239.) § 11. Judgment in action to foreclose lien on railroad property. If the lien is for labor done or materials furnished for a railroad corpo- ration, upon its land, or upon or for its track, rolling stock or the appurter- 328 CIVIL LAW AND PRACTICE. nances of its railroad, the judgment shall not direct the sale of any of the real property described in the notice of the lien, but when in such ease, a judgment is entered and docketed with the county clerk of the county where the notice of lien is filed, or a transcript thereof is filed and' docketed in any other county, it shall be a lien upon the real property of the railroad corporation, against which it is obtained, to the same epctent, and enforceable in like manner as other judgments of courts of record against such corporation. (Lien Law, § 61. See B. C. & G. Consolidated Laws. See also, Eay on Mechanics' Liens, § 239.) FOKECLOSUKE OF LIENS UPON CHATTELS. 329 CHAPTEE XVL FOEECLOSUEE OF A LtEN XTPON A CHATTEL. Section 1. Liens on chattels. 2. Sale of personal property to satisfy lien. 3. Notice of sale. 4. Advertiseemnt of sale. 5. Redemption after sale. 6. Disposition of proceeds. 7. Remedy of sale by advertisement not exclusive. 8. Enforcement of lien by action. 9. Seizure of chattels in action. 10. Judgment in foreclosure action. 11. Actions in inferior court. 12. Application of certain sections of Lien Law. § 1. Liens on chattels. The Lien Law provides for the creation and enforcement of liens on monuments, gravestones and cemetery structures (art. 5); for liens for labor on stone (art. 6) ; for liens for service of stallions (art. 7) ; and other liens on personal property (art. 8) ; including an artisan's lien (§ 180) ; a hotel, innkeeper's and boarding and lodging house keeper's lien (§ 181) ; a factor's lien on merchandise (§ 182) ; a lien of a bailee of animals (§ 183) ; a lien of a bailee of motor vehicles (§ 184) ; a lien of manufacturers and throusters of silk goods (§ 185) ; a lien of bailees for hire (§ 186) ; and a lien of truckmen and draymen (§ 187.) It also provides for the enforcement of liens on personal property (art. 9), by sale of the property to satisfy the lien (§§ 200-205), and by action. (§§ 206-210. See B. C. & G. Consolidated Lavrs.) § 2. Sale of personal property to satisfy lien. A lien against personal property, other than a mortgage on chattels and ihe lien of a keeper of a hotel, apartment hotel, inn, boarding house oi- lodging house, excepting an emigrant lodging house, if in the legal pos- session of the lienor, may be satisfied by the public sale of such property according to the provisions of this article. (Lien Law, § 200. See B. C. & G. Consolidated Laws.) The original form of this statute is as stated above, but it seems that the Legislature intended to mean " immigrant " when it said " emigrant." 330 CIVIL LAW AND PEACTICE. § 3. Notice of sale. Before such sale' is held the lienor shall serve a notice upon the owner with due diligence within such county, if such owner can be found when such lien arose, if not then to the person for whose account the same is then held personally, provided such service can be made with due dili- gence within the county where such lien arose, but if such person cannot with due diligence be found within such county, then such notice shall be served by mailing it to him at his last known place of residence, or to his last known post-office address. A like notice shall be served in the same way upon any person who shall have given to the lienor notice of an interest in the property subject to the lien. Such notice shall contain a statement of the following facts : 1. The nature of the debt or the agreement under which the lien arose, with an itemized statement of the claim and the time when due; 2. A brief description of the personal property against which the lien exists ; 3. The estimated value of such property ; 4. The amount of such lien, at the date of the notice. It shall also require such owner or person to pay the amount of such lien, on or before a day mentioned therein, not less than ten days from the service thereof, and shall state the time when and place where such property will be sold, if such amount is not paid. If the agreement on which the lien is based provides for the continuous care of property the lienor is also entitled to receive all sums which may accrue under the agreement, subsequent to the notice and prior to payment or a sale of the property; and the notice shall contain a statement that such additional sum is demanded. Such notice shall be verified by the lienor to the effect that the lien upon such property is valid, that the debt upon which such lien is founded is due and has not been paid and that the facts stated in such notice are true to the best of his knowledge and belief. (Lien Law, § 201. See B. 0. & G. Consolidated Laws.) § 4. Advertisement of sale. Each sale of personal property to satisfy a lien thereon shall be at public auction to the highest bidder, and shall be held in the c^ty or town where the lien was acquired. After the time for the payment of the amount of the lien specified in the notice required to be served by the preceding section, notice of such sale, describing the property to be sold, and stating the name of the owner or person for whose account the same is then held and the time and place of such sale, shall be published once a week, for two consecutive weeks, in a newspaper published in the town FOEECLOSURE OF LIENS UPON CHATTELS. 331 or city where such sale is to be held, and such sale shall he held not less than fifteen days from the first publication ; if there be no newspaper pub- lished in such town, such notice shall be posted at least ten days before such sale in not less than six conspicuous places therein. (Lien Law, § 202. See B. C. & G. Consolidated Laws.) § 5i Redemption after sale. At any time before such property is so sold, the owner thereof may redeem the same by paying to the lienor the amount due on account of the lien, and whatever legitimate expenses have been incurred at the time of such payment in serving the notice and advertising the sale as required in this article. Upon making such payment, the owner of such property is entitled to the possession thereof. (Lien Law, § 203. See B. C. & G. Consolidated Laws.) § 6. Disposition of proceeds. Of the proceeds of such sale, the lienor shall retain an amount suffi- cient to satisfy his lien, and the expenses of advertising and sale. The balance of such proceeds, if any, shall be held by the lienor subject to the demand of the owner, or his assignee or legal representative, and a notice that such balance is so held shall be served personally or by mail upon the owner of the property sold. If such balance is not claimed by tbe owner or his assignee or legal representative within thirty days from the day of sale, such balance shall be deposited with the treasurer or chamberlain of the city or village, or the supervisor of the town, where such sale was held. There shall be filed with such deposit, the affidavit of the lienor, stating the name and place of residence of the owner of the property sold, if known, the articles sold, the prices obtained therefor, that the notice required by this article was duly served and how served upon such owner, and that such sale was duly legally and how advertised. There shall also be filed therewith a copy of the notice served upon the owner of the property and of the notice of sale published or posted as required by this article. The officer with whom such balance is deposited shall credit the same to the owner of the property, and pay the same to such owner, his assignee or legal representative, on demand and satisfactory evidence of identity. If such balance remains in the possession of such officer for a period of five years, unclaimed by the person legally entitled thereto, it shall be transferred to the general funds of the town, village or city, and be applied and used as other moneys belonging to such town, village or city. (Lien Law, § 204. See B. C. & G. Consolidated Laws.) 332 CIVIL LAW AND PEACTICE. § 1. Remedy oiE sale by advertisement not exclusive. The preceding provisions of this article do not preclude any other remedy by action or otherwise, now existing, for the enforcement of a lien against personal property, or bar the right to recover so much of the debt as shall not be paid by the proceeds of the sale of the property. (Lien Law, § 205. See B. C. & G. Consolidated Laws.) § 8. Enforcement of lien by action. An action may be maintained to foreclose a lien upon a chattel, for a sum of money, in any case where such a lien exists at the commencement of the action. The action may be brought in any court, of record or not of record, which would have jurisdiction to render a judgment, in an action founded upon a contract, for a sum equal to the amount of the lien. (Lien Law, § 206. See B. C. & G. Consolidated Laws.) § 9. Seizure of chattels in action. Where the action' is brought in the supreme court, the city court of the city of New York, or a county court, if the plaintiff is not in possession of the chattel, a warrant may be granted by the court, or a judge thereof, commanding the sheriff to seize the chattel and safely keep it to abide the final judgment in the action. The provisions of title third of chapter seven of the code of civil procedure may apply to such warrant, and to the proceedings to procure it, and after it has been issued, as if it was a warrant of attachment, except as otherwise expressly prescribed in this article. (Lien Law, § 207. See B. C. & G. Consolidated Laws.) § 10. Judgments in foreclosure action. In an action brought in a court specified in the last section, final judg- ment, in favor of the plaintiff, must specify the amount of the lien, and direct a sale of the chattel to satisfy the same and the costs, if any, by a referee appointed thereby, or an officer designated therein, in like manner as where a sheriff sells personal property by virtue of an execution ; and the application by him of the proceeds of the sale, his fees and expensies, to the payment of the amount of the lien, and the costs of the action. It must also provide for the payment of the surplus to the owner of the chattel, and for the safe keeping of the surplus, if necessary, until it is claimed by him. If a defendant, upon whom the summons is personally served, is liable for the amount of the lien, or for any part thereof, it may also award payment accordingly. (Lien Law, § 208. See B. C. & G. Consolidated Laws.) FOEECLOSUEE OF LIENS UPON CHATTELS. 333 § 11. Actions in inferior court. Where the action is brought in a court, other than one of those specified in section two hundred and seven, if the plaintiff is not in possession of the chattel, a warrant, commanding the proper officer to seize the chattel, and safely keep it to abide the judgment, may be issued, in like manner as a warrant of attachment may be issued in an action founded upon a contract, brought in the same court; and the provisions of law applicable to a warrant of attachment, issued out of that court, apply to a warrant, issued as prescribed in this section, and to the proceedings to procure it, and after it has been issued; except as otherwise specified in the judgment. A judgment in favor of the plaintiff, in such an action, must correspond to a judgment, rendered as prescribed in the last section, except that it must direct the sale of the chattel by an officer to whom an execution, issued out of court, may be directed ; and the payment of the surplus, if its safekeeping is necessary, to the county treasurer, for the benefit of the owner. (Lien Law, § 209. See B. C. & G. Consolidated Laws.) § 12. Application of certain sections of Lien Law. Sections two hundred and six to two hundred and nine inclusive do not affect any existing right or remedy to foreclose or satisfy a lien upon a chattel, without action ; and they do not apply to a case, where another mode of enforcing a lien upon a chattel is specially prescribed by law. (Lien Law, § 210, See B. C. & G. Consolidated Laws.) 334 CIVIL LAW AND PKACTICE. CHAPTER XVIL SUMMAET PEOCEEDIWGS TO EECOVEE POSSESSION OP EEAL PEOPEETT. Section 1. Nature and scope of remedy. 2. Necessity of relation of landlord and tenant. 3. Non-payment of rent. 4. Notice to quit. 5. Notice to tenant in default. 6. Holding over after sale. 7. Squatters. 8. Jurisdiction of justices. 9. The petitioner. 10. The petition. 11. Precept. 12. Proceedings on return of precept. 13. Final order. § 1. Nature and scope of remedy. The cases to which the remedy hy way of summary proceeding for the recovery of the possession of real property is applicable are classified by the statute into three general groups, distinguishable principally by the difference in the original relations of the parties to the proceeding, or of their predecessors, to the real property of which possession is sought. In the first group the proceedings are directed against persons who went into possession of the real property as tenants, but whose right to con- tinued possession has terminated in some of the ways specified in the statute. (Civil Practice Act, § 1410.) In the second group, the proceed- ings are directed against persons between whom and the owner of the premises the relation of landlord and tenant never existed, and whose right to possession, if once existent, has terminated. (Id., § 1411.) In the third group, the proceedings are directed against persons who obtained possession of premises by force, or who are holding possession by force. (Id., § 1412. In New York City and in adjoining counties the remedy is restricted by the emergency housing laws which are in effect until Novem- ber 1, 1922.) § 2. Necessity of relation of landlord and tenant. Under sections 1411 and 1412, the relation of landlord and tenant need not exist, but under section 1410, such relation is essential. (People ex rel. Ainslee v. Howleit, Y6 N. Y. 574.) The question of actual legal title to the real estate does not ordinarily arise. (People ex rel. Hill v. Kelsey, 82 Misc. 491, 144 N. Y. Supp. 135.) It does not apply to every case where one claims ownership and the other possession ; but only where he SUMMAEY PROCEEDINGS. 335 who is in possession tas, by some agreement, assumed the characj-ei of a tenant of the other party, so that he is not in position to dispute his title. (Benjamin v. Benjamin, 5 IST. Y. 383; Schreiber v. Ooldsmith, 25 Misc. 45 ; Dodin v. Dodin, 32 Misc. 208.) The relation of landlord and tenant cannot be created by operation of law (Matter of Stochwell v. Wash- hum, 69 Misc. 543) ; and if the relation is claimed to have been founded upon an agreement, and the agreement is void, the relation is not estab- lished. (People ex rel. AinMee v. Hewlett, Y6 N. Y. 574.) Where, in summary proceedings, the tenant admits that he is the tenant in possession of the premises in question, but denies that any attornment has taken place between him and the party plaintiff, he is precluded from controverting his landlord's title. (Barnes v. Angel, 61 How. 157.) § 3. Nonpayment of rent. A landlord may institute proceedings to recover possession of the premises for nonpayment of rent, notwithstanding a covenant to pay for improvements at the expiration of the term. (Paine v. Trinity Church, 7 Hun, 89.) Whenever a tenant is proceeded against, under the statute, on the ground that he holds over without the permission of his landlord, after default in the payment of rent pursuant to the agreement under which the prem- ises are held, it must be made to appear not only that such holding over is without permission of the landlord, but that the tenant holds the premises under the agreement pursuant to which the rent is claimed to be due, at the time the proceedings are instituted. If the tenant is then holding under some new agreement with the landlord he cannot be dispossessed under the statute on the ground that he is in default in the payment of rent under a prior agreement. (Burnett v. Scrihner, 16 Barb. 621.) If the tenant has been evicted by the landlord against his objection, from a substantial portion of the demised premises, according to a long line of authority such an eviction precludes the recovery of rent accruing subsequent to the eviction and while it continues. (Murphy v. Gedney, 10 Hun, 151.) § 4. Notice to quit. If a person to be removed is a tenant at will or at sufferance, the statu- tory notice to quit must be served upon him before instituting the proceed- ings for his removal. (Civ. Prac. Act, § 1416 ; Burkhart v. Tucker, 27 Misc. 724, 59 N. Y. Supp. 711.) Such a tenancy may be terminated by a written notice of not less than thirty days, given in behalf of the landlord 336 CIVIL LAW AND PKACTICE. to the tenant, requiring him to remove from the premises, served either hy delivery to the tenant, or to a person of suitable age and discretion residing upon the premises, or if neither the tenant nor such a person can be found, by affixing it upon a conspicuous part of the premises, where it may be conveniently read. At the expiration of thirty days after the service of such notice, the landlord may re-enter, maintain ejectment, or proceed in the manner prescribed by lav? to remove the tenant without further or other notice to quit. (Real Property Law, § 228. See B. C. & G. Consolidated Laws.) Where the duration of the tenant's term is fixed, as where the tenancy is from year to year, or from month to month, the notice pre- scribed by the Real Property Law is not necessary to terminate the tenancy. {Adams v. City of CoUoes, 127 N. Y. 175; Parh v. Castle, 19 How. 29 ; People ex rel. Oldhouse v. Goelet, 64 Barb. 476.) In case of a tenancy at will the notice to quit need not terminate with the end of the month. (Peer v. O'Leary, 8 Misc. 350, 28 K Y. Supp. 687.) Where the proceeding is to be brought under section 1411 of the Civil Practice Act, a notice requiring all persons occupying the property to quit the same by a day specified must be served either personally upon the per- son or persons to be removed, or affixed conspicuously upon the property, at least ten days before the day specified therein, and before the commence- ment of the summary proceeding. (See Civ. Prac. Act, §§ 1411, 141 G.)- A tenancy from year to year is a tenancy for one or more years. Such a tenant may be proceeded against at the expiration of any year of his tenancy without notice to quit. {Park v. Castle, 19 How. 30.) A tenant who holds over a definite term for a brief period without the consent of his landlord, does not thereby become a tenant by sufferance, and is not entitled to notice to quit before the commencement of summary proceedings. To entitle him to notice, holding over must be continued for such length of time and under such circumstances as to authorize the implication of assent upon the part of the landlord. {Smith v. Littlefield, 51 N. Y. 539.) Where a tenant is allowed to occupy premises without being limited to any term, and without any fixed rent being reserved, but only such rent as the premises, or the occupation thereof was worth ; this is a tenancy at will, and therefore within the provisions of the statute relating to summary proceedings to recover the possession of land. {Sars- fieldv. Heahj, 50 Barb. 245.) Where a lease provides that on a breach of any of the conditions therein specified, at the option of the landlord the tenancy shall cease without notice, nonpayment of rent does not constitute such a breach as to authorize proceedings w'ithout notice. {Beech v. Nixon, 9 N. Y. 35.) SUMMAEY PEOOEEDINGS. 337 § 5. Notice to tenant in default. The notice served under subdivision 2 of section 1410 of the Civil. Prac- tice Act requiring the tenant to pay his rent vrithin three days or to sur- render the possession of the demised premises may properly be signed by the agent for the landlord. (Powers v. Deo, 64 App. Div. 373, 72 N. Y. Supp. 103 ; Moore v. Conglin, 127 App. Div. 810, 111 IST. Y. Supp. 856.) The strict practice which prevailed at common law requiring the peti- tioner in order to maintain summary proceedings for nonpayment of rent to show that he had demanded the precise sum due and upon the premises, if the proceeding was founded upon a demand, has no existence under the Code. (Id.) If a demand of the payment of rent was made upon the demised premises the day it was due it will be sufficient to sustain the proceeding although an alternative three-day notice was not served. {Heinrich v. Mack, 25 Misc. 597.) But the demand must be a personal one, and not a mere bill for rent served by mail (Zinsser v. Ilerrman, 23 Misc. 645) ; and must be for the payment of the rent absolutely as distin- guished from the three days' notice to pay or surrender possession of the premises. {Boyd v. Milonc, 24 Misc. 734; Tolman v. Headinri, 11 App. Div. 264; People ex rel. Simon v. Gross, 50 Barb. 231.) § 6. Holding over after sale. Where the proceeding is brought under subdivision 2 of section 1411 of the Civil Practice Act, by a purchaser at a sale under a judgment of fore- closure in an action, the proceeding must fail, as the remedy in such case is by application for an order in the nature of a writ of assistance, the remedy given by subdivision 2 being limited to the case of a foreclosure by advertisement. {Greene v. Geiger, 46 App. Div. 210.) Proceedings under this subdivision of section 1411 cannot be maintained where the foreclosure was by advertisement conducted by commissioners for the loan of certain funds of the United States. {People v. Burdiclcs, 52 Hun, 348, 5 N. Y. Supp. 363.) To authorize the purchaser of property at a sale under an execution to maintain this proceeding under subdivision 1 of section 1411, it must appear that the sale was duly advertised and conducted as a sale of real property. {MitnacU v. Cocks, 65 How. 84.) The defendant in the exe- cution may attack the validity of the execution sale in the proceedings to dispossess him. {Matter of Manson v. Wermuth, 182 N. Y. 234.) § 7. Squatters. A person who acquires possession of premises without the consent and against the will of the holder of the legal title may be proceeded against 22 338 CIVIL LAW AND PEACTICE. as an intruder under subdivision 4 of section 1411 of the Civil Practice Act {O'Donnell v. Mclntyre, 41 Hun, 100.) A proceeding based on the nonpayment of rent cannot be sustained on the theory that the person pro- ceeded against vras a squatter. {Morgan v. Morgan^ 150 N. Y. Supp; 554.) § 8. Jurisdiction of justices. Section 1413 of the Civil Practice Act states generally to what judicial or other officers an application may be made for the precept which is the first process issued in this proceeding; and sections 1414 and 1415 state what persons may make the applications, and upon what papers. The statutory remedy by way of a summary proceeding for the recovery of possession of real property is in derogation of the common-law remedy by action and must be strictly pursued. {Katz v. Schreckinger, 52 Misc. 160, 101 ]Sr. Y. Supp. 743; Beach v. McGovem, 41 App. Div. 381, 58 N. Y. Supp. 493; Benjamin v. Benjamin, 5 N. Y. 383; Miner v. Burling, 32 Barb. 540 ; Fuchs v. Cohen, 29 Abb. N. C. 56, 19 N. Y. Supp. 236.) A peculiar and limited jurisdiction is conferred by the statute upon certain magistrates, and this jurisdiction can be exercised only in the way prescribed. {Potter v. New York City Baptist Mission Society, 23 Misc. 671, 680.) They have no jurisdiction to try the cause except by the mode pointed out. § 9. The petitioner. A landlord who has leased the premises to a tenant who has not yet taken possession, may maintain summary proceedings to eject a stranger who has unlawfully entered upon the. premises. {Davidson v. Hammer- stein, 28 Misc. 529, 59 'N. Y. Supp. 563.) So one entering upon lands with the consent and by the collusion with the tenant, may be removed by the landlord as an intruder. {O'Donnell v. Mclntyre, 41 Hun, 100.) The proceedings may be maintained by and in the name of the agent of the landlord {Case v. Porterfield, 54 App. Div. 109, 66 JST. Y. Supp. 337; Powers V. De 0, 64 App. Div. 373, 72 N. Y. Supp. 103; Matter of Stuyvestant Beal Estate Co., 40 Misc. 205), or by the agent of one of two landlords who are tenants in common and colessors of the demised premises. {Wyckojf v. Frommer, 12 Misc. 149.) But when the petition is made by an agent, proof must be given of his authority. {Havemeyer v. Stoddard, 148 N. Y. Supp. 256.) But one partner who has leased premises to his firm under an agreement by the latter to pay rent cannot mainlain this proceeding against his firm for nonpayment of rent. {Bailey v. Crowell, 13 Misc. 63.) SUMMARY PROCEEDINGS. 339 § 10. The petition. The petition upon whicli tlie proceeding is based, and upon which the jurisdiction of the justice depends, must be verified in like manner as a verified complaint in an action (see Matter of Stuyvestant Real Estate Co., 40 Misc. 205), and must describe the premises of which the pos- session is claimed, and the interest therein of the petitioner or of the person whom he represents (see Underhill v. Cohen, 61 Misc. 627; Cram S;.' Dietrich, 38 Misc. 790; Engle, Heller Co. v. Elias Brewing Co., 37 Misc. 480; Ferber v. Apfel, 113 App. Div. 720), as this description is an essential part of the petition in order to confer jurisdiction. (Id.) Facts must be stated showing that the conventional relations of landlord and tenant existed between the parties. {Dreyfus v. Carroll, 28 Misc. 222.) The courts have frequently held that a petition is fatally defective and insufiicient to confer jurisdiction which sets up the petitioner's interest as being that of "landlord," {Ferber v. Apfel, 113 App. Div. 720; Matthews v. Carman, 122 App. Div. 582.) If the petition is made by an agent, an allegation that the petitioner was the agent of the plaintiif who was the landlord, and as such agent entered into an agreement with the party as tenant, and by the terms thereof the tenant hired from the land- lord the premises in question, has been held a sufficient statement of the interest of the petitioner to comply with the requirements of section 1415 and confer jurisdiction upon the justice. {Cappel v. Loudon, 61 Misc. 652; Slater v. Waterson & Law Amusement Co., 58 Misc. 215; Rowland V. Dillingham, 83 App. Div. 156.) The petition should also state the facts as to the service and contents of any notice required by the statute (Civ. Prac. Act, §§ 1416, 1417). For the form of a. petition on failure of a tenant to pay rent, see Form No, 110. § 11. Precept. On presentation of a petition conforming to the requirements of the statute, the justice should issue the precept prescribed by section 1418 and in a proper case by section 1423 of the Civil Practice Act (see Form No. Ill), which should.be served by the constable as directed in section 1421 or section 1423 of that act. If the precept is served otherwise than personally upon the person to whom it is directed a copy of section 1422 must be indorsed upon each copy of the precept so served ; and if service is made by affixing a copy of the precept upon a conspicuous part of the property as provided in subdivision 3 of section 1421, the return of the constable should show that service could not be made as prescribed in sections 1 and 2 of that section, as otherwise the justice will not acquire 340. CIVIL LAW AND PEACTICE. jurisdiction by the service. (Beach v. Bainbridge,, 7 Hun, 81 ; Matthews V. Carman, 182 App. Div. 582. See Civil Practice Act, § 1424.) § 12. Proceedings on return of precept. At the time of the return of the precept, without waiting as prescribed in an action before a justice of the peace, the person to whom the precept is directed, or his landlord, or any person in possession or claiming posses- sion of the premises or any part thereof, may answer, orally or in writing, denying generally the allegations, or specifically any material allegation of the petition, or setting forth a statement of any new matter constituting a legal or equitable defense or counterclaim. Such defense or counterclaim may be set up and established in like manner as though the claim for rent in such proceeding was the subject of an action. If such, answer be oral the substance thereof shall bs endorsed upon the petition. (Civil Prac. Act, § 1425. See Form No. 112.) If the application is founded upon an allegation of forcible entry or forcible holding out, the issues thus raised must be governed by the pro visions of section 1426 of the Civil Practice Act. The issues will be tried by the justice unless a jury is demanded and the costs and expenses of obtaining a jury are paid, and the proceedings on the trial will be substantially the same as on a trial of an action in a justice's court. (Civ. Prac. Act, § 1428; Goff v. Vedder, 12 Civ, Pro. Eep. 358; People v. Loomis, 2 Civ. Pro. Eep. 278.) The justice has power at the time when issue is joined to adjourn the trial of the issues to enable a party to procure necessary witnesses. (Civ. Prac. Act, § 1429.) And he may also grant an adjournment, in his dis- cretion, for any other cause, when it appears that an adjournment should be had. {Go'ff v. Vedder, 12 Civ. Pro. Eep. 358.) The party proceeded against has a right to a reasonable time in which to prepare to meet the issues presented by the pleadings. It is almost the universal practice upon the return day of process, and almost as a matter of course, to grant an adjournment without any substantial reason being given; and unseemly haste to rush the proceeding will not be countenanced. {Trunk v. Howard Laundry Co., 56 Misc. 440, 107 N. Y. Supp. 66.) Such at least is the rule as to adjournments in a proceeding pending in the Municipal Court of the city of New York. (See Mahar v. Edwards, 59 Misc. 488.) § 13. Final order. If sufficient cause is not shown upon the return of the precept; or i-' the verdict of the jury, or the decision of the justice upon a trial witho^ ■ a JTiry, is in favor of the petitioner, the justice must make a final order SUMMARY PROCEEDINGS. 341 awarding to the petitioner the delivery of the possession of the property ; except that, where the case is within section 1417 of the Civil Practice Act, the final order must direct the removal of the occupant. In either case the final order must award to the petitioner the costs of the special proceeding. If the verdict or decision is in favor of the person answering, the justice must make a final order accordingly and awarding to him the costs of the special proceeding. (Civil Prac. Act, § 1430.) There is no judgment, technically speaking, at the termination of this proceeding. The termination is a final order. {Steuerwald v. Jackson, 123 App. Div. 569.) In a summary proceeding to dispossess a tenant for nonpayment of rent, three questions are involved and are necessarily and finally deter- mined in the landlord's favor if he succeeds. These are : First, that the relation of landlord and tenant exists, or, in other words, that the tenant holds under a valid lease ; Second, that the tenant has entered into pos- session ; and Third, that the tenant has defaulted in payment of rent. And in such a proceeding a judgment by default is as conclusive as one rendered after defense and litigation. (Reich v. Cochran, 151 N. Y. 122 ; Meyer- hoffer V. Baher, 121 App. Div. 797, 106 N. Y. Supp. 718.) The final order is erroneous if it simply awards the petitioner the amount of r.^rt due. It should award possession of the premises and not damages for unpaid rent. {Liedthe v. Meyer, 137 App. Div. 74, 122 N. Y. Supp. 951.) For form of final order see Form-No. 113. The final order terminates the lease so that summary proceedings cannot be subsequently maintained under the same lease. (Alexander v. Eapkiv, 148 N. Y. Supp. 117.) The costs allowed in this proceeding are collected as prescribed in sec- tion 1431. The final order, if i-n favor of the petitioner, is enforced by a warrant (Civ. Prac. Act, § 1432. See Form No. 114), unless the other party procures a stay as provided in section 1435 or section 1446. The Code also provides for redemption by the lessee, or by a creditor of the lessee, in certain cases (§§ 1437-1440), and for an appeal from the final order, (§ 1441.) 342 CIVIL LAW AND PKACTICE. CHAPTER XVilL PEOCEEDINGS AGAINST STEAYS UPON THE HIGHWAT. Section 1. Remedies for strays on highways. 2. Petition. 3. Precept. 4. Proceedings upon return of precept. 5. Demand of possession of animal seized. 6. Appeal. § 1. Remedies for strays on highways. The Justice Court Act authorizes the maintenance of an action for a penalty against a person who suffers or permits one or more cattle, horses, colts, asses, mules, swine, sheep, or goats, to run at large, or to be herded or pastured, in a public street, highway, park or place, elsewhere than in a city (Civ. Prac. Act, §§ 345, 346) ; and it authorizes a special proceeding {Matter of Bafferty, 14 App. Div. 55, 43 N. Y. Supp. 760), having for its object the seizure and sale, by due process of law, of such animals so run- ning at large, straying, herded or pastured. (Just. Ct. Act, §§ 847-3T8.) It therefore authorizes certain officers (Id., § 347), or a private person, owning or occupying real property bordering upon the highway (Id., § 348), to seize such animals and keep them in possession until disposed of as therein prescribed. The phrase " running at large," implies permission or assent, or at least some fault on the part of the owner. When animals escape from their owner, after due precaution to secure them has been taken, and with- out fault or negligence on his part, and he takes immediate and suitable efforts to recover them, they cannot be said to be running at large. {Coles V. Bums, 21 Hun, 246.) It is sometimes necessary to drive cattle along a highway, and such use of highways is lawful. (Wood v. Snider, 187 N". Y. 28.) § 2. Petition. . Where cattle have been seized while straying or running at large upon the highway, the officer or person making such seizure is required to immediately file a written, verified petition with the justice of the peaci; of the town in which the seizure was made, setting forth the facts which bring the case within section 347 or section 348 of the Justice Court Act ; and containing also the other allegations and matters required by section PEOCEEDINGS AGAINST STRAYS. 343 349 of that act. (See Form No. 105.) A final order of the justice in favor of the petitioner will be set aside on appeal if the petition fails to allege every fact necessary to authorize the seizure. {Burns v. Morrow, 42 Misc. 657, 87 N. Y. Supp. 719.) And it has been held in respect to the statute from which these provisions were derived, that " as the statute is in derrogation of the common law for the protection of private rights it must be construed strictly, and limited by such construction to the object which the Legislature intended to accomplish." (Coles v. Burns, 21 Hun, 246.) § 3. Precept. Upon the presentation of the petition the justice must issue the precept prescribed by section 350 of the Justice Court Act. (See Form No. 106.) This precept must be served as provided in section 351 of the Code, and proof of service made as provided in section 352. § 4. Proceedings upon return of precept. The owner, or a person having an interest in any animal seized, includ- ing a person who at the time of the seizure was entitled to the possession of the animal, as against' the general owner, by virtue of a special property therein (Just. Ct. Act, § 377), or the agent of such owner or person so entitled (Id., § 378), may appear upon the return of the precept and thereby make himself a party to the special proceeding, and may then file an answer in the form and to the effect stated in section 353, and the subsequent proceedings must be the same as in an action in a justice's court wherein an issue of fact has been joined, except as otherwise specially prescribed. If no person appears and ainswers, or if the decision of the justice, or the verdict of the jury, where the issues were tried by a jury, is in favor of the petitioner, the justice must make a final order as provided in section 354 (see Form No. 107), and thereupon issue a warrant, under his hand, directed generally to any constable of the county, commanding him to sell the animal or animals seized, at public auction, for the best price which he can obtain therefor, and to make return thereof to the justice, at a time and place therein specified, not less than ten nor more than twenty days thereafter. (See Form No. 108.) The sale must be made upon like notice, and in like manner, as a sale by virtue of an execution issued by a justice of the peace (see ante, p. 315), and the constable must make return as required by the warrant, and must pay the proceeds of the sale to the justice, deducting therefrom his fees, at the rate allowed by law for the collection of such an execution. (Just. Ct. Act, § 354.) For the fees 344 CIVIL LAW AND PRACTICE. allowed see Id,, § 326.) The justice must thereupon apply the proceeds of the sale as provided in section 355; and, if any surplus remains, must dispose of it as difected in sections 356, 357, 358. Section 359 directs the procedure to be followed where the decision of the justice, or the verdict of the jury, where the issues were tried by a jury, is in favor of the person answering. § 5. Demand of possession cf animal seized. At any time after the precept before mentioned is issued, and before the commencement of the trial, the owner of any animal seized (Just. Ct. Act, § 360), or a person entitled to the possession of the animal, as against such owner by virtue of a special property therein (Id., § 377), or the authorized agent of such owner or person (Id., § 378), may file with the justice a written demand of the possession thereof and thereupon will be entitled to possession upon complying with the terms prescribed in section 360, or in a proper case, upon compliance with the requirements of section 361. So a person entitled to demand possession of an animal as prescribed in section 360, who did not appear upon the return' of the precept, or upon the trial, may file with the justice a written demand of the possession, at any time after the final order, and not less than three days before the time appointed for the sale, and thereupon become entitled to possession, upon complying with the terms prescribed by section 364. Upon a demand so made, either before or after the final order, the justice must, when requesited by either party, make and enter in his minutes an order determining the same. (Just. Ct. Act, § 365.) § 6. Appeal. An appeal may be taken from the final order made upon a petition. (Id., §367.) The proceedings where several animals were trespassing, and where there are different owners, are pointed out in sections 372, 373 and 374, and the manner in which the proceedings heretofore mentioned are affected thereby. APPEALS. 345 CHAPTEK XIX. APPEALS. Section 1. Kight to appeal. 2. When taken. 3. How taken. 4. Undertaking. 5. When appeal is perfected and cause removed to appellate court. 6. Curing defects in appeal proceedings. 7. Return. 8. Appeal upon error of fact. 9. Review when new trial not demanded. 10. Directing a new trial in justice's court. 11. Appeal for new trial in appellate court. 12. Proceeding in appellate court on appeal for new trial. § 1. Right to appeal. The right to appeal is statutory and can be taken only from such judicial determinations as are designated, expressly or impliedly, by the statute authorizing the appeal, and the right must be exercised within the time and in the mode prescribed. {Oarczynshi v. Russell, 75 Hun, 512, 27 N. y. Supp. 461 ; Jbnes v. 8aUn, 122 App. Div. 666, 107 N. Y. Supp. 508.) However irregular the procedure in justice's court, it can be reviewed only by an appeal taken in the prescribed manner. {Bennett v. Cole, 173 App. Div. 521, 159 N". Y. Supp. 1001.) The only mode of reviewing a judgment rendered by a justice of the peace in a civil action is by appeal as prescribed in article 19 of the Justice Court Act. (Just. Ct. Act, § 426.) The only person who has a right to appeal from a judgment is a party aggrieved thereby. (Id., § 427.) This may be either the defeated or the successful party; or both parties may deem themselves aggrieved by the judgment and appeal therefrom. {Jones V. Owen, 5 Hun, 339.) If the action was originally commenced against two defendants jointly, but by consent was dismissed as to one and continued as to the other, the defendant as to whom the action was dismissed by a judgment rendered in favor of his codefendant has no right of appeal. {Jerry v. Blair, 62 App. Div. 590, 71 IST. Y. Supp. 189.) The action of the justice in dismissing the case on the ground that the title to real estate is involved by the answer, is appealable to the County Court. {Rose v. Purcell, 64 Misc. 674, 120 IST. Y. Supp. 860.) An appeal may be taken from an order determining a claim to the surplus of the proceeds of the sale of animals sold in proceedings against 346 CIVIL LAW AND PKACTICE. strays upon highways (Just. Ct. Act, § 358) ; from a final order in such proceeding (Id., § 367) ; from a final order in summary proceedings to recover possession of real property (Civ. Prac. Act, § 1441) ; and from a judgment in an action to enforce a mechanic's lien upon real property. (Lien Law, § 51.) While these several appeals have some distinctive features, they in the main follow the procedure prescribed for appeals from judgments. The matter following will be confined to the outlines of the practice on an appeal from a judgment rendered in an action in a justice's court. § 2. When taken. An appeal from a justice's judgment must be taken within twenty days after the entry of the judgment in the justice's docket (Just. Ct. Act, § 428), regardless of the time when entered in his minutes (Beuerlin v. Hodges, 10 N. Y. Supp. 505), or within twenty days from the time when the judgment was entered by the justice in his docket-book and the docket- book was open for inspection by the public. If the justice enters the judgment in his docket at night, locks thebook in his safe, and then goes away for his health, the twenty days in which to appeal will not com- mence to run until the docket is again open to the public. (Beid v. Defendorf, 87 Hun, 40, 33 K Y. Supp. 954.) So if the defendant appeals from a judgment in an action in which he did not appear, and there was no personal service of the summons upon him, the appeal may be taken within twenty days after service upon him on the part of the plaintiff of written notice of the entry of judgment, if within five years of such entry. (Just. Ct. Act, § 428.) The day on which the judgment is entered is to be excluded in making the computation of the time limited, and also Sunday if that is the last day. (Dorsey v, Pihe, 46 Hun, 112 ; Just. Ct. Act, § 462.) § 3. How taken. The appeal must be taken by serving a written notice of appeal, sub- scribed by the appellant or by his attorney in the appellate court, upon the justice by whom the judgment was rendered and paying to him or his clerk the costs of the action and the fee of the justice for making a return, as prescribed in section 430 of the Justice Court Act, and by also serving the notice upon the respondent as prescribed in section 432 of that act. (Just. Ct. Act, § 428.) If the appellant desires and is entitled to a new trial in the appellate court he should demand it in his notice of appeal. (Id., § 442.) For a form of the notice see Form ISTo. 79. In case of the death of a party in whose favor judgment was rendered APPEALS. 347 between the docketing of the judgment and the expiration of the time to appeal, service on the widow of the decedent to whom letters testamentary or of administration have not been issued, is unauthorized, and will not effect an appeal. (Clark v. Snyder, 40 Hun, 330.) If the respondpnts are copartners service upon one will be sufficient. (Miller v. Perrine, 1 Hun, 620.) Payment of the costs included in the judgment is necessary to perfect the appeal, and if not paid the appeal will be dismissed (Kcnney v. Livery Stable Keepers' Ass'n, 89 Hun, 190; Ooss v. Hays, 40 App. Dlv. 557), unless the appellate court permits them to be paid nunc pro tunc under the power conferred by section 433 of the Justice Court Act. So payment of the fees of the justice for the return is necessary to render the appeal effectual, and if not so paid or relinquished the appeal will be dis- missed. (Thomas v. Thomas, 18 Hun, 481.) If, however, the appellant pays all the costs which the justice states to be due, the appeal will not be dismissed because the fee of the justice for filing the return was not paid within the time required, as the justice could waive his fee. (Mann v. Dennis, 3 N. Y. Supp. 95, 20 N. Y. St. Eep. 195.) The costs which an appealing party is obliged to pay do not include $10 costs awarded to abide the event by the County Court upon the reversal of a prior judg- ment. (Dighy v. Aldinger, 69 Misc. 557, 125 N. Y. Supp. 495.) The statute requires that the service of the notice of appeal upon the justice must be made by delivering it to him personally, or to his clerk pursuant to law, or by mailing the notice to the justice at his office, UTi"'t3s the justice is dead or cannot be found, after reasonable diligence, within the county. (Just. Ct. Act, § 430.) This requirement of the statute may be complied with by sending the notice of appeal, and the required costs and fees, to the justice by registered letter, and the notice of appeal may be served upon the respondent in the same manner. Mitchell v. Wathins, 21 App. Div. 285, 47 K Y. Supp. 339.) § 4. Undertaking. If the appellant desires a stay of execution he must give the undertaking prescribed by section 434 of the Justice Court Act, deliver it to the justice, or to his clerk appointed pursuant to law, and serve a copy, with notice of the delivery thereof, upon the respondent with the notice of appeal, and in like manner. This will stay the issuing of an execution upon the judg- ment. But if an execution has been issued, the appellant should have a copy of the undertaking certified by the justice or his clerk, or make an affidavit showing that it is a copy and that the original has been duly filed, and serve the copy undertaking so certified, or the copy undertaking 348 CIVIL LAW AND PEACTICE. and affidavit, upon the officer holding the execution. This will stay further proceedings under the execution. For a form of such undertaking see Form No. 80. For form of a notice of the delivery of the undertaking see Form No. 81. Service of a copy undertaking upon the officer holding the execution will not excuse the appellant from serving the copy undertaking upon the respondent as above provided, and without such service the proceedings upon the execution will not be stayed. {Wells v. Dawson, 43 Hun, 509.) Neither will' the execution be stayed by the service of a copy of the undertaking upon the respondent which has not been approved either by the justice who rendered the judgment or by a judge of the appellate court, as required by section 434. {Howley v. Kraemer, 35 Misc. 444, 71 N. Y. Supp. 938.) The attorney for the respondent, within ten days after the service of a copy of the undertaking, with notice of the filing thereof, may serve upon the attorney for the appellant, a written notice that he excepts to the sufficiency of the sureties. Within ten days there- after, the sureties, or other sureties in a new undertaking to the same effect, must justify before the justice or a county judge. At least five days' notice of the justification must be given. The effect of a failure so to justify and procure an allowance is the same as if the undertaking had not been given. (Just. Ct. Act, § 435.) A notice of justification served nine days after the service of the notice of exception to the sureties, and fixing the time of such justification five days later, is a nullity and may be so treated. (Lewin v. Towhin, 51 App. Div. 477, 64 N. Y. Supp. 740.) Where the appellant is not entitled to a new trial in the appellate court, or has not demanded such new trial in his notice of appeal, it is optional with him whether he will give the undertaking to stay execution, or will take the chance of a reversal of the judgment and of obtaining restitution under section 458 of the Justice Court Act. But where the appellant has demanded a new trial in the appellate court, he must give the undertaking required to stay execution at the time of the service of the notice of appeal upon the justice, in order to comply vsdth the statute and render the appeal effectual. (Just. Ct. Act, § 443 ; Slattery v. Haslcin, 42 Hun, 86 ; Lauch V. Gorman, 85 Misc. 491, 148 N. Y. Supp. 933. And see Walrath v. Klock, 22 App. Div. 220, 47 N. Y. Supp. 1047.) An oral stipulation to waive the undertaking is ineffectual ; and the appearance upon the appeal and noticing and moving the case for trial, do not preclude the party from moving to dismiss the appeal, but in some cases the court may permit the undertaking to be filed subsequently. {Lauch v. Gorman, 85 Misc. 491, APPEALS. 349 148 N. Y. Supp. 933.) The appeal is not dismissed because of the fail- ure to give a bond, but stands as an appeal upon questions of law only. {Harrison Bros. Co. v. Excelsior Bag and Mfg. Co., 180 App. Div. Y90, 168 N. Y. Supp. 291.) In case of the death of the justice, or of inability to find him or his clerk within the county, proceedings may be taken as provided in section 437 of the Justice Court Act. § 5. When appeal is perfected and cause removed to appellate court. The service of the notice of appeal in the manner directed by the statute and the payment of the costs included in the judgment and the fee of the justice for making a return are all that is required to perfect an appeal from a judgment rendered by a justice of the peace, unless the appellant has in his notice of appeal demanded a new trial in the appellate court, and, in that case, the filing and service of the undertaking required to stay execution is necessary to perfect the appeal. When the appeal is perfected, even before the return is filed, the case is removed from the subordinate to the appellate court. (Adams v. Fox, 27 N. Y. 640 ; Cutting v. Jesmer, 101 App. Div. 283, 91 N. Y. Supp. 658.) Section 446 of the Justice Court Act prescribing the time when issue is deemed to be joined in the appellate court should be construed to relate to the issue only and in no way to affect the time when the action shall be deemed pending in the County Court. (Cutting v. Jessmer, 101 App. Div. 283, 91 N. Y. Supp. 658.) It follows that all papers in pro- ceedings subsequent to the time when the appeal is perfected should be entitled in the County Court. § 6. Curing defects in appeal proceedings. Section 433 of the Justice Court Act furnishes ample opportunity for an appellant to supply omissions or cure defects in his proceedings to perfect an appeal ; and any act on his part which constitutes a step in the proceed- ing to appeal, and which evinces his intention in good faith to prosecute an appeal, is a sufficient ground for an amendment. (Gutbrecht v. Prospect Park & C. I. B. B. Co., 28 Hun, 497.) It has been held that the power conferred by this section is to supply such omissions or grant such amend- ments as are necessary to perfect the appeal taken, and not to perfect another or different appeal, or to transform the appeal actually taken into an appeal for another purpose. (Thorn v. Boods, 47 Hun, 433.) But this strict construction of the section has not been universally adopted, and it is held that although an appellant has in his notice demanded a new trial to which he is not entitled, this does not render the whole notice inoperative. 350 CIVIL LAW AND PEACTICE. nor deprive him of the appeal which he has in fact taken; and that the County Court may, upon the appellant's application, remove the case from the trial calendar and thereafter treat the case as an appeal taken under section 428, and if necessary make an order requiring the justice to make an amended return containing the evidence taken before him. (Doughty V. Picott, 105 App. Div. 339, 94 N. Y, Supp. 43. See King v. Norton, 36 Misc. 53, 72 K Y. Supp. 591.) The court may relieve the appellant from a failure to file the under- taking on an appeal for a new trial. {Lauch v. Gorman, 85 Misc. 491, 148 N. Y. Supp. 933.) But should do so only on condition that the appellant pay motion costs. (Eaton v. Potts, 96 Misc. 182, 159 N. Y. Supp. 515.) § 7. Return. Section 438 of the Justice Court Act states the requisites of a return on appeal. The justice may file his return as soon after the service of the notice of appeal upon him as he desires, and is not obliged to wait ten days. (Lazarus v. Ludwig, 17 Misc. 365, 40 N". Y. Supp. 63.) The justice must make a return although he has gone out of office (Just. Ct. Act, § 439), and if his return is defective a further return or an amended return may be compelled. (Id., § 440.) § 8. Appeal upon error of fact. The words " error of fact " as used in section 455 of the Justice Court Act have reference to some occurrence which affects the validity of the trial, such as service of process by one not authorized, infancy of a party for whom no guardian ad litem has been appointed, relationship of the justice, misconduct of the jury, and the like. (Fitch v. Devein, 15 Barb. 47 ; Base v. Smith, 4 Cow. 17 ; Sammis v. Nassau Light & Power Co., 91 App. Div. 7; Smith v. Cayuga Lake Cement Co., 105 App. Div. 307; Harvey v. BicJcett, 25 App. Div. 87; Monroe v. White, 25 App. Div. 292; People ex rel. Ballin v. Smith, 184 N. Y. 96, 99.) They hav6 no refer- ence to an erroneous ruling or finding upon the evidence by the justice or a jury. (Adsii v. Wilson, 7 How. 64 ; Earson v. Mills, 8 Id. 377 ; Smith V Cayuga Lahe Cement Co., 105 App. Div. 307; Tarder v. Bezozi, 84 Misc. 551.) § 9. Review when new trial not demanded. The judgment of a justice of the peace may be reversed upon appeal for any error in the proceedings had, which affects the substantial rights of the appellant. While the grounds of objection, as a rule, are not required to be stated APPEALS. 351 before justices of the peace, yet, where trial was conducted by counsel and certain grounds of objection were in fact stated, an objection to the admission of certain evidence not made at the trial cannot be raised on appeal, where it is clear that such evidence did not cause the rendition of the judgment. {Brewer v. Delafield, 45 St. Eep. 587, 18 JST. Y. Supp. 329.) Where the evidence is received without objection the competency of the evidence cannot be questioned on an appal. This is especially so where the justice's attention was not directed to any incompetency in the evi- dence received. After judgment a party will be presumed to have waived any objection that he might have taken, on the trial, but omitted to take. (Rue V. Perry, 63 Barb. 40.) Technical precision is not required in an action before a justice, unless the objection is raised at the time of the trial, and where the parties go to trial upon a complaint, however defective, without objection on account of the defect, a judgment in favor of the plaintiff, if he proves a good cause of action, will be sustained. (^Argensinger v. Levor, 17 Civ. Pro. K. 352.) The County Court should disregard errors not affecting the merits and give judgment according to the justice of the case. It is within the dis- cretion of the justice to allow the plaintiff to give additional evidence after a motion for a nonsuit. {Reed v. Barher^ 3 Code Eep. 160.) The jurisdiction conferred on county courts by section 451 of the Justice Court Act to reverse a judgment of a justice's court because it is against the weight of evidence is to be exercised only when the judgment is so plainly against the weight and preponderance of proof that it can be seen that the justice could not reasonably have arrived at the decision which he made. (Murtagh v. Dempsey, 85 App. Div. 204 ; Brewer v. Calif, 103 App. Div. 138 ; Clinton v. Frear, 107 App. Div. 571 ; International Tail- oring Co. v. Bennett, 113 App. Div. 476 ; McBavy v. Barto, 114 App. Div. 262 ; Vandeymach v. Corbett, 131 App. Div. 391, 115 N. Y. Supp. 911 ; Wears v. Johnson, 151 App. Div. 770, 136 K Y. Supp. 316; Bame v. Groat, 171 App. Div. 708, 157 N. Y. Supp. 750 ; Doughty v. Eingsley, 96 Misc. 142; BecTcer v. Becher, 92 Misc. 382, 156 K Y. Supp. 995.) The County Court in such cases is a court of review and not a court of original jurisdiction to decide facts. (Id.) But where the testimony establishes a case directly, unequivocally, and consistently, and the wit- nesses stand unimpeached and uncontradicted, the justice cannot unrea- sonably discredit them ; and if he does, the judgment will be reversed as against the evidence. Where there is a disputed question of fact, upon which the case turned. 352 CIVIL LAW AND PEACTICE. before the justice, or in relation to whicli there was evidence on both sides, the judgment upon appeal should not be disturbed. It is for the justice to determine, where there is a conflict in evidence, which is the most credible ; and when the justice's judgment is sustained by positive and corroborating testimony, the judgment upon appeal should be- affirmed. {Alfred v. Stevens, 63 Barb. 29 ; Rogers v. Ackerman, 23 Barb. 134; Steams v, Eemmins, 16 K Y. St. Kep. YOl; Fowler v. Van Natta, 71 Hun, 341.) The admission of incompetent testimony by a justice to establish a fact proved by other testimony of a competent character is not such an error as requires the reversal of the judgment. But the improper admission of hearsay testimony which goes to the merits of the action is an error, for which the judgment will be reversed on appeal. (Sanford v. Shaver, 50 Hun, 600.) When there is sufficient legal evidence to support a judgment the appel- late court will not reverse because improper and incompetent evidence was admitted in a justice's court. (Jackson v. Collins, 41 N. Y. St, Eep. 590, 16 K Y. Supp. 651 ; Wells v. Cohn, 55 Barb. 585 ; Earl v. Leffler, 46 Ilun, 9; Frink v. Stevens, 88 Hun, 283.) The County Court should reverse a judgment rendered without sufficient evidence, although the defendant did not appear. (Everett v. Parks, 62 Barb. 9.) Where evidence is offered on trial before the justice and is objected to and excluded, and neither the grounds of the objection nor the object of the proof is stated, and the appellate court can see that a good objection might have been taken, it will presume that the proper objection was taken and the decision below made upon that ground. (Bellows v. Sackett, 15 Barb. 96.) Where the respondent within twenty days after the taking of an appeal, stipulates that the judgment appealed from may be reversed, with five dollars costs and disbursements of the appeal, the judgment will be reversed pursuant to such stipulation, and where the court disregards the stipulation and enters judgment the remedy of the injured party is to move the County Court to set aside its judgment and for leave to enter an order pursuant to the stipulation. (Cucklo v. Eleis, 50 Hun, 600 ; Lefis v. Burk, 51 Hun, 11.) Parties are not to be encouraged to bring an appeal from judgments of justices' court where the error is trivial in amount, and such judgments should not be reversed where substantial justice has been done between the . parties. (Kilmer v. Messling, 10 Hun, 582.). And although a justice's, judgment cannot be sustained upon the theory on which the case was APPEALS. 353 tried, if it can be sustained upon a different theory, the appellate court will not reverse. (^Jackson v. Helmer, 73 App. Div. 134.) § 10. Directing a new trial in justice's court. The purpose of section 453 of the Justice Court Act is to provide a remedy for any fraud practiced or improper means employed hy a party to induce his adversary not to appear either on the return day of the sum- mons or on the day to which the trial was adjourned, or when such failure is the -result of accident, mistake or other misadventure. {Thomas v. Keeler, 52 Hun, 318, 5 N. Y. Supp. 359.) The County Court is a tri- bunal of limited jurisdiction and can exercise on appeal only such powers as are conferred upon it by statute. The power given to that court by section 3064 to direct a new trial of an action begun in a court of a justice of the peace, cannot be exercised unless the defendant renders a satisfactory excuse for his default ; and where the defendant fails to do this, the direc- tion of the County Court that a new trial be had in the court below, is erroneous. (De Bevoise v. Ingles, 88 Hun, 186, 34 N. Y. Supp. 413.) The question whether the exercise of the discretion of the County Court in opening a default and granting a new trial, or in refusing to open the default and rendering a judgment of affirmance, can be reviewed on appeal to the appellate division is not clearly settled by the authorities. (See Kilts V. Neahr, 101 App. Div. 317, 91 N. Y. Supp. 945, and cases cited; and see Rosenberg v. Feiering, 124 App. Div. 522, 108 IST. Y. Supp. 941.) Under section 451 the appellate court upon reversing a judgment of a justice on the ground that it is contrary to or against the weight of evidence, may grant a new trial before the same or some other justice. The right to grant a new trial under this section is limited to cases where the reversal is on the ground that the decision of the justice was against the weight of the evidence. When the appeal is taken on questions of law, the reversal must be absolute and a new trial will not be directed, and in such a case the costs are controlled by the statute and are not in the discretion of the appellate court. (Roiischon v. Moore, 135 App. Div. 699, 119 N. Y. Supp. 252; Papenmeyer y. Roddy, 145 App. Div. 579, 129 K Y. Supp. 868; Tichnor Bros., Inc., y. Bailey, 72 Misc. 638, 132 ]Sr. Y. Supp. 243; Trvhenhach v. Nelson, 73 Misc. 466, 133 JST. Y. Supp. 388.) When the judgment of the justice is reversed on the ground that it is against the weight of evidence, but the County Court does not grant a new trial, the Appellate Division may modify the order of the County Court so as to provide for the granting of a new trial before the same justice. {Brown v. Sullivan, 155 App. Div. 875, 139 N, Y.^Supp. 555.) 23 354 CIVIL LAW AND PKACTICE. § 11. Appeal for new trial in appellate court. A new trial cannot be had in the County Court where the appellant has not demanded it in his notice of appeal (Just. Ct. Act, § 442; Richardson V. Levi, 69 Hun, 432, 22 N. Y. Supp. 352) ; nor where the sum for which judgment is demanded by either party in his pleading does not exceed fifty dollars (Tucker v. Pfau, 70 Hun, 59, 23 N. Y. Supp. 953) ; nor where the amount claimed in the complaint is not sufficient to entitle the parties to a new trial, and the matter plqaded as a counterclaim is not a. proper counterclaim to the cause of action alleged in the complaint (Hall v. Wemey, 18 App. Div. 565, 46 N. Y. Supp. 33 ; Smith v. Rensselaerville Creamery Co., 131 App. Div. 387, 115 N. Y. Supp. 273; Maloy v. Bannon, 169 App. Div. 716, 155 N". Y. Supp. 712) ; nor where neither an issue of fact or of law was joined before the justice. (Doughty v. Picott, 105 App. Div. 339, 94 N. Y. Supp. 43.) An improper pleading cannot be made the basis of a demand for a new trial in the County Court (Hall v. Wemey, 18 App. Div. 565, 46 K Y. Supp. 33) ; but when the counterclaim interposed by the defendant is sufficient and proper upon its face, although it may be false in fact, and pleaded for the mere purpose of obtaining a new trial upon appeal, the question of good faith will not be tried upon affidavits in the County Court, and that effect will be given to the pleading which the statute plainly directs. (Thom,pson v. Pine, 5 Hun, 647; Baum's Casiorvne Co. v. Thorns, 92 Hun, 1, 37 'N. Y. Supp. 913. See Vamdervori v. Mink, 113 App. Div. 601, 98 N. Y. Supp. 772.) Where an appellant has demanded a new trial in a case in which he was not entitled to such trial, he may move for an order transferring the cause to the law calendar, and that it be heard on the justice's return. (Doughty v. Picott, 105 App. Div. 339, 94 N. Y. Supp. 43.) § 12. Proceeding in appellate court on appeal for new trial. When an appeal is taken from a judgment of a justice's court, and a new trial is demanded in the County Court, the judgment appealed from is no longer effective between the parties and the case is heard in the County Court de novo. All proceedings in the suit thereafter are substantially the same as if the action had been originally commenced in the County Court. (Just. Ct. Act, § 446 ; Bums v. Howard, 9 Abb. N. C. 321 ; Crandell v. Bickerd, 32 Mi?o. 258, 66 E". Y. Supp. 352.) The jurisdic- tion of the appellate court for all the purposes of trial and judgment is the same as if the action had been commenced in that court originally. (Crannell v. Comstock, 12 Hun, 293.) APPEALS. 355 The case on appeal to the County Court should be tried upon the issues formed by the pleadings in the justice's court, and the parties should be allowed upon the retrial to introduce the same proof in the County Court under the pleadings that they would have been allowed to introduce upoiL the trial in the justice's court. If the defendant set up a counterclaim in his answer in the justice's court the plaintiff should be allowed to introduce in the appellate court proof of the payment of the claim set up as a counter- claim without being compelled to obtain leave to serve a supplemental pleading setting up such payment. (Utter v. NelUgan, 92 Hun, 185, 3G N. Y. Supp. 591 ; White v. Oray's Sons, 96 App. Div. 154, 89 IST. Y. Supp. 481.) The plaintiff may be allowed to amend his complaint by changing the amount for whichj judgment was demanded to a sum in excess of the jurisdiction possessed by a justice of the peace (Jacog v. WatJcins, 10 App. Div. 475, 4^ N. Y. Supp. 6), and the defendant may be allowed to amend his answer by setting up a new and additional defense. (Pad- dock V. Bamett, 88 Hun, 381, 84 N, Y. Supp. 834.) The County Court has power to try the issues upon the merits, notwithstanding the fact that the case involves the trial of issues relating to a disputed question as to the title to real property. {Oovld v. Patterson, 87 Hun, 533, 34 W. Y. Supp. 289.) ^ ^ PART II. THE JUSTICE COURT ACT, THE PROVISIONS OF THE CIVIL PRACTICE ACT APPLICABLE TO JUSTICES' COURTS, AND FORMS. JUSTICE COURT ACT. ARTICLE 1. Jurisdiction and general powers (§§ 1-24). 2. Parties to action (§§ 25-43). 3. Commencement of action (§§ 44-59). 4. Order of arrest (§§ 60-73). . 5. Attachment of property (§§ 74-88). 6. Replevin (§§ 89-124). 7. Pleadings (§§125-171). 8. Answer of title (§§ 172-179). 9. Adjournments (§§ 180-189). 10. Procuring testimony (§§ 190-213). 11. Trial and incidents (§§ 214-258). 12. Judgments (§§ 259-277). 13. Executions (§§ 278-313). 14. Costs (§§ 314-334). 15. Joint debtors (§§ 335-344). 16. Animals straying on highways (§§ 345-378). 17. (Repealed.) 18. Bonds and undertakings (§§ 416-425). 19. Appeals (§§ 426-459). 20. General provisions (§§ 460-492). 21. Laws repealed; when to take effect (§§ 493, 494). ARTICLE 1. jrnEiSDicnoN and oeiteeai, fowebs. eECTioN 1. Short title. 2. Jurisdiction limited. 3. General civil jurisdiction. 4. No jurisdiction in certain cases. 5. Confession of judgment. 5a. Summary proceedings. 6. Action by person specially aggrieved. 7. Action by common informer. 8. When part of a penalty may be recovered. 9. When action not barred by a collusive recovery. 10. Where action must be brought. 11. Actions generally; by or against whom brought. 12. Action by representative. 13. Limitation of actions; objection, how taken. 14. Tavern-keepers disqualified. 357 358 JUSTICE GOUET ACT. SectionIS. Members of legislature not compelled to act. 16. Justices must hold court. 17. Justice's court not to be held in certain rooms. 18. General powers and duties. 19. Criminal contempt. 20. Punishment for contempt. 21. Offender to be heard. 22. Eecord of conviction. 23. Requisites of commitment. 24. Fine to be paid to overseer or superintendent of the poor. § 1. Short title. This act shall be known as the " Justice Court Act." § 2. Jurisdiction limited. A justice of the peace has the jurisdiction in civil actions and special proceedings expressly conferred upon him by statute and no other. § 3. General civil jurisdiction. Except as otherwise prescribed in the next section, a justice of the peace has juris- diction of the following civil actions: 1. An action to recover damages upon or for breach of a contract, express or implied, other than a promise to marry, where the sum claimed does not exceed two hundred dollars. 2. An action to recover damages for a personal injury, or an injury to property, where the sum claimed does not exceed two hundred dollars. 3. An action for a fine or penalty not exceeding two hundred dollars. 4. An action upon a bond conditioned for the payment of money where the sum claimed to be due does not exceed two hundred dollars, the judgment to be rendered for the sum actually due. Where the sum secured by the bond is to be paid in instal- ments an action may be brought for- each instalment as it becomes due. 5. An action upon a surety bond taken by any justice of the peace. G. An action upon a judgment, either foreign or domestic rendered in any inferior court not of record, where the sum claimed does not exceed two hundred dollars. An action upon a judgment, foreign or domestic rendered in a court of record, where the sum claimed does not exceed fifty dollars. 7. An action to recover one or more chattels, with or without damages for the taking, withholding, or detention thereof, where the value of the chattel, or of all the chattels, us stated in the affidavit made on the part of the plaintiff, does not exceed two hundred dollars. 8. An action to recover damages for an escape from the jail liberties where the sum claimed does not exceed fifty dollars. 9. An action against an executor or administrator as such, on a claim not exceeding fifty dollars, which has been duly presented to and rejected by him. § 4. No jurisdiction in certain cases. But a justice of the peace cannot take cognizance of a civil action in either of thi following cases: 1. Where the people of the state are a party, except for one or more fines or penalti'-i not exceeding two hundred dollars, or for premiums due the insurance fund under the workmen's compensation law not exceeding two hundred dollars. 2. Where the title to real property comes in question as prescribed in article eight. JUEISDICTION". 359 3. Where the action is to recover damages for an assault, battery, false imprison- ment, libel, slander, criminal conversation, seduction, or malicious prosecution. 4. Where the action is brought against the surviving husband or wife of the decedent, and the next of kin of the intestate, or the next of kin or legatees of the testator, to recover, to the extent of the assets paid or distributed to them, for a debt of the decedent, upon which an action might have been maintained against an executor or administrator. 5. Where the action is brought by the executor or administrator of the decedent to recover damages for the wrongful act, neglect or default, by which the decedent's death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent by reason thereof if death had not ensued. 6. Where the action is brought by the people of the state for the spoliation, conver- sion or misappropriation of public money, funds, credits or other property. 6. In a city of the second' class adjoining a city of a population of one million or more, a justice of the peace shall not take cognizance of a civil action for the recovery of rent or the rental value of real property or of a summary proceeding to recover the possession of real property. [This subdivision was added by L. 1921, chap. 200, as subdivision 6, although the original act (contained a subdivision 6.) 7. Where the action is brought under sections twenty-eight or one hundred and one of the decedent estate law. 8. Where, in a matter of account, the sum total of the accounts of both parties, proved to the satisfaction of the justice, exceeds four hundred dollars. 9. Where the action is brought against an executor or administrator as such, except as provided in the last section. § 5. Confession of judgment. A justice of the peace also has jurisdiction to render judgment, upon the confession of a defendant, as prescribed herein where the sum confessed does not exceed five hundred dollars. 5-a. A justice of the peace has jurisdiction in proceedings for the summary removal of persons from real property as prescribed in article eighty-three of the civil practice act. Such proceedings shall be taken in accordance with the provisions of said article so far as applicable to courts of justices of the peace. [Added, L. 1921, chap. 200.] § 6. Action by person specially aggrieved. Where a penalty or forfeiture is given by a statute, to a person aggrieved by the act or omission of another, the person to whom it is given, if it is pecuniary, may main- tain an action to recover the amount thereof; or, if it consists of the forfeiture of a chattel, he may maintain an action to recover the chattel, or its value, or other damages, as the ease requires. § 7. Action by comimon informer. Where a penalty or forfeiture is given by a statute to any person who sues therefor, an action to recover it may be maintained by any person in his own name; but the action cannot be compromised or settled without the leave of the court in which it is brought. § 8. When part of a penalty may be recovered. Where a statute gives a pecuniary penalty or forfeiture, not exceeding a specified sum, an action may be maintained to recover the sum specified and the verdict or judg- ment may award to the plaintiflF the whole sum, or such a part thereof, as the jury or court deems proportionate to the oflFense. 360 JUSTICE COURT ACT. § 9. When action not barred by a collusive recovery. In an action to recover a penalty or forfeiture, given by a statute, brought by any person, other than the person aggrieved or a public officer, the plaintiff may recover, notwithstanding the recovery of a judgment, for or against the defendant in an action brought therefor by another person if he establishes that the former judgment was recovered coUusively and fraudulently. § 10. Where action must be brought An action must be brought before a justice of a town or city wherein one of the parties resides or a justice of an adjoining town or city in the same county, except in one of the following cases: 1. Where the defendant has absconded from his residence, it may be brought before a justice of the town or city in which the defendant, or a portion of his property, is at the time of the commencement of the action. 2. Where the plaintiff is not a resident of the county, or if there are two or more plaintiffs when all are non-residents thereof, it must be brought in the town where the defendant resides or in any adjoining town thereto. 3. Where the defendant is a non-resident of the county, it may be brought before a justice of the town or city in which he is at the time of the commencement of the action. 4. Where it is specially prescribed by law that a particular action may be brought before a justice of the town, city, county, or district, where an offense was committed or where property is found. 5. In any town adjoining an incorporated city or justice of such town shall have jurisdiction of any action brought against a resident of such adjoining city unless one of the parties plaintiff in such action is a resident of such town. A defendant designated in sections fffty-one, fifty-two, fifty-three and fifty-four of this act is deemed, for the purposes of this section, a resident of the town or city where the person to whom a copy of the summons is delivered resides. § 11. Actions generally; by or against whom brought. An action cognizable by a justice of the peace may be brought by or against: 1. A corporation; 2. A natural person in his own right; 3. A town or county officer in his official capacity. g tS. Action by representative. An action cognizable by a justice of the peace may be brought by an executor, administrator, a trustee of an express trust, or a receiver in supplementary proceedings. § 13. Limitation of actions; objection, how taken. An action must be commenced after the cause of action has accrued within the period prescribed by law; but the objection that the action was not commenced within the time limited can be taken only by answer. S 14. Tavern-keepers disqualified. A justice of the peace who is an innholder or tavern-keeper engaged in the liquor traffic or at whose inn or tavern liquor is sold has no power or jurisdiction under any provision of this act; but if a judgment has been actually rendered by him before he became so disqualified, he may give a transcript thereof, or issue execution thereupon, or satisfy the judgment, upon the payment thereof. § 15. Members of legislature not compelled to act. ,i : ' "; A justice of the peace who is a member of the senate or assembly is not obliged to take cognizance of a civil action or special proceeding; but he may take cognizance thereof in his discretion. ^ ' . i i. § 16. Justices must hold court. A justice of the paace must hold, within his town or city and not elsewhere, a court for the trial of any action or special proceeding brought before liim of which he has jurisdiction, excepting that a justice wlio is a' resident of an incorporated village located in two or more adjoining towns may hold court for the trial of aetioiis in any ■part of such incorporated village." • . . § 17. Justice's court not to be held in certain looms. A justice's court shall not be held in a room in any part of which trafficking in liquors is authorized or in any adjoining room. § 18. General powers and duties. A' justice of the peace must hear, try and determine an action or special proceeding brought before him according to law and equity, and for that purpose, where special provision is not otherwise made by law, is vested with all the necessary powers pos- sessed by the supreme court. § 19. Criminal contempt. A justice of the peace has power to punish for a oriminal contempt a person guilty of either of the following acts: 1. Disorderly, contemptuous or insolent behavior towards him while engaged in the trial of an action, the rendering of a judgment, or any other judicial proceeding, where such behavior directly tends to interrupt the proceedings or to impair the respect due to his authority. 2. Breach of the peace, noise or other disturbance directly tending to interrupt his official proceedings. 3. Resistance wilfully offered in his presence to the execution of his lawful mandate. He has not power to punish for a criminal contempt in any other case. § 20. Punishment for contempt Punishment for contempt specified in the last section may be by fine not exceeding twenty-five dollars or by imprisonment in the county jail not exceeding five days, or both, in the discretion of the justice. Where a person is committed to prison for the non-payment of such a fine he must be discharged at the expiration of ten days; but where he is also committed for a definite time the ten days must be computed from the expiration of the definite time. § 21. Offender to be heard. A person shall not be punished by a justice of the peace for a contempt until an opportunity has been given him to be heard in his defense. And for that purpose the justice must issue a warrant directed generally to any constable of the county, requir- ing the constable to bring the offender before him. § 22. Record of conviction. A justice who convicts' a person of a contempt must within ten days after the con- viction make up, subscribe and file in the county clerk's office a record thereof stating therein the particular circumstances of the offense and the punishment awarded by him upon the conviction. 362 JUSTICE COUKT ACT. § 23. Requisites of commitmeiit. A warrant of commitment for a contempt must set forth the particular circumstances of the offense, otherwise it is void. § 24. Fine to be paid to overseer or superintendent of the poor. An officer who collects or receives a fine imposed by a justice of the peace for a contempt, must pay the money ,. within ten days thereafter, for the benefit of the poor to the overseer, or superintendent of the poor of the town, city or district wherein the ■ fine was imposed; or, where there is no such officer, to the officer or officers performing corresponding functions under another name, unless the board of supervisors h^s directed the payment of fines and penalties to the supervisor of the town in a case where it is authorized by law so to do. PAETIES TO ACTION. 363 ARTICLE 2. FABITES TO ACTION. fiBcnoN 25. Who may be joined as plaintiffs. 26. Who may be joined as defendants. 27. Party in interest to sue; trustee may sue alone. 28. Actions and proceedings by and against married women. 29. Parties severally liable. 30. Joinder does not affect other relief. 31. Eight of infant to bring action. 32. Parties may appear in person or by attorney! 33. Who may be attorney. 34. Authority of attorney; how proved. 35. Guardian ad litem for infant plaintiff. 36. Guardian ad litem for infant defendant.* 37. Application for leave to prosecute or defendant as a poor person. 38. Contents of petition. 39. When and how leave granted. 40. Not liable tor costs and fees. 41. When leave may be revoked. 42. Costs in favor of petitioner. 43. Appeal, how affected by order. § 25. Who may be joined as plaintiffs. All persons having an interest in the subject of the action and in obtaining the judgment demanded may be joined as plaintiffs, except as otherwise expressly pre- scribed in this act. § 26.-Who may be joined as defendants. Any person may be made a defendant who has or claims an interest in the contro- versy adverse to the plaintiff, or who is a necessary party defendant for the complete determination or settlement of a question involved therein. § 27. Party in interest to sue; trustee may sue alone. Every action must be prosecuted in the name of the real party in interest, except that an executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted. A person with whom or in whose name a contract is made for the benefit of another is a trustee of an express trust within the meaning of this section. § 28. Actions and proceedings by and against married women. In an action or special proceeding a married woman appears, prosecutes or defends alone or joined with other parties as if she was single. It is not necessary or proper to join her husband with her as a party in any .action or special proceeding affecting her separate property. The husband is not a necessary or proper party to an action or special proceeding to recover damages to the person, estate or character of his wife. The husband is not a necessary or proper party to an action or special proceeding to • So in original. U4 smftQ-^ mu^T -Aw: recover damages to the person, estate or character of another on account of the wrong- ful acts of his wife committed without his instigation. § 29. Parties severally liable. ■'' ''^ ■ ' "^ '■ Two or more persons severally li^bl,e, upon, thei same written instrument, including the parties to a bill of exchange or a promissory note, whether the action is brought upon the instrument or by a party thereto to recover against other parties liable oyer; to him, may be included, all or any of them, as defendants in the same action at the option of the plaintiil'. ,,,;,. . .. ,j(y, , § 30. Joinder does not a'ffec't otltier t^iei. The joinder of a person as defendant in an action with another person, as prescribed in the last section, does not affect his right to any order or other relief to, which he would have been entitled if he had been separately sued in the action. § 31. Right of infant to bring action. Where an infant has a right of action he is entitled to maintain an action thereon, and the same shall not be deferred or delated on account of his infancy. § 32. Parties amy appear in' petson ar hy- attorney. A party to an action before a justice of the peace, who is of full age, may appear and prosecute or defend the same in person or by attorney at his election unless he has been judicially declared to be incompetent to manage his affairs. § 33. Who may be attorney. Subject to the provisions of sections two hundred and seventy-one and, two_ hundred and seventy-two of the penal law, any person, other than the constable who served the summons or the venire or the law partner or clerk tit the justice, may be the attorney for a party tp an aotipnbefgre-.ajjustieebf the peace. • ' § 34. Authority of attorney; how proved. The justice shall not permit a person to appear as attorney unless his authority is proved by the affidavit or oral testimony of himself or another or admitted by the adverse party. Such authority may be conferred orally or in writing. § 35. Guardian ad litem for infant plaintiff. Before a summons is issued in behalf of, or an issue is joined without summons by, an infant plaintiff, the justice,- musi; .appoint a competent and responsible person, nominated by, the plaintiff or, his general guardian, to appear as his guardian for the purpose, of the action. The written consent of the person so appointed must be filed with the justice before his appointment, The guardian so appointed is responsible for the costs. § 36. Guardian ad litem for infant defendants. After the service and return of a Summons against an infant defendant, no other proceeding shall be taken in the adtion, imtil a person has been appointed to appear as his gfuardian for the purpose of the action. Upon the nomination of the defendant the justice must appoint a proper person for that purpose. If the defendant does not appear upon the return of the summons, or if he neglects or refuses to nominate, the justice, on the application of the plaintiff, may appoint any proper person as his guardian. The Written consent of the person so appointed must be filed with the justice before his appointment. The guardian so appointed is not responsible for any costs. PAETIES TO ACTION". 365 § 37. Application for leave to prosecute or defend as a poor person. A person who alleges that he has a cause of action against another person, or an interest in property which is the subject of an action, may apply by petition to the justice before whom the action is pending, or before whom it is intended to be brought, for leave to prosecute or defend as a poor person. § 38. Contents of petition. The petition must state: 1. The nature of the action brought or intended to be brought, and the interest of the petitioner therein. 2. That the applicant is not worth one hundred dollars besides the wearing apparel and furniture necessary for himself and his family, and the subject-matter of the action. It must be verified by the applicant or, if he is under the age of fourteen years, by his guardian ad litem, and must be supported by a certificate of a registered attorney to the effect that he has examined the case and is of the opinion that the applicant has a good cause of action or defense. § 39. When and how leave granted. The justice to whom the petition is presented, if satisfied of the truth of the facts alleged, and that the applicant has a good cause of action or defense, may by order admit him to prosecute or defend as a poor person. § 40. Not liable for costs and fees. A person so admitted may prosecute or defend his action without paying fees to any ofFcer or juror; and he sha'.l not bo prevented from prosecuting or defending the same by reason of his being liable for the costs of a former action between the same parties. A judgment rendered against him shall not include costs. § 41. When leave'may be revoked. If the person so admitted is guilty of improper conduct in the prosecution or defense of his action of of wilful or unnecessary delay, the justice may in his discretion revoke the order admitting him to prosecute or defend as a poor person; and he shall there- after be deprived of all the privileges conferred thereby. § 42. Costs in favor of petitioner. Where costs are awarded to a person who has been admitted to prosecute or defend as a poor person, and collected from the adverse party, they must be paid over to the officer or juror entitled thereto as prescribed in this act. § 43. Appeal, how affected by order. A party cannot take or maintain an appeal as a poor person, but where an appeal is taken by the adverse party, an order under this article is applicable in favor of the petitioner as respondent on the appeal. 366 JUSTICE COURT ACT. AUTIGLX: 3. COHMENGEUENT OF ACTION. Section 44. Action; how commenced. 45. Contents of summons. 46. Summons, when returnable. 47. Complaint may accompany sxmimons. 48. Service of summons. 49. Indorsement upon summons. 50. Service of summons on a domestic municipal corporation. 51. Service on other corporations. 52. Service on a person or partnership doing business in a county other than that of residence. 53. Service upon railroad corporations. 54. Service on express, insurance and telegraph companies. 55. Last two sections qualified. 56. Second and third summons; effect thereof. 57. Where name of defendant is unknown. 58. Return of summons. 59. Designation for service when person absent. § 44. Action; how commenced. An action is commenced before a justice of the peace: 1. By the service of a summons; or , 2. By the voluntary appearance of the parties and the filing of the complaint, either with or without a joinder of issue. § 45. Contents of summons. The summons must be directed generally to any constable of the county where thft justice, resides; and it must command him to summon the defendant to appear before the justice at a place specified therein to answer the complaint of the plaintiff in a civil action. § 46. Summons, when returnable. A summons must be made returnable at a time therein specified, not less than six nor more than twelve days after the day of its issue; except that where it is accom- panied with an order to arrest the defendant, it must be made returnable immediately upon his arrest, and within twelve days after the day of its issue. A summons shall not be returnable on a legal holiday. § 47. Complaint may accompany summons. A copy of the complaint may be served with the summons. § 48. Servcie of summons. Personal service of the summons must be made by delivering a copy thereof to the defendant; except where it is specially prescribed in this act that personal service may be made by delivering a copy to another person. Where service of a summons is personal, it must be made at least six days before the time of appearance specified therein; except where it is accompanied with an order of arrest. COMMENCEMENT OF ACTION. 367 § 49. ludoisement upon summons. In an action to recover a penalty or forfeiture, given by a statute, if a copy of the complaint is not delivered to the defendant with a copy of the summons, a general reference to the statute must be indorsed upon the copy of the summons bo delivered in the following form: "According to the provisions of," etc.; adding such a descrip- tion of the statute as will identify it with convenient certainty, and also specifying the section, if penalties or forfeitures are given in different sections, thereof, for dif- ferent acts or omissions. § 50. Seivice of summons on a domestic municipal corporation. Personal service of a summons on a domestic municipal corporation must be made by delivering a copy thereof anywhere within the state as follows: 1. If the action is against a city, to the mayor, eomp troller, treasurer council, attor- ney or clerk; or if the city lafks either of those oflficers to the oflScer performing corresponding functions under another name. 2. If the action is against a village, to the president, clerk, or any trustee thereof. 3. If the action is against a county, to the chairman or clerk of the board of supervisors. 4. If the action is against a town, to the supervisor, town clerk, or any justice of the peace thereof. 5. If the action is against a school district, to any member of the board of education, any trustee, the secretary or clerk. § 51. Service on other corporations. Where the defendant to be served is a corporation other than a domestic municipal corporation, personal service of the summons must-be made by delivering a copy thereof anywhere within the state, as follows: li If the defendant be a domestic corporation, to the president or other head of the corporation, the secretary or clerk; the cashier, treasurer, a managing agent, or any director or trustee, by whatever official title he is called. 2. If the defendant be a foreign corporation, to the president, treasurer or secretary ; or, if the corporation lacks either of these officers, to the officer performing correspond- ing functions under another name; or, to the cashier, a director or managing agent of the corporation; or, to a person designated for the purpose as provided in section six- teen of the general corporation law. § 52. Service on a person or partnership doing business in a county other than that of residence. Where the defendant to be served is a person, or an unincorporated company or partnership, doing business in a county other than that in which such person resides, or in which such company or partnership has its principal place of business, personal service of the summons may be made by delivering a copy thereof any where within the state to a managing agent of such person, partnership or company, by whatever official title called. § 53. Service upon railroad corporations. Where the defendant to be served is a railroad corporation and no officer thereof resides in the county to whom a copy of the summons may be delivered as prescribed' in the foregoing sections of this article, it may be personally served by delivering a copy thereof to a local superintendent of repairs; freight agent, agent to sell tickets, or station keeper of the corporation, residing in the county; unless, at least thirtv days before it was issued, the corporation had filed in the office of the clerk of the coimty a written instrument designating a person residing in the county upon whom 368 JUSTICE eOUET ACT. process to be issued by a justice of the peace against it may be served; in which case, the summons may be personally served by delivering a copy to the person so designated. § 54. Service on express, insurance and telegraph companies. Where the defendant to be served is a corporation, association, partnership or person doing business in the state as an express company, an insurance company, or a telegraph company, and no person resides in the county to whom a copy of the summons may be delivered, as prescribed in the foregoing sections of this article, it may be person- ally served on the express company by delivering a copy thereof to any local or gen- eral agent to receive freight or parcels, route agent, or messenger of the defendant, residing in the county, and on any insurance company by delivering a copy thereof to any local or general agent of the defendant, residing in the county, and on any tele- graph company by delivering a copy thereof to any office manager of the defendant, residing in the county; unless at least thirty days before it was issued, the defendant had filed in the off.ce of the clerk of the county a written instrument designating a person residing in the county upon whom process to be issued by a justice of the peace against the 'defendant may be served; in which case the summons may be personally served by delivering a copy thereof to the person so designated. § 55. Last two sections qualified. Where a petson has been designated, as prescribed in either of the last two sections, and the designation has been revoked, or it appears, by affidavit or the return of the constable to whom a summons has been duly delivered for service that the person designated is dead, or has ceased to reside within the county, or that he cannot, after due diligence, be found within the county so as to deliver a copy of the summons to njm; the original summons, or the second or third summons, issued as prescribed in the next section, may be served as if the designation had not been made. Such a desig- nation may be revoked by a writing, executed and filed in like manner as required for the purpose of making the designation. § 56. Second and third summons; efiect thereof. Where it appears, by the return of the constable to whom a summons has been duly delivered for service that it was not served for any cause, a second summons may be issued by the same justice, in the same action within twenty days after the first summons was issued; and, upon the like return thereof, a third summons may be issued within twenty days after the second was issued. The second or third summons, AS the ease may be, relates back to the time when the first summons was issued; and, with respect to all proceedings before actual service, the service thereof has the same effect as if the first summons had been seasonably served. For the purpose of issuing a new summons, as prescribed in this section, a previous summons may be returned upon the sixth or any subsequent day before the return day thereof. 5 57. Where name of defendant is unknown. Where the plaintiff is ignorant of the name, or part of the name, of a defendant, that defendant may be designated in the summons, and in any other process or pro- ceeding in the action by a fictitious name, or by so much of his name as is known, adding a description identifying the person intended. The person so designated must thereupon be regarded as a defendant in the action and is sufficiently described therein for all purposes. When his name, or the remainder of his name, becomes known, the justice before whom the action is pending must amend the proceedings already taken by the insertion of the true or full name in place of the fictitious name, or part of a name; and all subsequent proceedings must be taken under the name so inserted. COMMEWCEMEITT OF ACTION. 369 § 58. Return of summons. A constable who serves a summons, or a summons and complaint, must make and deliver to the justice, at or before the time when the summons is returnable, a written return thereof under his hand stating the time when, and the manner in which such service was made. A constable who fails seasonably to serve a summons, or a sum- mons and complaint, delivered to him for service must make a written return thereof under his hand stating such failure, and the reason thereof. § 59. Designation for service when person absent. An adult resident of the state may execute and acknowledge, in the manner reguired by law to entitle a deed to be recorded, a written designation of another resident of the state as a person on whom to serve a summons or any process or other paper for the commencement against him of a civil action or special proceeding during the absence from the United States of the person making it; and may file the same with the written consent of the person so designated, executed and acknowledged in the same manner, in the office of the clerk of the county where the person making the designation resides. The designation must specify the residence of the person making it, and also of the person designated, and it remains in force during the period specified therein, if any, or if no period is specified, for three years after the filing thereof, but it is revoked earlier by the death or legal incompetency of either of the parties thereto, or by the filing of a revocation thereof, or of the consent, executed and acknowledged in like manner. The, clerk must file and repord such a designation, consent or revoca' fion, and must note on the record of the original designation the filing and recording of a revocation. While the designation remains in force a summons or any process or other paper for the commencement of a civil action or special proceeding against such person may be served on the person so designated in like manner and with the effect as if it was 370 JUSTICE GOUET ACT. ABTICLE 4. OBDEB OF ABBESr. Section 60. Order of arrest; in what eases it may be granted. 61. In what actions. ' 62. On what papers. 63. Contents of order. 64. Copy of order and other papers to be served. 65. Duty of constable. 66. Return; when plaintiff notified must appear. 67. Constable to keep defendant in custody. 68. Motion to discharge from arrest. 69. Basis of application. 70. When defendant to be discharged. 71. Effect of discharging defendant. 72. When plaintiff must prove extrinsic facts. 73. Privilege from arrest. § 60. Order of arrest; in what case it may be granted. At the time when the summons is issued, in an action specified in the next section, the justice who issues the summons must, upon the application- of the plaintiff and upon compliance by him with the provisions of this article, grant an order for the arrest of the defendant in either of the following cases: 1. Where the defendant to be arrested is not a resident of the county. 2. Where the plaintiff is not a resident of the county; or, if there are two or more plaintiffs, where all are non-residents thereof. 3. Where it appears to the satisfaction of the justice, by the affidavit of the plaintiff or another person, that the defendant is about to depart from the county with intent not to return thereto. But such an order cannot be granted where the defendant against whom it is applied for is a female. § 61. In what action. An order of arrest can be granted only in an action brought for one or more of the following causes: 1. To recover a fine or penalty. 2. To recover damages for a personal injury of which a justice of the peace has jurisdiction; an injury to property including the wrongful taking, detention or con- version of personal property ; misconduct or neglect in office or in a professional employ- ment; fraud; or deceit. But this subdivision does not apply to a claim for damages in an action to recover a chattel. 3. To recover for money received, or to recover a chattel where it appears that the money was received, or that the chattel was embezzled or fraudulently misapplied, by a public officer, or by an attorney, solicitor or counsellor, or by an officer or agent of a corporation or banking association in the course of his employment, or by a factor, agent, broker or other person in a fiduciary capacity. § 62. On what papers. Where it appears to the justice, by the affidavit of the plaintiff or another person, that a sufficient cause of action exists against the defendant and that the case is ORDER OF ARREST. 371 iwithin the provisions of the last two sections, he must grant the order of arrest. But before granting it he must require a written' undertaking to the defendant on the part of the plaintiff with one or more sureties, approved by the justice, to the effect that, if the defendant recovers judgment, the plaintiff will pay all costs which may be awarded to the defendant and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking which must be at least one hundred dollars. § 63. Contents of order. The order must be subscribed by the justice and indorsed upon or attached to the summons. It must briefly recite the ground of arrest, and it must direct the constable who serves the summons to arrest the defendant, to bring him forthwith before the justice, and to notify the plaintiff of the arrest if he can do so with reasonable diligence. § 64. , Copy of Older and other papers to be served. A copy of the order of arrest and the papers on which it was granted and of the undertaking must be delivered by the constable to the defendant when the arrest is made. § 65. Duty of constable. . The constable at the time of serving the summons must execute the order of arrest by arresting the defendant and taking him forthwith before the justice. If the justice is absent or unable to try the actioii, the constable forthwith must take the defendant before another justice of the same town or city who must take cognizance of the action and proceed therein as if the summons had been issued and the order of arrest had been granted by him. § 66. Return; when plaintiff notified must appear. The constable executing the order of arrest forthwith must deliver to the justice the order, and a written return thereto, under his hand, stating the manner in which he has executed it, and either that he has notified the plaintiff or that he could not do so with reasonable diligence. If he returns that he has notified the plaintiff, the latter must appear within one hour after the defendant is brought before the justice; other- wise judgment of nonsuit must be rendered against him. § 67. Constable to keep defendant in custody. The constable executing the order, or another constable, by direction of the justice, must keep the defendant in custody until he is discharged by the order of the justice, or judgment is rendered in his favor; but the detention shall not, in any case, exceed twelve hours from the time when the defendant is brought before the justice, unless within that time a venire is issued or the trial of the action is commenced, or unless either is delayed with the express assent of the defendant. § 68. Motion to discharge from arrest, A defendant may apply to the justice for an order discharging him from arrest: 1. Without notice, on the appearance of the plaintiff. 2. At any time afterwards before judgment, on two days' written notice served per- sonally on the plaintiff, or on his agent or attorney who appeared for him. § 69. Basis of application. If the application be made on the return of the order, it must be founded on the complaint, if any, and the papers on which the order was granted. If the application be made on notice, it also may be founded on proof by affidavit on the part of the defendant, and if the defendant present such proof, it may be opposed by new proof 372 JUSTICE, COUKT ACT. by affidavit on the part of the plaintiff tending to sustain any ground of arrest recited in the order, but no other. An affidavit on behalf of the defendant, intended to be used by him on the application, must be served with the notice thereof. § 70. When defendant to be discharged. The justice must grant the application where it appears that the case is not one iif which an order of arrest is authorized by this article. The justice also on the defend; ant's application must grant an order discharging him from arrest, if the plaintiff fails to take out from the justice an execution on a judgment in his favor before the expira- tion of one hour after he is entitled thereto. § 71. Effect «f discharging defendant. The discharge of the defendant from arrest before judgment, as prescribed in the last section, or in section one hundred and eighty-four of this act, does not affect the juris- diction of the justice over the action which must proceed as if it had been commenced in the ordinary manner. His discharge from arrest after judgment, as prescribed' in the last section, does not affect the execution. § 72. When plaintiff must prove e2:trinsic facts. Where an order of arrest has been granted and executed, in a case specified in sub- division third of section sixty-one of this act, the plaintiff cannot recover upon a default, and the defendant is entitled to judgment upon a trial, unless the plaintiff establishes all the matters of fact which are required, by that subdivision to entitle him to an order of arrest. § 73. Privilege from arrest. ; I This article does not abridge or otherwise affect a privilege from arrest given, by law, or a right of action for the breach thereof. A privileged person is entitled to be discharged from arrest by the order of the justice before whom he is brought, upon proof by affidavit of the facts entitling him to a discharge; or he may apply for and obtain an order for his discharge from the county judge of the county where the arrest was made. The order must be made, upon proof by affidavit of the facts entitling thfe applicant to the discharge ; and the arrest and discharge are not a bar to a new arrest after the privilege has ceased. The court or judge may make the order without notice, or may require notice to be given to the constable, or to the plaintiff, or to both. ATTACHMEi;rT OF PEOPEKTY. 373 AETICLE 5. ATTACHMENT OF PEOPEKTY. Section 74. In what actions warrant of attachment may be granted. 75. What must be shown to procure a warrant. 76. Warrant; form and contents thereof. 77. Undertaking. 78. Warrant; how executefl. 79. Sale of perishable property. 80. Service of papers on defendant. 81. Undertaking by defendant; redelivery to him. 82. Claim by third person; bond and delivery thereon. 83. Action on bond. 84. When defendant may prosecute bond. 85. Return of warrant. 86. Motion to vacate or modify warrant. 87. Effect of vacating warrant. 88. Proceedings where summons not personally served. § 74. In what actions warrant of attachment may be granted. In an action brought before a justice of the peace a warrant of attachment against the property of one or more defendants must be granted upon the application of the plaintiff, as prescribed in this article, where the action is brought upon a judgment, or to recover for one or more of the following causes: 1. Breach of a contract, express or implied. 2. Wrongful conversion of personal property. 3. Any other injury to personal property in consequence of negligence, fraud, or other misconduct. § 75. What must he shown to procure a warrant To entitle the plaintiff to such a warrant he must show by affidavit to the satisfac^ tion of the justice as follows: 1. That a sufficient cause of action exists against the defendant to recover dam- ages for one or more or the causes specified in the last section. If the action is on a judgment, or to recover for breach of a contract, the affidavit must show that the plaintiff is entitled to recover a sum stated therein, over and above all counterclaims known to him. 2. That the defendant is a foreign corporation; or 3. Not a resident of the state; or 4. If the defendant is a natural person and a resident of the state, that he has departed or is about to depart from the county where he last resided, with intent to defraud his creditors or avoid service of a summons, or keeps himself concealed with the like intent; or 5. If the defendant is a natural person, that he has removed or is about to remove property from the county where he last resided, or from the county in which the action is brought, with intent to defraud his creciitors, or has assigned, disposed of or secreted, or is about to assign, dispose of or secrete property with the like intent; or 6. If the defendant is a domestic corporation, that it has removed or ig about to remove property from the county where it last kept its principal office, or from the 374 JUSTICE COUKT ACT. county in which the action is brought, with intent to defraud its creditors, or haa assigned, disposed of or secreted, or is about to assign, dispose of or secrete property with the like intent; or 7. If the defendant is an adult natural person and a resident of the state, that he has been continuously without the United States during the six months immediately before the application, and that he has not made a designation of a person on whom to serve a summons in his behalf as prescribed in section fifty-nine or that service on the person so designated cannot be made with due diligence in the county where the person making the designation resides. The afladavit must be filed with the justice when the warrant is granted. § 76. Warrant; form and contents thereof. The warrant must be granted by the justice who issues the summons at the time when the summons is issued, and it must be indorsed thereupon or annexed thereto. It must be subscribed by the justice, and must briefly recite the ground of the attach- ment. It must require the constable to whom the summons is delivered to attach, on or before a day specified therein which must be at least six days before the return day of the summons, and safely to keep as much of the defendant's goods and chattels, within his county, as will satisfy the plaintiff's demand with the costs and expenses, and to make return of his proceedings thereon to the justice at the time when the summons is returnable. The amount of the plaintiff's demand must be specified in the warrant as stated in the affidavit. • § 77. Undertaking. Before granting the warrant the justice must require a written undertaking to the defendant on the part of the plaintiff, with one or more sureties approved by the jus- tice, to the effect that, if the defendant recovers judgment or the warrant of attach- ment is vacated, the plaintiff will pay all costs which may be awarded to the defendant and all damages 'which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking, which must be at least two hundred dollars; and that if the plaintiff recovers judgment, he will pay to the defendant all money received by him from property taken by virtue of the warrant of attachment, or upon any bond given therefor, over and above the amount of the judgment, and interest there- upon. § 78. Warrant; how executed. The constable to whom the warrant of attachment is delivered must execute it at least six days before the return day of the summons by levying upon and taking into his custody so much of the goods and chattels of the defendant, not exempt from levy and sale by virtue of an execution, including money and bank notes, which he finds within his county, as will satisfy the plaintiff's demand, with the costs and expenses. He must safely keep the property attached, to be disposed of as prescribed in this article, and immediately must make an inventory thereof, stating therein the esti- mated value of each item or article. § 79. Sale of perishable property. If property attached is perishable, the justice who issued the warrant, by an order made and entered upon his docket, and with or without notice as the urgency of the case in his opinion requires, may direct the constable to sell such property at public auction, and thereupon the constable must sell it accordingly. A certified copy of the order directing the sale shall be delivered to such constable. Such order must prescribe the time and place of the sale, and notice thereof must be given in such ATTACHMENT OF PEOPERTY. 375 manner and for such time aa directed by the order. The constable shall retain in his hands the proceeds of such sale until the final determination of the action. § 80. Service of papers on defendant. The constable, immediately after making the inventory and at least six days before the return day of the summons, must serve the summons, together with the warrant of attachment and inventory, upon the defendant by delivering to him personally a copy of each if he can, wilh reasonable diligence, be found within the county; or, if he cannot be so found, by leaving a copy of each, certified by the constable, at the last place of residence of the defendant in the county with a person of suitable age and discretion; or, if such a person cannot be found there, by posting it on the outer door, and also depositing another copy in the nearest post-office, inclosed in a sealed post-paid wrapper, directed to the defendant at his residence; or, if the defendant has no place of residence in the county, by delivering it to the person in whose possession the property attached is found. § 81. Undertaking by defendant; redelivery to him. The defendant, or his attorney or agent in his behalf, at any time before judgment is rendered in the action, may execute and deliver to the constable an undertaking to the plaintiff in a sum specified therein at least twice the value of the property attached as stated in the inventory, with one or more sureties approved by the con- stable or by the justice who issued the warrant, and to the effect that, if judgment is rendered against the defendant and an execution is issued thereupon, within six months after the giving of the undertaking, the property attached shall be produced to satisfy the execution. Thereupon the constable must redeliver the property to the defendant. § 82. Claim by third person; bond and delivery thereon. If ~a person not a party to the action claims any property attached which is not reclaimed by the defendant, as prescribed in the last section, he may, at any time after the seizure and before execution is issued upon a judgment rendered in the action, execute and file with the justice a bond to the plaintiff, with one or more sureties approved by the constable or by the justice, in a penalty at least twice the value of the property claimed, and conditioned that, in an action upon the bond, to be com- menced within three months thereafter, the claimant will establish that he was the general owner of the property claimed at the time of the seizure; or, if he fails so to do, that he will psiy to the plaintiff the value thereof, with interest. The constable must thereupon redeliver the property claimed to the claimant. § 83. Action on bond. A judgment for the plaintiff, in an action upon a bond, given as prescribed in the last section, must award to him the value of the property seized and delivered to the claimant, with interest thereupon from the time of the delivery. If the amount BO recovered exceeds the amount which the plaintiff recovers in the action in which the warrant of attachment was issued, he is liable to the defendant in that action for the excess. § 84. When defendant may prosecute bond. If the warrant of attachment is vacated Or annulled, the defendant may maintain an action upon the bond specified in the last two sections, in his own name, in the same manner and with the like effect as the plaintiff might have done if the warrant had -emained in full force. 376 JUSTICE COUET ACT. § 85. Return of warrant. The constable executing the warrant of attachment, at the time when and place it is returnable, must make a return thereto, under his hand, stating all his proceed-^ ings thereupon. He must deliver to the justice, with the return, each bond or under- taking delivered to him, pursuant to any of the foregoing provisions of this article, and a certified copy of the inventory of the property attached. The return must state the manner in which the warrant and inventory were served, and, if they were served otherwise than by delivering a copy thereof to the defendant personally, the reason therefor, and the name of the person to whom the copy was delivered, unless his name is unknown to the constable; in which case, the return must describe him so as to identify him, as nearly as may be. § 86. Motion to vacate or modify warrant. A defendant whose property has been attached, upon the return of the summons, may apply to the justice who issued the warrant of attachment, to vacate or modify it, or to increase the plaintiff's security. Such an application may be founded upon the papers upon which the warrant was granted, or upon proof by afT.davit on the part of the defendant, or upon both. If it is founded upon proof on the part of the defend- ant, it may be opposed by new proof by affidavit upon the part of the plaintiif tending to sustain any ground for the attachment recited in the warrant, but no other. The justice, upon the return of the summons or at any other time to which the action is adjourned, may vacate the warrant of attachment upon his own motion, if he deems the papers upon which it was granted insufficient to authorize it. § 87. Effect of vacating warrant. Vacating the warrant of attachment does not affect the jurisdiction of the justice to hear and determine the action where the defendant has appeared generally in the action; or whei-e the summons was personally served upon him; or where judgment may be taken against him as being indebted jointly with another defendant who has been thus summoned or has thus appeared. In every other case, the justice who vacates a warrant of attachment against the property of a defendant must dismiss the action as to him. § 88. Proceedings where summons not personally served. Where the defendant has not appeared, and the summons has not been personally served upon him, and property of the defendant has been duly attached by virtue of a warrant which has not been vacated, the justice must proceed to hear and determine the action; but, in an action subsequently brought, the judgment is only presumptive evidence of indebtedness and the defendant is not barred from any counterclaim against the plaintiff. The execution issued upon a judgment so rendered must require the constable to satisfy it out of the property so attached without containing a direc- tion to satisfy it out of any other property. KEPLEVm. 377 ARTICLE 6. gECTlON 89. When action for a chattel may be brought. 90. When it cannot be maintained. 91. After judgment against the plaintiff. 92. By an assignee. 93. Joinder of action with others. 94. Plaintiff may procure replevin; affidavit and undertaking. 95. Affidavit. 96. Where several chattels are to be replevied. 97. Plaintiff's undertaking for replevin. 98. When agent may make affidavit tor replevin or return. 99. Kequisition. ' ■ 100. How chattel to be replevied. 101. Chattel; how taken from a building. 102. Service of papers on defendant. 103. Replevied chattel; how kept. 104. Return of constable. 105. Defendant may except to sureties; proceedings thereon. 106. Defendant may reclaim chattel; proceedings thereon. . lOT. Claim of title by third person. 108. Action against constable upon such claim. 109. Indemnity to constable against such action. 110. Justification of sureties. 111. Damages when chattel is injured by defendant. 112. When and to whom constable must deliver. 113. Penalty for wrong delivery by constable. 114. Defendant may demand judgment for return. 115. Verdict. 116. Substitute in certain cases for finding as to value. 117. Final judgment. 118. Execution in replevin. 119. Constable's power to take chattel. 120. Action on undertaking. 121. Constable's return as evidence. 122. Injury no defense. 123. Proceedings when summons not personally served. 124. When action not affected by failure to replevy. § 89. When action for a chattel may be brought An action to recover a chattel with or without damages for the wrongful taking, withholding or detention thereof, can be brought before a justice of the peace of the county in which the chattel is found, as provided in this act. § 90. When it cannot be maintained. An action to recover a chattel cannot be maintained in either of the following cases t 1. Where the chattel was taken by virtue of a warrant against the plaintiff for the 378 .TUSTICE COUET ACT. collection of a tax assessment or fine issued in pursuance of a statute of the state or of the United States, unless the taking was, or the detention is, unlawful. 2. Where it was seized by virtue of an execution, or a warrant of attachment, against the property of the plaintiflF, unless it was legally exempt from such seizure or is unlawfully detained. 3. Where it was seized hy virtue of an execution, or a warrant of attachment, against the property of a person other than the plaintiJ, and at the time of the commence- ment of the action the plaintiff had not the right to reduce it into his possession. § 91. After judgment against the plaintiff. Where a chattel is replevied in an action to recover the same and a final judgment awarding the possession thereof to the defendant is rendered, a subsequent action to recover the same chattel cannot be maintainied by the plaintiff for the same cause of action. But the judgment does not affect his right to maintain an action to recover damages for taking or detaining the same or any other chattel unless it was rendered against him upon the merits. § 92. By an assignee. An action to recover a chattel, the title to which has been transferred to the plaintiff since the wrongful taking, or during the wrongful detention thereof, with or with- out the damages sustained by the taking, ■■ withholding, or detention, may be main- tained in any case, where, except for the transfer, such an action might be maintained, by the person from or through whom the plaintiff derives title; but not otherwise. § 93. Joinder of action with others. Nothing in this article is to be construed to prevent the plaintiff from uniting in the same complaint two or more causes of action in any case specified in section one hundred and thirty of this act. § 94. Plaintiff may procure replevin; affidavit and undertaking. The plaintiff, at the time when the summons is issued, but not afterwards, may require the chattel to be replevied, as prescribed in this article. For that purpose he must deliver to the justice an affidavit and an undertaking, as prescribed in this article, the sureties in the undertaking to be approved by the justice. § 95. Affidavit. The affidavit, to be delivered to the justice as prescribed in the last section, must particularly describe the chattel to be replevied, and must contain the following allegations : 1. That the plaintiff is the owner of the chattel, or is entitled to the possession thereof, by virtue of a special property therein; the facts with respect to which must be set forth. 2. That it is wrongfully detained by the defendant. 3. The alleged cause of the detention thereof according to the best knowledge, infor- mation and belief of the person making the affidavit. 4. That it has not been taken by virtue of a warrant against the plaintiff for the collection of a tax, assessment or fine issued in pursuance of a statute of the state or of the United States; or, if it has been taken under color of such a warrant, either that the taking was unlawful, by reason of defects in the process or other causes specified, or that the detention is unlawful, by reason of facts specified which have subsequently occurred. 5. That it has not been seized by virtue of an execution or warrant of attachment against the property of the plaintiff or of any person from or through whom the REPLEVIN". 379 plaintiff has derived title to the chattel since the seizure thereof; or, if it has been so seized, that it was exempt from the seizure, by reason of facts specified, or that its detention is unlawful, by reason of facts specified which have subsequently occurred. 6. Its actual value. § 96. Where several chattels are to be replevied. Where the affidavit describes two or more chattels of the same kind, it must state the number thereof, and where it describes a chattel in bulk, it must state the weight, measurement or other quantity. Where it describes two or more chattels to be replevied, it may, at the election of the plaintiff, state the aggregate value of all; or, separately, the value of any chattel or: of any class of chattels, and the aggregate value of the remainder, if any. Where it states separately the value of one or more chattels or classes of chattels, the defendant may require, as prescribed in the fol- lowing provisions of this article, the return of any or all of the chattels or classes of chattels, the value of which is thus stated, or of the portion thereof which has been replevied. If he procures such a return, the remainder must be delivered to the plain- tiff, except as is otherwise prescribed in this article. § 97. Plaintiff's undertaking for replevin. The undertaking to be delivered to the justice with a requisition to replevy a chattel must be executed by at least two sureties. It must be to the effect that the sureties are bound in a specified sum, not less than twice the value of the chattel as stated in the affidavit, for the prosecution of the action; for the return of the chattel to the defendant, if possession thereof is adjudged to him, or if the action abates, or is dis- continued, before the chattel is returned to the defendant; and for the payment to the defendant of any sum which the judgme.ii awards to him against the plaintiff. § 98. When agent may make affidavit for replevin or return. The affidavit, to be delivered to the justice in behalf of the plaintiff with a requisi- tion to replevy a chattel, may be made by the plaintiff's agent or attorney, if the material facts are within his personal knowledge; or if the plaintiff is not within the county where the attorney resides or has his office, or is not capable of making the aff.davit. The aff-davit, to be delivered to the justice either in behalf of the defendant, with a notice that he requires the return of the chattel, or in behalf of a person not a party who makes a claim thereto may be made by an agent or attorney, if the material facts are within his personal knowledge, or if the defendant or claim- ant, as the case may be, is not within the county where the property was replevied and capable of making the affidavit. Where the affidavit is made by an attorney or agent he must state therein what allegations, if any, are made upon his information and belief; and he must set forth therein the grounds of his belief as to all matters not stated upon his knowledge, and the reason why the affidavit is not made by the party or the claimant. § 93. Requisition. Upon receiving the affidavit and undertaking the justice must indorse upon or attach to the affidavit a written requisition, subscribed by him, requiring the con- stable to whom the summons is delivered to replevy the property described in the affidavit on or before a day specified in the requisition which must be at least six days before the return day of the summons. The affidavit and requisition must be delivered to the constable with the summons. § 100. How chattel to be replevied. If any chattel described in the affidavit is found in the possession of the defendant, or of his agent, the constable to whom an affidavit, requisition and summons are deliv- 380 justig;e couet act. ered, as prescribed in the foregoing sections of this article, must forthwith replevy .il. by taking it into his possession. -..;■. § 101. Chattel; how taken from a building. If any chattel described in the affidavit is secured or concealed in a building or inclosure, the constable must publicly demand its delivery. If it is not delivered piir-i. Buant to the demand, he must cause the building or inclosure to be broken open and must take the chattel into his possession. § 102. Service of papers on defendant. The constable must immediately after he replevies the property, and at least siX;; days before the return day of t'le summons, serve the summons, affidavit, requisition and undertaking on the defendant by delivering to him personally a copy of each, if he, can with reasonable diligence be found within the county ; or if he cannot be so found,, by leaving a copy of each, certified by the constable, at the last place of residence of, the defendant in the county with a person of suitable age and discretion; or if such person cannot be found there, by posting it on the outer door; and also depositing another copy in the nearest post-office inclosed in a sealed post-paid wrapper directed to the defendant at his residence; or if the defendant has no place of residence in' the county, by delivering it to the person in whose possession the property replevied is found. § 103. Replevied chattel; how kept A constable who has replevied a chattel must retain it in his possession, keeping i it in a secure place, until the person who is entitled to the possession thereof is ascer-'; tained, as prescribed in this article. He then must deliver it to that person, upon.i request and payment of his lawful fees, and necessary expenses for taking and keeping it, as taxed by a judge of the court, or the county judge of the county where the chattel was replevied, upon such a notice as the judge deems proper. § 104. Return of constable. The constable, on or before the return day of the summons, must make a return to the requisition under his hand stating all his proceedings thereupon, and file it with the affidavit and requisition with the justice. The return must state the manner in which the summons, affi.davit and requisition were served; and, if they were served otherwise than by delivering the requisite copies to the defendant personally, the reason therefor, and the name of the person to whom the copies were delivered, unless his name is unknown to the constable, in which case, the return must describe him 80 as to identify him, as nearly as may be. § 105. Defendant may except to sureties; proceedings thereon. At any time after the chattel has been replevied and at least two days before the return day of the summons, the defendant, unless he requires a return of the chattel, may serve upon the plaintiff, or upon the constable, a written notice that he excepts to the plaintiff's sureties; otherwise he is deemed to have waived all objections to them. If such a notice is served, the sureties must justify upon the return of the summons; or the plaintiff must then give a new undertaking to the same effect as the original undertaking, with other sureties, who must then appear and justify before the justice. § 106. Defendant may reclaim chattel; proceedings thereon. At any time before the return day of the summons the defendant, if he does rot except to the plaintiff's sureties, may serve on the justice a notice that he requires EEPLEVIN. 381 the return of the chattel replevied. With the notice he must deliver to the justice the following papers: 1. An affidavit containing an allegation either that the defendant is the owner of the chattel, or that he is lawfully entitled to the possession thereof by virtue of a special property therein, the facts with respect to which must be set forth. 2. An undertaking executed by at least two sureties to the effect that they are bound in a specified sum, not less than twice the value of the chattel as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff if delivery thereof is adjudged, and for the payment to him of any sum which the judgment awards against the defendant. The sureties in the undertaking must justify before the justice on the return of the summons. If the plaintiff has stated separately in his affidavit the value of one or more chattels or classes of chattels, as prescribed in section ninety-six of this act, the defendant may require a delivery of part of the property replevied, as pre- scribed in that section. § 107. Claim of title by third person. At any time before a chattel which has been replevied is actually delivered to either party, if a person, not a party to the action, claims, as against the defendant, a right to the possession thereof existing at the time when it was replevied, an affidavit may be made and delivered to the constable in his behalf, stating that he makes, such a claim; specifying the chattel or chattels to which it relates, if two or more chattels have been replevied, and the claim relates only to part of them; and setting forth the facts upon which his right of possession depends. In that ease the constable may in his discretion before he delivers the chattel to the plaintiff serve upon the plaintiff personally or upon plaintiff's attorney a copy of the affidavit with a notice that he requires indemnity against the claim. If the indemnity is not furnished within a reasonable time after the plaintiff becomes entitled to the delivery of the chattel the constable may in his discretion deliver it to the claimant without incurring any liability to the plaintiff by reason of so doing. § 108. Action against constable upon such claim. A person, not a party to the action, who has served an affidavit, as prescribed in the last section, may maintain an action against the constable who has delivered the chattel to the plaintiff to recover his damages by reason of the taking, detention or delivery of the chattel. But the summons in such an action must be issued within three months after the delivery of the chattel to the plaintiff, and must be served within three months after it is issued. An action cannot be maintained against a constable by a person so entitled to make a claim except as prescribed in this section. § 103. Indemnity to constable against such action. The indemnity to be furnished to the constable by the plaintiff, as prescribed in the last section, but one, must consist of a written undertaking to him executed by at least two sureties to the effect that they will indemnify him against any liability for damages, costs or expenses to be incurred in an action brought against him by the claimant, or a person deriving title from or through the claimant, by reason of the taking or detention of the chattel, or its delivery to the plaintiff, not exceeding a sum to be specified in the undertaking which must be not less than the actual value of the chattel claimed, and two hundred and fifty dollars in addition thereto, except that,' in any case, it need not exceed three hundred dollars. Each of the sureties, besides pos- sessing the other qualifications required by law, must be a freeholder or a householder of the constable's county. The constable before delivering the chattel may require the persons offered as sureties to submit to an examination, before the officer who 382 JUSTICE OOUKT ACT. takes the acknowledgment of the undertaking, aa where persons are offered to be substituted as defendants in an action, brought as prescribed in the last section, aa if the chattel had been levied upon by virtue of an execution. § 110. Justification of suieties. The examination of the sureties on a justification pursuant to the provisions of this article, must be on five days' notice to the persons who executed the undertaking. For the purpose of justification, each of the sureties must attend before the justice at the time and place mentioned in the notice, and be examined on oath touching his suf- ficiency, in such manner as the justice thinks proper. If the justice finds the sureties sufficient, he must annex the examination to the undertaking and endorse his allow- ance thereon, and file them in his office. The constable is thereupon exonerated from liability. § 111. Damages when chattel is injured by defendant. Where the plaintiff recovers a chattel which was injured, or otherwise depreciated in value, while it was in possession or under the control of the defendant, under such circumstances that the plaintiff might recover damages for the injury or depreciation in an action brought against the defendant therefor, he may recover the same damages in an action brought as prescribed in this article. In that case, he must set forth the facts in his complaint anld demand judgment for damages accordingly. § 112. When and to whom constable must deliver. If the defendant neither excepts to the plaintiff's sureties nor requires the return of the chattel within the time prescribed for that purpose, or if he fails to procure the allowance of his undertaking, or if the plaintiff, after the defendant has excepted to his sureties, duly procures the allowance of his undertaking, the constable must, except in the case specified in section one hundred and seven, immediately deliver the chattel to the plaintiff. If the plaintiff, after the defendant has excepted to his sureties, fails to procure the allowance of his undertaking, or if the defendant, after he has required the return of the chattel, procures the allowance of his undertaking, the constable must deliver the chattel immediately to the defendant. § 113. Penalty for wrong delivery by constable. A constable who delivers to either party, without the consent of the other, a chattel replevied by him, except as prescribed in the last section, or, by virtue of an execution issued upon a judgment in the action, forfeits to the party aggrieved the sum of one hundred dollars; and is also liable to him for all damages which he sustains thereby. § 114. Defendant may demand judgment for return. Where a chattel has been replevied and the defendant has not required the return thereof pending the action, as prescribed in the foregoing sections of this article, he may demand judgment in his answer for the return thereof either with or without damages for the taking, withholding or detention. § 115. Verdict. The verdict or judgment must fix the damages, if any, of the prevailing party. Where it awards to the plaintiff a chattel which has not been replevied, or where it awards to the prevailing party a chattel which has been replevied and afterwards delivered by the constable to the unsuccessful party or to a person not a party, it must also, except in a ease specified in the next section, fix the value of the chattel at the time of the trial. EEPLEVIN. 383 § 116. Substitute in certain cases for finding as to value. A verdict or judgment in favor of the defendant shall not fix the value of the chattel in either of the following cases: 1. Where the plaintiff is the general owner of the chattel; but it was rightfully distrained doing damage, and its value is greater than the damages sustained by the defendant, by the injury for which it was distrained; in which case, those damages must be fixed. 2. Where the plaintiff is the general owner of the chattel, but the defendant had a special property therein, and the value of the chattel is greater than the value of the special property, or the sum charged upon the chattel by reason thereof; in which case, the value of the special property, or the sum so charged, must be fixed. In either of the cases specified in this section, the verdict or judgment must set forth the reason why the value of the chattel is not fixed. § 117. Final judgment. Final judgment for the plaintiff in replevin must award to him possession of the chattel recovered by him with his damages, if any. If a chattel recovered was not replevied, or if, after it was replevied, it was delivered to the defendant, or to a person not a party, as prescribed in this article, the final judgment must also award to the plaintiff the sum fixed as the value thereof, to-be paid by the defendant if possession thereof is not delivered to the plaintiff. If the defendant has demanded judgment for the return of a chattel which was replevied and afterwards delivered to the plaintiff, or to a person not a party, as prescribed in this article, final judgment in his favor therefor must award to him possession thereof with his damages, if any; and it must also award to him the sum fixed as the value thereof, to be paid by the plaintiff if possession is not delivered to the defendant. But if the case is one where the verdict or judgment is not required to fix the value of the chattel, final judgment in favor of the defendant must award to him the stmi fixed as therein specified, and, if it is not collected, the delivery of the chattel; or, if the chattel has not been replevied or has been returned to him after replevin, that he is entitled to possession thereof until the sum so awarded is collected, or otherwise paid. § 118. Execution in replevin. An execution for the delivery of a chattel must particularly describe the property and designate the party to whom the judgment awards the possession thereof; and it must substantially require the constable to deliver the possession of the property within his county to the party entitled thereto. If a sum of money is awarded by the same judgment, it may be collected by virtue of the same execution; or a separate execution may be issued for the collection thereof, omitting the direction to deliver possession of the property. If one execution is issued for both purposes, it must contain, with respect to the money to be collected, the same directions as an execution against property, or against the person, as the case requires. An execution for the delivery of the possession of a chattel and to satisfy, out of the property of the judg- ment debtor, a sum of money contingently awarded against him, must contain, in addition lo the other matters prescribed by law, the following directions: 1. Where the judgment is rendered in favor of the defendant in a case specified in section one hundred and forty-seven of this act, the execution must require the con- stable to deliver possession of the chattel to the defendant, unless the plaintiff, before the delivery, pays to him the sum of money awarded to the defendant with interest and the constable's fees; and, in case the chattel cannot be found within his county, then to satisfy that sum out of the property of the plaintiff. 2. In any other ease, where the judgment awards a sum of money, if possession of 384 JUSTICE COURT ACT. the chattel is not delivered to the prevailing party, the execution must require the constable, if the chattel cannot be found within his county, to satisfy the sum so awarded with interest and his fees out of the property of the party against whom the judgment is rendered. A direction to satisfy a sum of money out of property, as pre- scribed in this section, must be in the form required by law for a like direction, where an execution against property is issued upon a judgment for a sum of money. § 119. Constable's power to take chatteL For the purpose of taking possession of a chattel by virtue of an execution, the powers of the constable are the same as where he is required to replevy a chattel. § 120. Action on undertaking. A plaintiff who has recovered a final judgment cannot maintain an action against the sureties in an undertaking given in behalf of the defendant to procure a return of the chattel until after the return, wholly or partly unsatisfied or unexecuted, of an execu- tion in his favor for the delivery of the possession of the chattel, or to satisfy a sum of money out of the property of the defendant, or for both purposes, as the case requires. A defendant who has recovered a final judgment cannot maintain an action against the sureties in the plaintiff's undertaking given to procure a replevin until after a like return of a similar execution against the plaintiff. § 121. Constable's return as evidence. In an action against the sureties in an undertaking given in replevin the constable's return to the execution is presumptive evidence of a failure to deliver, or to return a chattel, or to pay a sum of money, according to the terms of the undertaking. § 1C2. Injury no defense. It is not a defense to an action on the undertaking in replevin that the chattel was injured or destroyed after it was replevied, unless the injury or destruction was effected by the act, or with the consent of the plaintiff in the action, or occurred after the chattel was taken by virtue of the execution. § 123. Proceedings when summons not personally served. Where the defendant does not appear, and the summons has not been personally served upon him, and a chattel, or part of a chattel, to recover which the action is brought, has been replevied, and the proceedings thereupon have been duly taken, as prescribed in this article, the justice must proceed to hear and determine the action, with respect to that chattel or part of a chattel; or, if the action is brought to recover two or more chattels, with respect to those which have been replevied, in like manner and with like effect as if the summons had been personally served. § 124. When action not affected by failure to replevy. Where the summons has been personally served upon the defendant, or where he appears, the justice must proceed to hear and determine the action, although the p'.aintiff has not required the chattel to be replevied, or the constable has not been able to replevy it. PLEADING. 385 ARTIOLE 7. Section 125. When issue to be joined. 126. Pleadings. 127. General rules of pleading. 128. First pleading to be complaint. 129. Complaint. 130. What causes of action may be joined. 131. Defendant must demur or answer. 132. When he may demur. 133. Demurrer to complaint must specify objection. 134. Demurrer and answer to same complaint. 135. Decision on demurrer. 136. Answer to verified complaint. 137. Answer to unverified complaint. 138. Counterclaim. 139. Rules respecting allowance of counterclaim. 140. Consequence of neglect to plead counterclaim. 141. The last section qualified. 142. Counterclaim when defendant is sued in a representative capacity. 143. Counterclaim when plaintiff is an executor or administrator. 144. When plaintiff may demur to answer. 145. Demurrer to counterclaim. 146. Demurrer to counterclaim must specify objection. 147. When objection may be taken by answer. 148. Objection; when deemed waived. 149. Account, or instrument for payment of money. 150. When complaint may be verified. 151. When answer to be verified. 152. Requirements concerning verified pleadings. 153. Verification; how and' by whom made. 154. Form of affidavit of verifications. 155. Remedy for defective verification, or want of verification. 156. When allegations deemed admitted. 157. Amendment of pleadings. 158. Account; how pleaded; bill of particulars. 159. Private statute; how pleaded. 160. Pleading mitigating circumstances in action for a wrong. 161. Judgments; how pleaded. 162. Conditions precedent; how pleaded. 163. Pleadings to be liberally construed. 164. Material variances; how provided for. 165. Immaterial variances; how provided for. 166. What to be deemed a failure of proof. 167. Partial defenses. 168. When defendant to demand affirmative judgment. 169. When pleadings admit part of plaintiff's claim to be just, action may be . severed. 170. Complaint in actions by or against corporations. 171. Misnomer, when waived. 386 JUSTICE COUET ACT. § 125. When issue to be joined. Pleadings must be made and issue joined: 1. At the place and within one hour after the time specified in the summons for the return thereof; or 2. Where an order of arrest has been executed, within twelve hours after the defendant is brought before the justice; or 3. Where no summons is issued, within one hour after the time when the parties voluntarily appear for the purpose of commencing an action, unless the defendant within such time files with the justice a stipulation that the plaintiff may take judg- ment as therein stated. Where both parties appear on the return of the summons, an issue must be joined before an adjournment is had, except when the defendant refuses or neglects to plead. § 126. Pleadings. The pleadings in a justice's court are: 1. The plaintiff's complaint; 2. The defendant's answer; 3. The defendant's demurrer to the complaint, or to one or more distinct causes of action, separately stated therein; 4. The plaintiff's demurrer to the answer, or to one or more defenses or counter- claims stated in the answer. § 127. General rules of pleading. A pleading, except as otherwise prescribed in section two hundred and ten of this act, may be oral or written. If it is oral the substance thereof must be entered by thij justice in his docket-book, if it is written it must be filed by him and a reference to it made in his docket-book. A pleading is not required to be in any particular form; but it must be expressed so as to enable a person of common understanding to know what is intended. § 128. First pleading to be complaint. The first pleading on the part of the plaintiff is the complaint. § 129. Complaint. The complaint must state in a plain and direct manner the facts constituting the cause of action. § 130. What causes of action may be joined. The plaintiff may unite in the same complaint two or more causes of action where they all arise out of: 1. The same transaction or transactions connected with the same subject of action; or 2. Contract, express or implied; or 3. Personal injuries, and injuries to property, or either. But it must appear upon the face of the complaint that all the causes of action ao united belong to one of the foregoing subdivisions of this section; that they are con- sistent with each other; that they require the same judgment; and, except as other- wise prescribed by law, that they affect all tffe parties. § 131. Defendant must demur or answer. The only pleading on the part of the defendant is either a demurrer or an answer. § 132. When he may demur. The defendant may demur to the complaint where one or more of the following objections thereto appear upon the face thereof: PLEADING. 387 1. That the court has not jurisdiction of the person of the defendant. 2. That the court has not jurisdiction of the subject of the action. 3. That the plaintiff has not legal capacity to sue. 4. That there is another action pending between the same parties for the same cause. 5. That there is a misjoinder of parties plaintiff. 6. That there is a defect of parties, plaintiff or defendant. 7. That causes of action have been improperly united. 8. That the complaint does not state facts sufBcient to constitute a cause of action. § 133. Demurrer to complaint must specify objection. The demurrer must distinctly specify the objections to the complaint; otherwise it may be disregarded. An objection taken under subdivision one, two, four or eight of the last section may be stated in the language of the subdivision; an objection taken under either of the other subdivisions must point out specifically the particular defect relied on. § 134. Demurrer and answer to same complaint. The defendant may demur to the whole complaint or to one or more separate causes of action stated therein. In the latter case he may answer the causes of action not demurred to. § 135. Decision on demurrer. If the court deems the demurrer well founded, it must permit the pleading to bo amended; and if the party fails so to amend, the defective pleading, or part of a pleading, demurred to must be disregarded. If the court deems the demurrer not well founded, it must permit the party making it to plead over, at his election. § 136. Answer to verified complaint. If the complaint is verified, the answer of the defendant must contain: 1. A general or specific denial of each material allegation of the complaint contro- verted by the defendant or of any knowledge or information thereof suflScient to form a belief; 2. A statement of any new matter constituting a defense or counterclaim m ordinary and concise language without repetition. § 137. Answer to unverified complaint. If the complaint is not verified, the answer may contain a general denial of each allegation of the complaint or a specific denial of one or more of the material alle- gations thereof. It may also set forth in a plain and direct manner new matter con- stituting one or more defenses or counterclaims. § 138. Counterclaim. A counterclaim must tend in some way to diminish or defeat the plaintiff's recovery and must be one of the following causes of action against the plaintiff, or, in a proper case, against the person whom he represents, and in favor of the defendant, or of one or more defendants, between whom and the plaintiff a separate judgment may be had in the action: 1. A cause of action arising out of the contract or transaction set forth in the com- plaint as the foundation of the plaintiff's claim or connected with the subject of the action. 2. In an action on contract, any other cause of action on contract existing at the commencement of the action. 388 JUSTICE COURT ACT. § 139, Sules respecting allowance of counterclaim. ^ut the counterclaim, specified in subdivision second of the last section, is subject to the' following rules: 1. If the action is founded upon a contract which liaa been assigned by the party thereto other than a negotiable promissory note or bill of exchange, a demand, existing against the party thereto, or an assignee of the contract, at the time of the assign- ment thereof, and belonging to the defendant in good faith before notice of the assign- ment, must be allowed as a counterclaim to the amount of the plaintiff's demand, if it might have been so allowed against the party or the assignee while the contract belonged to him. 2. If the action is upon a negotiable promissory note or bill of exchange which has been assigned to the plaintiff ailer it became due, a demand, existing against a person who assigned or transferred it after it became due must be allowed as a caunlerclaim to the amount of the plaintiff's demand, if it might have been so allowed against the assignor while the note or bill belonged to him. 3. If the plaintiff is a trustee for another or if the action is in the name of a plain- tiff who has no actual interest in the contract upon which it is founded, a demand against the plaintiff shall not be allowed as a counterclaim; but so much of a demand existing against the person whom he represents, or for whose benefit the action is brought, as will satisfy the plaintiff's demand must be allowed as a counterclaim, if it might have been so allowed in an action brought by the person beneficiaJly interested. 4. The court must have jurisdiction of a cause of action founded on the counterclaim. § 140. Consequence of neglect to plead counterclain. Where the defendant in an action to recover damages upon or for breach of a con- tract neglects to interpose a counterclaim consisting of a cause of action in his favor to recover damages for a like cause which might have been allowed to him upon the trial of the action, he, and every person deriving title thereto through or from him, are forever thereafter precluded from maintaining an action to recover the same or any part thereof. § 141. The last section qualified. But the prohibition contained in the last section does not extend to either of the following cases: 1. Where the amount of the counterclaim is two hundred dollars more than the judgment which the plaintiff recovers; 2. Where the counterclaim consists of a judgment rendered before the commence- ment of the action in which it might have been interposed; 3. Where the counterclaim consists of a claim for unliquidated damages; 4. Where the counterclaim consists of a claim upon which another action was pending at the time when the action was commenced; 5. Where judgment is taken against the defendant without personal service of the summons upon him or an appearance by him. § 142. Counterclaim when defendant is sued in a representative capacity. In an action against an executor or an administrator, or other person sued in a representative capacity, the defendant may set forth as a counterclaim a demand he- longing to the decedent, or other person whom he represents, where the person so represented would have been entitled to set forth the same in an action against him. § 143. Counterclaim when pl^aintiff is an executor or administrator. In an action brought by an executor or administrator in his representative capacity, a demand against the decedent, belonging at the time of his death to the defendant, PLEADING. 389 may be set forth by the defendant as a counterclaim as if the action had been brought by the decedent in his life time; and, if a balance is found to be due to the defendant, judgment must be rendered therefor against the plaintiif in his representative capacity. Execution can be issued upon such a judgment only in a case where it could be issued upon a judgment in an action against the executor or administrator. § 144. When plaintiff may demur to answer. The plaintiff may demur to a counterclaim or a defense consisting of new matter contained in the answer on the ground that it is insufficient in law on the face thereof. § 145. Demurrer to counterclaim. The plaintiff also may demur to a counterclaim on which defendant demands an affirmative judgment where one or more of the following objections thereto appear on the face of the counterclaim: 1. That the court has not jurisdiction of the subject thereof; 2. That the defendant has not legal capacity to recover on the same; 3. That there is another action pending between the same parties for the same cause; 4. That the counterclaim is not of the character specified in section one hundred and thirty-eight; 5. That the counterclaim does not state facts sufficient to constitute a cause of action. § 146. Demurrei to counterclaim must specify objection. ■ A demurrer taken under the last section must distinctly specify the objections to the counterclaim; otherwise it may be disregarded. The mode of specifying the objections is the same as where a demiu-rer is taken to a complaint. § 147. VTTien objection may be taken by answer. Where any of the matters enumerated in section one hundred and thirty-two as grounds of demurrer do not appear on the face of the complaint the objection may be taken by answer. § 148. Objection; when deemed waived. If such an objection is not taken either by demurrer or answer, the defendant is deemed to have waived it; except the objection to the jurisdiction of the court, or the objection that the complaint does not state facts sufficient to constitute a cause of action. § 149. Account, or instrument for payment of money. For the purpose of setting forth a cause df action, defense or counterclaim founded on an account, or an instrument for the payment of money only, it is sufficient for the party to deliver the instrument or a copy of the account to the court, and to state that there is due to him thereupon from the adverse party a specified sum which he claims to recover or to set off; or he may set forth a copy of the instrument and state that there is due to him thereon from the adverse party a specified surn which he claims. Such an allegation is equivalent to setting forth the instrument according to its legal effect. § 150. When complaint may be verified. In an action arising on a contract for the recovery of money only, or on an account, the complaint may be verified and served with the summons. § 151. When answer to be verified. When a verified complaint authorized by the last section is served with the sum- mons, the answer must also be verified. 390 JUSTICE COUKT ACT. § 152. Kequirements concerning verified pleadings. The allegations or denials in a verilied pleading must in form be stated to be made by the party pleading. Unless they are therein stated to be made on the information and belief of the party, they must be regarded, for all purposes, including a criminal prosecution, as having been made on the knowledge of the person verifying the plead- ing. An allegation that the party has not sufficient knowledge or information to form a belief with respect to a matter must, for the same purposes, be regarded as an allegation that the person verifying the pleading has not such knowledge or information. § 153. Verification; how and by whom made. The verification must be made by the affidavit of the party, or if there are two or more parties united in interest and pleading together, by at least one of them who is acquainted with the facts, except as follows: 1. Where the party is a domestic corporation, the verification must be made by an officer thereof. 2. Where the people of the state are, or a public officer in their behalf is, the party, the verification may be made by any person acquainted with the facts. 3. Where the party is a foreign corporation; or where the party is not within the county where the attorney resides, or, if the latter is not a resident of the state, the county where he has his office and capable of making the affidavit ; or, if there are two or more parties united in interest and pleading together, where neither of them, acquainted with the facts, is within that county and capable of making the affidavit; or wliere the action or defense is founded on a written instrument for the payment, of money only, which is in the possession of the agent or the attorney; or where all the material allegations of the pleading are within the personal knowledge of the agent or the attorney; in either case the verification may be made by the agent of or the attorney for the party. § 154. Form of affidavit of verification. The affidavit of verification must be to the effect that the pleading is true to the knowledge of the deponent except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. Where it is made by a person, other than the party, he must set forth in the affidavit the grounds of his belief as to all matters not stated upon his knowledge and the reason why it is not made by the party. § 155. Remedy for defective verification, or want of verification. The remedy for a defective verification of a pleading is to treat the same as an unverified pleading. Where the copy of a pleading is served without a copy of a suf- ficient verification, in a case where the adverse party is entitled to a verified pleading, he may treat it as a nullity, provided he gives notice with due dilegence to the adveraa party, or Iiis attorney, that he elects so to do. § 156. When allegations deemed admitted. Each material allegation of the complaint not controverted by the answer must for the purposes of the action be taken as true; but an allegation of new matter in the answer shall be deemed controverted by the adverse party by traverse or avoidance as the case requires. § 157. Amendment of pleadings. The court, upon application, must allow a pleading to be amended at any time before the trial, or during a trial, or upon appeal, if substantial justice will be promoted thereby. Where a party amends his pleading after joinder of issue, or pleads over PLEADING. 391 upon the decision of a demurrer, and it is made to appear to the satisfaction of the court, by oath, that an adjournment is necessary to the adverse party in consequence of the amendment or pleading over, an adjournment must be granted. The court may also in its discretion require, as a condition of allowing an amendment, the payment of costs to the adverse party. § 158. Account; how pleaded; bill of particulars. It is not necessary for a party to set forth in a pleading the items of an account or demand therein alleged; but the court, on the request of either party, made when issue is joined, may require the adverse party to exhibit his account or demand or to state the nature thereof, so far as it is in his power so to do, at that or another specified time. The court also may direct the party to deliver a further account where the one delivered is defective and in any case may direct a bill of the particulars of the claim of either party to be delivered to the adverse party. If the pleading is verified, the account or bill of particulars must also be verified in the same manner as a pleading. If a party fails to deliver an account or bill of particulars as directed, the court may preclude him from giving evidence of the parts of his account or demand not so exhibited or stated. § 159. Private statute; how pleaded. In pleading a private statute, or a right derived therefrom, it is sufiScient to designate the statute by its chapter, year of passage and title, or in some other manner with convenient certainty, without setting forth any of the contents thereof. § 160. Pleading mitigating circumstances in action for a wrong. , In an action to recover damages for a personal injury or an injury to property, the defendant may prove at the trial facts not amounting to a total defense tending to mitigate ■ or otherwise reduce the plaintiff's damages, if they are set forth in the answer, either with or without one or more defenses to tTie entire cause of action. § 161. Judgments; how pleaded. In pleading a judgment or other determination of a court or officer of special juris- diction, it is not necessary to state the facts conferring jurisdiction; but the judg- ment or determination may be stated to have been duly given or made. If that allegation is controverted the party pleading must on the trial establish the facts conferring jurisdiction. § 162.-Conditions precedent; how pleaded. In pleading the performance of a condition precedent in a contract it is not necessary to state the facts constituting performance; but the party may state generally that he or the person whom he represents duly performed all the conditions on his part. If that allegation is controverted he must on the trial establish performance. § 163. Pleadings to be liberally construed. The allegations of a pleading must be liberally construed with a view to substantial justice between the parties. § 164. Material variances; how provided for. A variance between an allegation in a pleading and the proof is not material unless it has actually misled the adverse party to his prejudice in maintaining his action or defense on the merits. If a party insists that he has been misled, that fact, and the particulars in which he has been misled, must be proved to the satisfaction of the court; Thereupon the court may in its discretion order the pleading to be amended on such terms as it deems just. 392 JUSTICE COURT ACT. § 165. Immaterial variances; how piovided for. Where the variance is not material, as prescribed in the last section, the fact may be found according to the evidence, or the court may order an immediate amendment, without coats. § 166. What to be deemed a failure of proof. Where, liowever, the allegation to which the proof is directed is unproved, not in some particular or particulars only but in its entire scope and meaning, it is not a case of variance within the last two sections, but a failure of proof. § 167. Partial defenses. A partial defense may be set forth, but it must be expressly stated to be a partial defense to the entire complaint, or to one or more separate causes of action therein set forth. On a demurrer thereto the question is whether it is suflBcient for that purpose. Matter tending only to mitigate or reduce damages in an action to recover for a per- sonal injury, or an injury to property, is a partial defense within the meaning of this section. § 168. When defendant to demand afSrmative judgment. Where the defendant deems himself entitled to an affirmative judgment against the plaintiff by reason of a counterclaim interposed by him, he must demand the judgment in his answer. § 169. When pleadings admit part of plaintiff's claim to be just, action may be severed. Where the answer of the defendant expressly or by not denying admits a part of the plaintiff's claim to be just, the court, in its discretion, on the plaintiff's motion may order that the action be severed; that a judgment be entered for the plaintiff for the part so admitted; and, if the plaintiff so elects, that the action be continued with like effect as to the subsequent proceedings as if it had been originally brought for the remainder of the claim. The order must prescribe the time and manner of the plain- tiff's election. If the plaintiff elects to continue the action, his right to costs on the judgment is the same as if it were taken in an action brought for only that part of the claim. If the plaintiff does not elect to continue the action, costs must be awarded as on final judgment in any other case. § 170. Complaint in actions by or against corporations. In an action brought by or against a corporation, the complaint must aver that the plaintiff, or the defendant, as the case may be, is a corporation; must state whether it is a domestic corporation or a foreign corporation; and, if the latter, the state, country or government by or under whose laws it was created. But the plaintiff need not set forth, or specially refer to, any act or proceeding by or under which the cor- poration was created. § 171. Misnomer, when waived. In an action or special proceeding brought by or against a corporation, the defendant is deemed to have waived any mistake in the statement of the corporate name, unless the misnomer is pleaded in the answer or other pleading in the defendant's behalf. ANSWER OF, TITLE. 393 ARTICLE 8. ANSWEE OP TITLE. Section 172. Answer of title. 173. Undertaking. 174. In what court new action to be brought. 175. When action before justice to be discontinued. 176. Effect of failure to give undertaking. 177. When title comes in question on plaintiff's own showing. 178. Pleadings in new action. 179. Answer of title as to one of several causes of action. § 172. Answer of title. Tlie defendant, either with or without other matter of defense, may set forth in his answer facts showing that the title to real property will come in question in the action. Such an answer must be in writing, signed by the defendant, his attorney or agent, and must be verified if a verified complaint was, served as authorized by the last article. The answer must be delivered to the justice who must immediately countersign and deliver it to the plaintiff. § 173. Undertaking. The defendant must also deliver to the justice with the answer a written undertaking to the effect that if the plaintiff within twenty days thereafter deposits with the justice a summons and complaint in a new action for the same cause, to be brought in the proper court, the defendant will within twenty days after the deposit give a written admission of the service thereof. If the defendant was arrested in the action before the justice, the undertaking must also provide that he will at all times render himself amenable to any mandate which may be issued to enforce a final judgment in the action so to be brought. If the defendant fails to comply with the undertaking, iiis sureties are liable thereon to an amount not exceeding two hundred dollars. § 174. In what court new action to be brought. A new action as prescribed in the last section must be brought in the supreme court, or the county court of the justice's county, at the plaintiff's election. § 175. Wten action before justice to be discontinued. Upon the delivery of the undertaking to the justice, the action before him is discon- tinued and each party must pay his own costs. The costs so paid by either party must be allowed to him, if he recovers costs in the new action, to be brought as pre- scribed in the last two sections. If the plaintiff fails to deposit with the justice a summons and complaint in the new action before the expiration of twenty days after the delivery of the undertaking, the aef endant may mafntain an action against the plaintiff to recover his costs before the justice. § 176. Effect of failure to givs undertaking. If the undertaking is not delivered to the justice, he has jurisdiction of the action and must proceed therein; and the defendant is precluded in his defense from drawing the title in question. § 177. When title comes in question on plaintiff's own showing. If however, it appears, upon the trial from the plaintiff's own showing that the title to real property is in question and the title is disputed by the defendant, the justice 394 JUSTICE COURT ACT. must dismiss the complaint with costs and render judgment against the plaintiff accordingly. § 178. Pleadings in new action. In the new action, to be brought after an action before a justice is discontinued, by the delivery of an answer and an undertaking, as prescribed in the last six sections of this act, the plaintiff must complain for the same cause of action only upon which he relied before the justice; and the defendant's answer must set up the same defense only which he made before the justice. If the action is to recover a chattel which was replevied in the justice's court, each undertaking given in the justice's court con- tinues to be valid in, and is applicable to, the new action. § 179. Answer of title as to one of several causes of action. Where, in an action before a justice, the plaintiff has two or more causes of action and the defense that the title to real property will come in question is interposed as to one or more, but not as to all of them, the defendant may deliver an answer and undertaking, as prescribed in this article, with respect to the cause or causes of action only in which title will so come in question. Whereupon the justice must continue the action as to those causes of action only; the plaintiff may commence a new action therefor in the proper court ; and the original action must proceed as to other causes. ADJOUENMENTS. 395 ARTICLE 9. ADJOURNMENTS. Section 180. Adjournment by justice. 181. Adjournment on application of plaintiff. 182. Adjournment on application of defendant. 183. Undertaking on adjournment. 184. Undertaking to procure discharge of defendant from custody. 185. When defendant to be discharged. 186. Subsequent adjournments. 187. Justice may impose conditions upon adjournment. 188. Adjournment when warrant to attach absent witness is issued. 189. Adjournment not to exceed ninety days. § 180. Adjournment by justice. The justice on his own motion may adjourn the trial of the action or proceeding not more than eight days in either of the following cases, but at no other time: 1. On the return of a summons ; 2. On the joinder of issue on a voluntary appearance without the service of a sum- mons, or on the filing of a complaint on such appearance and the failure of the defend- ant to file a stipulation for judgment. The justice cannot adjourn the trial on his own motion where the defendant has been arrested. § 181. Adjournment on api^ication of plaintiff. At the time of the return of a summons, or of the joinder of issue without process, the justice, upon the application of the plaintiff, must adjourn the trial of the action, not more than eight days, to a time fixed by the justice. But such an adjournment shall not be granted unless the plaintiff or his attorney, if required by the defendant, makes oath that the plaintiff cannot, for want of some material testimony or witness specified by him, safely proceed to trial. § 182. Adjournment on application of defendant. At the time of the joinder of issue, the justice, upon the application of the defendant, must adjourn the trial of the action upon his complying with the following requirements : 1. The defendant or his attorney must, if required by the plaintiff, or by the justice, make oath that he verily believes that the defendant has a good defense to the action, and that he cannot safely proceed to trial for want of some material testimony or witness specified by him. 2. If required by the plaintiff, and the defendant has not been arrested jn the action, an undertaking must be given to the plaintiff in behalf of the defendant, as prescribed in the next section. But such an undertaking need not be given where the action is to recover a chattel. Such an adjournment must be for such a reasonable time, fixed by the justice, as will enable the defendant to procure the testimony or witness. § 183. Undertaking on adjournment. S^ch an undertaking must be to the effect th^t if judgment is recovered by the plaintiff, and an execution thereon is returned wholly or partly unsatisfied, the sureties 96 JJJSTICE COUET ACT. ill on demand pay the amount due on the judgment, if before the expiration of ten a,ys after the plaintiff become entitled to an execution, the defendant removes, !cretes, assigns or otherwise disposes of any part of his property liable to levy or sale Y virtue of an execution, except for the necessary support of himself and his family. 184. Undertaking to procure discharge of defendant from custody. Where the defendant has been arrested, the trial must be adjourned upon his appli- ition upon the same terms and in the same manner as where he has iiot ' been rrested; except that the undertaking prescribed in the last section need not be given. . defendant Vfho procures such an adjournment must continue, during the time of ijournment, in the custody of the constable; unless he gives an undertaking to the laintiff, with one or more sureties, approved by the justice, to the effect that, if the laintiff recovers judgment in the action, and if an execution is issued thereupon »ainst the person of the defendant within ten days after the plaintiif is entitled to le same, and if a return is made thereto on or after the return day thereof that the efendant cannot be found, the sureties will pay to the plaintiff the amount due upon le judgment. If such an undertaking is given, the defendant must be discharged from istody. 185. When defendant to be discharged. If the trial of an action in which the defendant has been arrested is adjourned with lie consent of both parties, or upon the application of the plaintiff, the defendant must e discharged from custody. 186. Subsequent adjournments. The justice, upon the application of the defendant, must grant a second or subse- uent adjournment of the trial of the action upon the defendant's giving security, if jquired, as prescribed in the foregoing provisions of this article where he applies for first adjournment, and upon his proving by his own oath or otherwise to the satis- iction of the justice that he cannot safely proceed to trial for want of some material Bslimony or witness, and that he has used due diligence to obtain the testimony or fitness. But if the defendant has given an undertaking upon a former adjournment, a ew undertaking need not be given unless it is required by the justice or by the sureties 1 the former undertaking. 187. Justice may impose conditions upon adjournment. Upon granting the defendant's application for an adjournment where the trial has een once adjourned, or where the plaintiff is a non-resident of the county, the justice, 1 his discretion, upon the plaintiff's application, may direct that any witnes on the part f the plaintiff who is in attendance be then examined under oath before the justice, hereupon the testimony of the witness must be reduced to writing, certified by the jstice, and retained by him, to be read upon the trial, with the same effect, and sub- set to the same objections as if it was then given orally by the witness. 188. Adjournment when warrant to attach absent witness is issued. Where upon a trial a warrant of attachment is issued to compel the attendance of a 'itness who has failed to appear in obedience to a subpoena, the justice, in his dis- retion, may adjourn the trial for such a time as he deems necessary for the return of be warrant, not exceeding five days. 189. Adjournment not to exceed ninety days. The trial of an action shall not be adjourned to a time beyond ninety days from the )inder of issue without the consent of both parties, except in one of the following ises: ADJOURNMENTS. 397 1. Where a venire has been duly issued, but a jury has not been procured, so that it is necessary to issue a new venire, or to sunimon one or more talesmen, the trial may be adjourned, not more than two days beyond the ninety days, in order to enable the jury to be procured. 2. Where a jury has not been able to agree upon a verdict and is discharged, the trial may be adjourned a sufficient time beyond the ninety days to enable a new jury to be procured as prescribed in this act. 3. Where a warrant of attachment has been issued to compel the attendance of a witness, as prescribed in the last section, or a warrant has been issued to commit a, recusant witness, as prescribed in this act, an adjournment made thereupon, as pre- scribed by law, is not deemed a part of the ninety days. 398 JUSTICE COURT ACT. ARTICLE 10. PBOCUBINQ TESHMONT. Seccion 190. When justice may issue subpoena. 191. Subpoena; how served. 192. Warrant of attachment against defaulting witness. 193. Attachment; how executed; fees thereupon. 194. Attachment; when witness is in adjoining county. 195. fine for refusing to attend, or to testify. 196. Fine; liow imposed. 197. Minute of conviction. 198. Execution thereupon. 199. Money collected; how applied. 200. Defaulting witness liable for damages. 201. Production of book of account. 202. Commission to examine witness upon interrogatories. 203. Commission without interlrogatories. 204. When and how granted. 205. Adjournment. 205. How deposition taken. 207. Execution and return of commission. 208. Certificate of execution. 209. Certificate a sufficient return. 210. Receipt of deposition by justice. 211. Powers of commissioners. 212. When deposition may be suppressed. 213. Deposition as evidence. § 190. When justice may issue subpoena. A justice of the peace may issue a subpoena to compel a witness to attend in the county where the justice resides or in an adjoining county, but not otherwise, for the purpose of testifying upon the trial of an action pending before himself or before another justice. The subpoena may require the witness, except as otherwise expressly prescribed by law, to bring with him any book or paper relating to the merits of the action. But a justice shall not issue a subpoena to compel the attendance of a witness before another justice, unless the person applying therefor proves, by his own oath or the oath of another person, that an action is actually pending before the other justice. § 191. Subpoena; how served. A subpoena may be served by a constable or by any other person. It must be served by reading it, or stating its contents, to the witness and by paying or tendering to him his lawful fee for one day's attendance as a witness. Where it is served by a constable, his return thereto, stating the manner of service and the sum paid, is pre- sumptive evidence of the facts therein stated. § 192. Warrant of attachment against defaulting witness. Where it is made to appear to the satisfaction of the justice by affidavit or other proof that a person, duly subpoenaed to attend before him in an action, has refused or neglected to attend as a witness in obedience to the subpoena, and no just cause for the neglect or refusal is shown to exist, and the party in whose behalf the witness was PKOCUEING TESTIMONY. 399 subpoenaed, or his attorney, makes oath that the testimony of the witness is material, the justice must issue a -warrant of attachment directed generally to any constable of the county for the purpose of compelling the attendance of the witness. § 193. Attachment; how executed; fees thereupon. Such a warrant of attachment must be executed in the same manner as an order of arrest. The fees of the justice and constable for issuing and serving it must be paid by the person against whom it is issued, unless he shows a reasonable excuse, to the satisfaction of the justice, for his omission to attend; in which case, the party pro- curing the warrant must pay them and, if he recovers costs, the amount thereof must be allowed to him as part of his costs. § 194. Attachment; when witness is in adjoining county. Where the delinquent witness is within an adjoining county, the constable to whom the warrant of attachment is directed may arrest the witness in that county and bring him .before the justice. The constable, while he is within the adjoining county for that purpose, has all the powers of a constable of that county with respect to the warrant so issued to him. § 195. Fine for refusing to attend, or to testify. A person duly subpoenaed as a witness who, without a reasonable excuse proved by liis oath or the oath of another person, fails to attend, or, attending, refuses to testify, must be fined by the justice before whom the action is pending for each non-attend- ance or refusal such a sum, not less than one dollar nor more than ten dollars, as the justice thinks it reasonable to impose upon him as a fine therefor. § 196. Fine; how imposed. The fine may be summarily imposed by the justice upon the application of the party in whose behalf the witness was subpoenaed at any time during the trial when the defaulting witness is present and had an opportunity to be heard. If it is not im- posed during the trial, the justice, at any time within five days after judgment is rendered, must, upon the application of the party, issue a warrant directed generally to any constable of the county commanding him to arrest the defaulting witness and to bring him before the justice at a time and place therein specified, the time to be not more than twelve days after issuing the warrant, to show cause why a fine should not be imposed upon him. § 197. Minute of conviction. The justice imposing the fine must enter in his docket-book a minute of the convic- tion, of the cause thereof, of the amount of the fine, and of- the costs. The minute is deemed a judgment against the delinquent in favor of the officer to whom fines are directed to be paid by section twenty-four of this act. § 198. Execution thereupon. If the whole amount of the fine and costs is not forthwith paid to the justice, he must issue an execution, directed generally to any constable of the county, command- ing the constable to collect the sum remaining unpaid of the goods and chattels of the delinquent within the county and, for want thereof, to take him and convey him to the jail of the county, there to remain until he pays that sum, not exceeding thirty days. Upon the delinquent being committed to jail the keeper thereof must keep him in close custody therein until he is entitled to a discharge as specified in the execution. § 199. Money collected; how applied. The money collected by virtue of the execution must be paid forthwith by the constable to the justice. The justice, within ten days after he receives a fine, or any 400 JUSTICE COUET ACT. part thereof, from the constable or the delinquent, must pay the money to the ofiBcer to whom the fines are directed to be paid by section twenty-four of this act for the use of the poor. § 200. Defaulting witness liable foi damages. A person subpoenaed as prescribed in this article who neglects or refuses to obey the subpoena or to testify, is also liable to the party in whose behalf he was sub poenaed for all damages which the party sustains by reason of his neglect or refusal. § 201. Production of book of account. A person shall not be compelled to produce upon a trial or hearing a book of account otherwise than by an order requiring him to produce it or a subpoena duces tecum. Such a subpoena must be served at least five days before the day when ho ia required to attend. At any time after service of such a subpoena or order the witness may obtain, upon such a notice as the justice prescribes, an order relieving him wholly or partly from the obligations imposed upon him by the subpoena or the order for production upon such terms as justice requires touching the inspection of the book or any portion thereof, or taking a copy thereof or extracts therefrom, or otherwise. The justice may make such an order at any time after the commencement of the action. § 202. Commission to examine witness upon interrogatories. Where the defendant has neglected to appear upon the return of a summons or has failed to answer the complaint or where an issue of fact has been joined in an action and it appears by affidavit upon the application of either party that a witness, not within the county where the action is pending or an adjoining county is material in the prosecution or defense of the action, the justice may award a commission to one or more competent persons authorizing them, or either of them, to examine the witness under oath upon interrogatories to be settled by the justice or by the written agree- ment of the parties and indorsed upon or annexed to the commission, to take and certify the deposition of the witness, and to return the same by mail, addressed to the justice. § 203. Commission without intenogatories. If both parties expressly consent, a commission granted as prescribed in this article may issue without written interrogatories and the deposition may be taken upon oral questions. In that case, section two hundred and six applies to the execution of the commission, and a copy of that section must be annexed thereto. Notice of the time or place of the examination of a witness by virtue thereof need not be given. § 204. When acd how granted. The commission may be granted by the justice without notice upon the application of the plaintiff, made at the return of the summons, or upon the application of either party made at the time of the joinder of issue. It may also be granted at any time after the joinder of issue upon the application of either party, accompanied with proof hy affidavit that six days' written notice of the application has been served upon the adverse party either personally or by service upon the attorney who appeared for him before the justice. § 205. Adjournment. Where a commission is granted upon the application of the plaintiiT, he is entitled to one or more adjournments of the trial as may be necessary to procure the commission to be executed and returned, not exceeding the length of time for which the trial might be adjourned upon the application of the defendant. PROCURING TESTIMONY. 401 § 206. How deposition taken. Upon the examination of a witness, without written interrogatories, by virtue of a commission, or of an order to take depositions, the commissioner, or the person before whom the deposition is taken, must take down, or cause to be taken down, as pre- scribed in the next section, the substance of the witness's testimony; unless he is directed, in the commission or the order, or required by the person appearing for either party, to insert in the deposition any or all of the questions or answers, word for word. Unless the commission or order otherwise directs, the person appearing for either party may ask any question which he deems proper, and the witness's answer must be taken accordingly, the objections thereto being reserved without being speci- fied at the time of examination. A copy of this section must be annexed to each com- mission to take testimony without written interrogatories and to each certified copy of an order to take a deposition. § 207. Execution and return of commission. The person to whom a commission is directed or before whom a deposition is taken, unless otherwise expressly directed in the commission or in the order for taking the depositions, must execute and return the commission, or the order, as follows: 1. He must publicly administer to each witness examined an oath or affirmation to testify the truth, the whole truth, and nothing but the truth, as to the matters respect- ing which the witness is to be examined. 2. He must reduce the examination of each witness to writing, or cause it to bo reduced to writing by a disinterested person. After it has been carefully read to or by the witness it must be subscribed by the witness. 3. If an exhibit is produced and proved, the exhibit, or, if the witness or other person having it in his custody does not surrender it, a copy thereof, must be annexed to the deposition to which it relates, subscribed by the witness proving it and numbered or otherwise identified in writing thereupon by the commissioner or person taking the deposition who must subscribe his name thereto. 4. The commissioner or person taking the deposition must subscribe his name to each half sheet of the deposition; he must annex all the depositions and exhibits to the commission, or to a certified copy of the order for taking the deposition, with the certificate specified in the next section; and he must close them up under his seal, and address the packet to the clerk of the court at his official residence. 5. If there is a direction on the commission or in the order to return the same through the post-office, he must immediately deposit the packet so addressed in the post-off'ce and pay the postage thereon. 6. If there is a direction on the commission or in the order to return the same by an agent of the party at whose instance it was issued or granted, the packet so addressed must be delivered to the agent. 7. Where a commission is directed to two or more persons, one or more of them may execute it. A copy of this section except subdivision six and of the next section must be annexed to each commission or order to take depositions authorized by this article. § COS. Certificate cf execution. The commissioner or other person before whom one or more depositions are taken must subscribe and annex to each deposition a certificate, substantially in the follow- ing form, the blanks being properly filled up: " State (or territory) of } gg_. County (or parish) of J „ T , do certify that , the witness 402 JUSTICE COUET ACT. personally appeared before me on the day of at o'clock in the noon, at the , in the state (or territory) of and after, being sworn (or afiBrmed, as the case may be), to testify the truth, the whole truth, and nothing but the truth, did depose to the matters. contained in the foregoing, deposition, and did, in my presence, subscribe the same, and indorse the exhibits, annexed thereto. And I further certify that I have subscribed my name to each half- sheet thereof, and to each exhibit. And I further certify that appeared in behalf of the , and that appeared in behalf of the " § 203. Certificate a sufScient return. The certificate specified in the last section is a sufScient return to a commission. § 210. Receipt of deposition by justice. The justice to whom the package containing the commission is transmitted by mail must receive it from the post-ofiSce and open and file it, indorsing thereupon the date of his so doing. It must remain on file with him until the trial; but either party is entitled to inspect it on file. § 211. Powers of commissionera. Where the commission is executed within the state, the commissioner, or, if there are two or more, a majority of them shall have the same power to issue a subpoena, to swear a witness, and to compel his attendance, that a justice of the peace has in an action pending before him. § 212. When deposition may be suppressed. Where it appears by affidavit that a deposition has been improperly or irregularly taken or returned, or that the personal attendance of the witness on the trial could have been procured with due diligence by a subpoena, or that the attorney for either party has practiced any fraud or unfair or overreaching conduct to the prejudice of the adverse party in the course of the proceedings, an order for the suppression of the deposition may be made by the court on the application of the party aggrieved on notice to the adverse party. § 213. Deposition as evidence. A deposition taken and returned as prescribed in this article or an exemplified copy thereof, if the original is filed in another county, may be read in evidence by either party unless it is suppressed as prescribed in the last section. It has the same effect and no other as the oral testimony of the witness would have; and an objection to the competency or credibility of the witness or to the relevancy or substantial com- petency of a question put to him or of an answer given by him may be made as if the witness was then personally examined and without being noted upon the deposition. TRIAL AND INCIDENTS. 403 ARTICLE 11. TBIAI, AND INCIDENTS. Section 214. Justice to wait one hour. 215. When plaintiff must prove his case. 216. Effect of failure of defendant to appear. 217. When justice to try issue of fact. 218. Defendant's offer to compromise. 219. General jury list for courts not of record. 220. Jury list. 221. Jury; how constituted. 222. Preparation of ballots; original box. 223. Second box. 224. Demanding jury trial. 225. Drawing jurors. 226. Prepayment of fees. 227. Venire. 228. Return of venire. 229. Punishment of jiu:or for default. 230. Ballots, how prepared, 231. Drawing jurors. 232. Jurors in default. 233. New venire. 234. Additional jurors. 234a. Procedure where jury cannot be obtained — removal to county court. 235. Peremptory challenges. 236. Challenges in actions by or against municipality. 237. Challenge for special cause. 238. Challenge, how tried. 239. Disqualification of juror related to a party. 240. Juror's oath. 241. Jury to hear proofs. 242. Witness's oath. 243. Mode of swearing. 244. Kissing the gospels. 245. Affirmation. 246. Other modes of swearing. 247. Swearing persons not Christians. 248. Justice may examine witness. 249. Recalcitrant witness. 250. Contents of warrant; imprisonment of recusant witness. 251. Adjournment thereupon. 252. Ex parte affidavit; when evidence. 253. When proof of corporate existence unnecessary. 254. Competency of witness; how determined. 255. Constable to keep jury; his oath. 256. Rendition of verdict; plaintiff need not be called. 257. No verdict can be taken after a party's death. 258. Jury when to be discharged; new venire. 404 ' JUSTICE COURT ACT. § 214. Justice to wait one hour. On the return of a summons duly served the justice must wait one hour after the time specified therein for its return, unless the parties sooner appear. § 215. When plaintiff must prove his case. The plaintiff cannot recover without proving his ease: 1. Where the defendant fails to appear and answer after the service of a summons, except as provided in section two hundred and fifty-nine; 2. Where on the voluntary appearance of the parties without the service of sum- mons, the defendant fails to file a stipulation for judgment within one hour after the complaint is filed. § 216. Effect of failure of defendant to appear. Where the defendant makes default in appearing or pleading upon the return of a summons which has been duly served as prescribed in this act, the justice must hear the allegations and proofs of the plaintiff and render judgment according to law and equity, as the very right of the case appears, except in an action commenced by the service of a summons and verified complaint as provided by section one hundred and fifty of this act, in which case judgment may be entered as provided by section two hundred and fifty-nine of this act. § 217. WZ-en justice to try issue tf fact. Where an issue of fact has been joined, if neither party demands a trial by jury, the justice must try the issue, hear the allegations and proofs of the parties, and render judgment as proscribed in the last section. § 218. Defendant's offer to compromise. Except in an action to recover a chattel, the defendant, upon the return of the sum- mons and before answering the original or amended complaint, may file with the jus- tice a written offer to allow judgment to be taken against him for a sum therein specif ed, with costs. If there are two or more defendants, and the action can l>e severed, a like offer may be made by one or morfe of the defendants against whom a separate judgment may be taken. If the plaintiff thereupon, before taking any other proceeding in the action, files with the justice a written acceptance of the offer, the justice must render judgmnt accordingly. If an acceptance is not filed, the offer cannot be given in evidence upon the trial; but, if the plaintiff fails to obtain a more favorable judgment, he cannot recover costs from the time of the offer, and must pay the defendant's costs from that time. § 219. General jury list for courts not of record. A general jury list for the courts subject to the provisions of this act consists of: 1. In a county which has no commissioner of jurors, the list of jurors filed with the clerk of the town or city by the officers thereof; 2. In a county which has a commissioner of jurors, the list so filed by him. If in a city, lists of jurors for more than one ward or district thereof are filed with the city clerk, the aggregate lists so filed shall constitute the general list. § 220. Jury list. Within ten days after a jury list is filed with the town or city clerk, he shall deliver a certified copy thereof to each justice in his town or city, or in any village any part of which is in such town, except that if the jurisdiction of the justice is limited to territory less than the whole of such town, city rr village, then the certified cc;\v TKIAL AND INCIDENTS. 405 ■hall contain only the names of residents of such territory. The clerk is entitled to a fee of one dollar for each copy so delivered, which is a town or city charge. A clerk who shall neglect to deliver such a copy within the time herein prescribed shall forfeit ten dollars for each failure, to be sued for and recovered by the overseers of the poor for the use of the poor of the town or city. § 221. Jury; how constituted. A jury for the trial of an action or proceeding by any justice or court subject to the provisions of this act shall be drawn from the jury list filed with the justice as herein provided. If more than one list is filed with the justice the aggregate lists so filed shall constitute one jury list for the purposes of this act. § 222. Frepaiation of ballots; original boz. Within ten days after the jury list is delivered to the justice, he must prepare suit- able ballots by writing on a separate piece of paper the name of each person included in the list who resides in the town, village, city or other district to which the juris- diction of the justice is limited, or in which he is authorized to hold a court, with the place of residence of such person and other additions. The ballots must be uniform as nearly as may be in appearance; and the justice must deposit them in the box kept for that purpose. Such a box is known as the original box. § 223. Second box. The justice shall also keep in his office another box to be known as the second box, in which shall be deposited, after each trial by jury, the ballots containing the names of persons who attended and served as jurors on such trial. § 224. Demanding jury triaL At the time when an issue of. fact is joined either party may demand a trial by jury, and unless then demanded, a jury trial is waived. § 225. Drawing jurors. When a trial by jury is duly demanded, the justice must first fix a day for trial, which shall not be less than three nor more than eight days after the joinder of issue, unless the parties consent to a longer adjournment, which consent shall be entered in the justice's minutes. The justice must then forthwith openly draw from the original box twelve ballots containing the names of persons required to attend as jurors to try such cause. The justice may excuse any juror entitled to be excused under section 544 of the judiciary law, and he may also set aside a juror who, in his opinion, resides more than three miles from the place of €rial. The ballots containing the names of jurors who did not appear and serve, or who were set aside or excused, must on the final adjournment of the court on the trial be returned to the original box. If a sufficient number of qualified jurors cannot be obtained from the original box, the justice must draw from the second box. When the ballots are all drawn from the original box,, they shall be again deposited therein, and juries shall be drawn therefrom until the ballots are again all drawn, or a new jury list is filed with the justice. § 226. Prepayment of fees. The party demanding a trial by jury shall thereupon pay to the justice the statu- tory fees for the attendance of each person to be summoned, and for the jurors who serve on the trial, and also the fees to which the constable is entitled for notifying the JTirors to attend. The fees so deposited shall be delivered by the justice to the 406 JUSTICE COUET ACT. constable serving the venire, and by him shall be paid out as required by law. In default of such deposit the justice shall proceed as if no demand for trial had been made. § 227. Venire. The justice must include the names of the jurors so drawn in a venire and deliver it to a constable of the county disinterested between the parties. The constable must, at least three days before the day therein named, notify each person whose name is included in a venire by reading it or stating its substance to him. § 228. Return of venire. The constable must make his return on a venire, certifying that he has personally served it on each of the jurors whose names are included therein, and if any were not served, stating the reason for such omission. Any constable making a false return of such venire is guilty of a misdemeanor. § 223. Punishment of juror for default. A person so served who does not attend at the time and place fixed for the trial of the cause, or, attending, refuses to serve without a reasonable excuse, proved by his own oath or the oath of another person, is guilty of a contempt of court, punishable by a fine not exceeding ten dollars, which the justice may impose forthwith by an entry in his minutes. Such fine shall be collected by an execution issued by the justice as upon a judgment, with costs of the levy, and paid to the overseer of the poor of the town for the use of the poor thereof; but on the presentation of a satisfactory excuse by or on behalf of the person so fined, the justice may at any time remit such fine or any part thereof. § 230. Ballots, how prepared. For the purpose of procuring a jury to try the action the justice must prepare or cause to he prepared ballots, uniform as nearly as may be in appearance^ by writing the name of each person returned who attends upon a separate piece of paper. The justice must roll up or fold each ballot in the same manner, as nearly as may be, so as to resemble the others, and so that the name is not visible. The ballots must be deposited in a box or other convenient receptable. § 231. Drawing jurors. The justice must then openly draw out, one after another, six of the ballots. If a person whose name is drawn is challenged and set aside, or is excused, another ballot must be drawn, and so on successively until the required number of jurors is obtained. The parties may elect to try the cause by less than six jurors. The persons so selected as herein provided constitute the jury to try the action. § 232. Jurors in default. If a sufficient number of competent jurors do not attend, the justice shall issue an attachment against all defaulting jurors, and shall place the same in the hands of the officer who summoned the same, commanding him forthwith to attach such jurors and to bring them before him at a time specified not more than thirty-six hours there- after, to which the cause must be adjourned. The juror or jurors so attached shall, in addition to the fine specified in section two hundred and twenty-nine of this act, be required to pay the expense of the attachment and service thereof; which shall be the officer's fees, together with all necessary expenses incurred by him in serving said attachment, to be audited and fixed, to be enforced in the same manner, and when collected to be paid to the officer or the party who has paid the same. Any person so TEIAL AND INCIDENTS. 40T attached and disobeying or resisting the service of said attachment is guilty of a misdemeanor. § 223. New venire. If the constable to whom the venire is delivered does not return it as required thereby or it is for any reason set aside, the justice must proceed to draw another jury in the manner prescribed in the foregoing sections of this article which shall be summoned in like manner as the first jury. § 234. Additional jurors. If a full jury drawn from those returned as prescribed in the foregoing sections cannot be obtained, the justice, by order entered in his minutes, may direct the con- stable to require the attendance forthwith, or at such time as he may designate, r.ot longer than twenty-four hours after such order is made, of such a number of talesmen from the by-standers or from the town qualified to serve as jurors as the justice deems sufiicient for the purpose; or he may from time to time draw from the jury box double the number of jurors needed to complete the jury, in the manner prescribed by the foregoing sections, who shall be summoned in like manner as the first jury, except that the venire may be made returnable forthwith. § 234-a. Procedure where jury cannot be obtained; removal to county court. Where in an action or proceeding now pending or hereafter to be brought before any justice, or in any court where the practice or procedure is regulated or controlled by this chapter, and in which a trial by jury has been duly demanded and cannot be had by reason of the fact that a sufiicient number of qualified jurors cannot be obtained for service therein, any party thereto may cause the same to be removed to the county court by filing with such justice a written demand for such removal, and upon the pay- ment by him of the costs of such action or proceeding, and the sum of two dollars, as the fee of the justice for making his return, the justice shall make a return of all the proceedings had before him in the manner and within the time as is provided for by section four hundred and thirty-eight of this act, and shall make and file with the clerk of the county court a certificate duly signed by him, which shall state that a trial of the action cannot be had before him for the reason that either all of the jurors as named in his jury list have been duly summoned and examined or discharged with- out obtaining a jury qualified to hear and determine such action or proceeding, or that all available jurors not so summoned are to his knowledge disqualified to serve therein by reason of having served as jurors upon a former trial of the same action or having been discharged as jurors upon such former trial, or by reason of having served as jurors before him in a like action or proceeding, involving the same issues, whether between the same or different parties. Upon the filing of such certificate, the action shall be deemed at issue in the county court the same as though originally brought therein, which court shall have jurisdiction to hear, try and determine the same. Such action shall be subject to the provisions of sections four hundred and forty-four to four hundred and forty-seven, both inclusive, of this act. (Added, L. 1921, chap. 200.) § 235. Peremptory challenges. Each party may peremptorily challenge not more than three of the persons drawn as jurors for the trial. § 236. Challenges in actions by or against municipality. In an action in a justice's court wherein a city, town or county is a party it is not a good cause of challenge to a trial juror or to an officer who notified the trial jurors that the juror or the officer is liable to pay -taxes in a city, town or county which may be benefited by the recovery. 408 JUSTICE COUET ACT. § 2C7. Challenge for special cause. The fact that a juror is in tlie employ of a party to tlie action, or, if a party to the action is a corporation, that he is an employee thereof or a shareholder or stockholder therein, or in actions for damages for injuries to person or property, that he is a shareholder, stockholder, director, oCoer or employee, or in any manner interested, in any insurance company issuing policies for protection against liability for damages for injury to person or property, shall constitute a good ground for a challenge to the favor as to such juror. § 208. Challenge, how tried. An objection to the qualifications of a juror is available only upon a challenge. A challenge of a juror, or a challenge to the panel or array of jurors, must he tried and determined by the justice only. His determination is subject to review on appeal. ' § 239. Disqualification of juror related to a party. Persons shall be disqualified from sitting as jurors if related by consanguinity or affinity to a party to the issue in the same cases in which judges are disqualified. The party related to the juror must raise the objection before the case is opened; but any other party to the issue may raise the objection within six months from the date of verdict. § 240. Juror's oath. The justice must administer an oath or affirmation to each juror, well and truly to try the matter in diS^erence between , plaintiff, and , defendant, and, unless discharged by the justice, a true verdict to give, according to the evidence. § 241. Jury to hear proofs. After tlie jurors have been duly sworn, they must sit together' and hear the allega- tions and proofs of the parties which must be made publicly in their presence. § 242. Witness's oath. Before any testimony is given by him, a person offered as a witness must be duly sworn or affirmed to the effect thtit the evidence. which he shall give, relating to the matter in difference between , plaintiff, and defendant, shall be the truth, the whole truth, and nothing but the truth. § 243. Mode of swearing. When an oath is administered, the witness shall lay his hands on the gospels and express assent to the oath, and it shall be according to the present practice except that the witness need not kiss the gospels. § 244. Kissing the gospels. The oath must be administered in the following form, to a person who so desires, the laying of the hand upon the gospels being omitted: "You do swear, in the presence of the overliving God." While so swearing he may or may not hold up his hand, at his option. § 245. Affirmation. ' A solemn declaration or affirmation, in the following form, must be administered to a person who declares that he has conscientious scruples against taking an oath, or swearing in any form : " You do solemnly, sincerely, and truly, declare and affirm." § 246. Other modes of swearing. If the court or officer before which or whom a person is offered as a witness is satis- fied that any peculiar mode of swearing in lieu of, or in addition to laying the hand TEIAL AND INCIDENTS. 409 upon the gospels is, in his opinion, more solemn and obligatory, the court or officer may in its or his discretion adopt that mode of swearing the witness. § 247. Swearing persons not Christians. A person believing in a religion other than the Christian may be sworn according to the peculiar ceremonies, if any, of his religion instead of as prescribed in the pre- ceding sections of this act. § 248. Justice may examine witness. The justice may examine an infant or a person apparently of weak intellect pro- duced before him as a witness to ascertain his capacity and the extent of his knowl- edge; and may inquire of a person produced as a witness what peculiar ceremonies in swearing he deems most obligatory. § 249. Recalcitrant witness. Where a witness attending before a justice in an action refuses to be sworn or affirmed in the form prescribed by law, or to answer a pertinent and proper question, or neglects or refuses to produce a book or paper which he has been duly subpoenaed to produce, as prescribed in section one hundred and ninety of this act, or duly required to produce by an order made as prescribed in section two hundred and one of this act, and the party at whose instance he attended makes oath that the testi- mony of the witness or that the book or paper is so far material that without it he cannot safely proceed with the trial of the action, the justice may by warrant commit the witness to the jail of the county. § 250. Contents of warrant; imprisonment of recusant witness. The warrant must specify the cause for which it is issued. If it is issued for refus- ing to answer a question, the question must be specified therein; if for neglecting or refusing to produce a book or paper, the same must be described with convenient cer- tainty. The recusant witness must be closely confined, by virtue of the warrant, until he submits to be sworn or affirmed or to answer or to produce the book or paper required, as the case may be, or is otherwise discharged according to law. § 251. Adjournment thereupon. The justice, thereupon, from time to time, at the request of the party in whose behalf the witness attended, must adjourn the trial until the witness testifies, or pro- duces the book or paper required, or dies, or becomes a lunatic, or is discharged accord- ing to law. § 252. Ex parte affidavit; when evidence. An ex parte affidavit shall not be received in evidence upon a trial without the con- sent of both parties, except in a case where it is specially allowed by law. § 253.' When proof of corporate existence unnecessary. In an action brought by or against a corporation the plaintiff need not prove upon the trial the existence of the corporation, unless the answer is verified and contains an affirmative allegation that the plaintiff, or the defendant, as the case may be, is not a corporation. § 254. Competency of witness; how determined. An objection to the competency of a witness must be tried and determined by the justice. Wiere the ground of the objection depends upon a matter of fact, evidence may be given thereupon as upon any other question of fact; except that, if the witness is examined thereupon by the party objecting, no other testimony shall be received from either party as to his competency. 410 JUSTICE COUET ACT. § 255. Constable to keep jury; his oatb. After hearing the allegations and proofs the jury must be kept together in a private and convenient place under the charge of a constable until they all agree upon their verdict; and, for that purpose, the justice shall administer to the constable the fol- lowing oath: "You swear in the presence of Almighty God, that you will, to the utmost of your ability, keep the persons sworn as jurors upon this trial together, in a private and convenient place, without any meat or drink, except such as shall be ordered by me ; that you will not suffer any communication to be made to them, orally or otherwise; that you will not communicate with them yourself, orally or other- wise, unless by my order, or to ask them whether they have agreed upon their verdict, until they are discharged; and that you will not, before they render their verdict, communicate to any person the state of their deliberations, or the verdict they have agreed upon." § 256. Rendition of verdict; plaintifi need not be called. When the jurors have agreed upon their verdict, they must publicly deliver it to the justice who must enter it in his docket-book. It is not necessary to call the' plaintiff before receiving the verdict; and the plaintiff cannot submit to a nonsuit or withdraw the action after the cause has been committed to the jury. § 257. No verdict can be taken after a party's death. This act does not authorize the entry of a judgment against a party who dies before a verdict is actually rendered against him. In that case the verdict is absolutely void. § 258. Jury when to be discharged; new venire. Where the justice is satisfied that the jurors cannot agree upon a verdict after having been out a reasonable time he may discharge them and issue a new venire, returnable within forty-eight hours; unless the parties consent, and their consent is entered in the justice's docket-book, that the justice may render judgment upon the evidence already before him; which he may do in that case. JUDGMENTS. 411 AEfflCSLE 12, JUDGMENTS. Section 259. Judgment by default. 260. Judgment on stipulation. 261. Judgment by confession. 262. Mode of confessing judgment. 263. When judgment by confession void. 264. Judgment upon counterclaim. 265. AfErmative relief. 266. Judgment, where counterclaim only is interposed for leas than plaintiff's claim. 267. Judgment when accounts exceed four hundred dollars. 268. Judgment of nonsuit. 269. Judgment upon verdict. 270. When judgment to be rendered. 271. Eemitting part of verdict. 272. Filing transcript of judgment. 273. When execution may issue against person. 274. Docketing judgment in another county. 275. Justice may give transcript after expiration of his term. 276. Judgment for or against a married woman. 277. Judgment to bear interest. § 259. Judgment by default. If a verified complaint has been served with the summons in a case authorized by this act and the defendant fails to answer such complaint at the time of the return of the summons, he shall be deemed to have admitted the allegations of the complaint as true, and the court, on filing the summons and complaint with due proof of the service thereof, shall forthwith enter judgment for the plaintiff and against the defetfd- ants for the amount demanded in the complaint, with costs, without further proof. § 260. Judgment on stipulation. Where the parties voluntarily appear before a justice without the service of a sum- mons and the plaintiff files a verified complaint in a case authorized by this act, the defendant may file a stipulation that judgment may be rendered against him for the amount therein stated, with costs. Judgment must forthwith be rendered accordingly without further proof. § 261. Judgment by confession. A justice of the peace may enter a judgment upon the confession of the defendant in any case where the amount confessed does not exceed the sum of five hundred dol- lars with such a stay of execution, if any, as is agreed upon by the parties to the judgment. § 262. Mode of confessing judgment. A judgment upon confession shall not be rendered unless the following requisites are complied with: 1. The defendant must personally appear before the justice. 412 JUSTICE COUET ACT. 2. The confession must be in writing, signed by the defendant, and filed with the justice. 3. If the judgment is confessed for a sum exceeding fifty dollars, the confession must be accompanied with the afndavit of the defendant and of the plaintiff stating that the defendant is honestly and justly indebted to the plaintiff in the sum specified therein over and above all just demands which the defendant has against the plaintiff, and that the confession is not made or taken with intent to defraud any creditor. § 263. When judgment by confession void. A judgment confessed, otherwise than as prescribed in the last section, is void as against every person, except a purchaser in good faith of property, real or personal, thereunder, and the defendant making the confession. § 264. Judgment upon counterclaim. Where a counterclaim is established which equals the plaintiff's demand, the judg- ment must be in favor of the defendant. Where it is less than the plaintiff's demand, the plaintiff must have judgment for the residue only. Where it exceeds the plaintiff's demand, the defendant must have judgment for the excess, or so much thereof as is due from the plaintiff, unless it is more than the sum of two hundred dollars. If it is more than two hundred dollars, or if no part of it is due from the plaintiff, the justice must, at the election of the defendant, either: 1. Set off so much of the counterclaim as is sufficient to satisfy the plaintiff's demand, and render judgment for the defendant for his costs; in which case the defendant may maintain an action for the residue; or, 2. Render a jud.gment of discontinuance with costs ; in which case the defendant may thereafter maintain an action for the whole. Where part of the excess is not due from the plaintiff, the judgment does not preju- dice the defendant's right to recover from another person so much thereof as the judgment does not cancel. § 2C5. AflSrmative relief. In a case not specified in the last section, where a counterclaim is established which entitles the defendant to an afT.rmative judgment demanded in the answer, judgment must be rendered for the defendant accordingly. g 2:6. Judgment, where counterclaim only is interposed for less than plaintiff's claim. In an action upon contract, where the complaint demands judgment for a sum of money only, if the defendant by his answer does not dsny the plaintiff's claim but sets up a counterclaim amounting to less than the plaintiff's claim, the plaintiff on filing with the court an admission of the counterclaim may take judgment for the excess as upon a default for want of an answer. § 267. Judgment when accounts exceed four hundred dollars. Where upon the trial of an action the sum total of the amounts of both parties, proved to the satisfaction of the justice, exceeds four hundred dollars, judgment of discontinuance must be rendered against the plaintiff, with costs. § 268. Judgment of nonsuit. Judgment of nonsuit, with costs, must be rendered against a plaintiff prosecuting an action before a justice of the peace, in cither of the following cases: 1. If he discontinues or withdraws the action; 2. If he fails to appear within one hour after the summons is returnable, or within one hour after the time to which the trial has been adjourned; 3. If he is nonsuited upon the trial. JUDGMENTS. 413 § 269. Judgment upon veidict. Where a verdict, or the decision of the justice upon a trial without a jury, is ren- dered in favor of either party, the justice must render judgment against the adverse party in conformity thereto, with costs, except as Is otherwise specially prescribed by law. § 270. When judgment to be rendered. The justice must forthwith render judgment and enter it in his docket book in either of the following cases: 1. Where the plaintiff is nonsuited, or discontinues or withdraws the action; 2. Where judgment is confessed; 3. Where a verdict is rendered. 4. Where the defendant is in custody at the close of the trial; 5. Where the plaintiff is entitled to the judgment by default as provided in section two hundred and fifty-nine; 6. Where the defendant stipulates a judgment as provided in section two hundred and sixty. In every other case the justice must render judgment and enter it in his docket book within four days after the cause has been finally submitted to him. § 271. Remitting part of verdict. Where a verdict, or the decision of the justice upon a trial without a jury, is ren- dered in favor of either party for a sum of money, the prevailing party may remit any portion thereof and take judgment for the residue. § 272. Filing transcript of judgment. A justice of the peace who renders a judgment must on the application of the judg- ment creditor and the payment of the fee therefor deliver to him a transcript of the judgment. If the judgment is for a chattel which has been delivered to the unsuc- cessful party, or for the value thereof in case a return thereof cannot be had, and such value exceeds twenty-five dollars, the transcript must state the particulars of the judgment, and whether the summons was personally served. A transcript may be filed in the office of the clerk of the county in which the judgment was rendered at any time within six years after its rendition. The county clerk on the presentation of the transcript and payment of the fees therefor must indorse thereon the date of its receipt, file it in his office and docket the judgment as of that date, in a book kept by him for that purpose, in the same manner as a judgment in an action brought in the county court, and enter therein the particulars of the judgment as stated in the transcript. From the time of filing such transcript the judgment is deemed the judg- ment of the county court of that county, and must be enforced accordingly, except that an execution can be issued thereon only by the county clerk as prescribed in section two hundred and Seventy-nine and a'so except that the judgment is not a lien on real property unless it is for twenty-five dollars or more, exclusive of costs. § 273. When execution may issue against person. If the action in which the judgment is rendered is one of the actions specified in sub'division one or two of section sixty-one of this act, or if an order of arrest was granted and was executed in a case specified in subdivision three of that section, and, in either case, if the defendant is a male person, the justice must insert in each transcript given by him, as prescribed in the last section, the words " defendant liable to execution against his person "; and a like note must also be made in the docket of the judgment made by the county clerk. 414 JUSTICE COUKT ACT. § 274. Docketing judgment in another county. The clerk with -whom a transcript given by a justice is filed, as prescribed in this article, must furnish to any person applying therefor and paying the fees allowed by law one or more transcripts of the docket of the judgment attested by his signature. A county clerk to whom such a transcript is presented must, upon payment of the fees therefor, immediately file it, and docket the judgment in the appropriate docket-book kept in his office in like manner as the judgment was docketed by the first county clerk. The judgment, when docketed as prescribed in this section, has the lik^ effect, with respect to the enforcement thereof, or any proceedings thereunder, or by virtue thereof, in the county where it was so dockted, as if it was rendered by a justice of the peace of that county, and docketed upon filing his transcript; except that where an application for leave to issue an execution is necessary, it must be made to the county court of the county where the judgment was rendered. § 275. Justice may give transcript after expiration of his term. A justice of the peace whose term of office has expired may make a transcript of a judgment rendered by him, as prescribed in either of the foregoing sections of this article. § 276. Judgment for or against a married woman. Judgment for or against a married woman may be rendered and enforced as if she were single. § 277. Judgment to bear interest. A judgment tor a sum of money bears interest from the time it is entered. EXECUTIONS. 415 ARTICSLE 13. EXECUTIONS. Section 278. When justice may issue execution. 279. Execution upon judgment docketed with county clerk. 280. Execution on filing transcript. 281. General requisites of execution. 282. Execution upon judgment for money. 283. Execution in replevin. 284. Time of receipt to be indorsed on execution. 285. Benewal of execution. 286. Priority of execution. 287. Property exempt from execution. 288. Indorsement of levy; notice of sale. 289. Sale on execution. 290. Penalty for taking down or defacing nqtice of sale. 291. Validity of sale. 292. Certain purchases prohibited. 293. Personal property bound by execution. 294. Title of bona fide purchaser before levy. 295. Levy upon current money. 296. Levy upon evidences of debt. 297. Interest of bailor in goods pledged. 298. Sale of personal property. 299. Return of execution. 300. Garnishee proceedings. 301. Execution against the person; imprisonment of judgment debtor. 302. When execution against a person cannot issue. 303. Execution against a woman, 304. When judgment debtor to be discharged. 305. Afladavit for discharge. 306. Penalty for not discharging. 307. Affidavit a defense to action for escape. 308. Discharge not to affect judgment. 309. Execution upon judgment in action for a chattel. 310. Action against constable for not returning execution. 311. Constable not to act under execution after return day. 312. Action against constable for money collected. 313. Duty of constable whose term of office has expired. S 278. When justice may issue execution. At any time within five years after entry of a judgment, the justice of the peace who rendered it, being in office, may issue an execution thereupon, unless it has been docketed in the county clerk's office. § 279. Execution upon judgment docketed with county clerk. Where a judgment rendered by a justice of the peace has been docketed with a county clerk, upon the filing either of a transcript from the justice's docket or of a transcript from the clerk's docket of another county, the execution, to be issued 416 JUSTICE COUKT ACT. thereupon by the county clerk, must be in the same form and executed in the same manner as an execution issued upon a judgment of the county court; except as other- wise prescribed in the next section; and except, also, that where the judgment is for a sum less than twenty-five dollars, exclusive of costs, the direction to satisfy the judgment out of the real property of the judgment debtor must be omitted. In that case the provisions relating to the satisfaction of an execution out of the judgment debtor's real property are not applicable thereto. § 2S0. Execution on filing transcript. Where an execution is issued out of a court other than that in which the judgment was rendered, upon filing a transcript of the judgment rendered in the latter court, it also must specify the clerk with whom the transcript is filed and the time of filing; and it must be made returnable to that clerk; it must also specify the justice's name and omit the specification respecting the filing of the judgment-roll. § 281. General requisites of execution. An execution issued by a justice must be directed generally to any constable of the same county. It must intelligibly describe the judgment, stating the names of the parties in whose favor, and against whom, the time when, and the name of the justice by whom, the judgment was rendered; and it must be made returnable to the justice, within sixty days after its date. § 282. Execution upon judgment for money. An execution issued upon a judgment for a sum of money must specify in the body thereof the sum recovered and the sum actually due upon the judgment at the date of the execution; and, except in a case where special provision is otherwise made by law, it must substantially, require the constable to satisfy the judgment together with his fees, out of the personal property of the judgment debtor within the county, not exempt from levy and sale by virtue of an execution; and to bring the money before the justice, by the return day of the execution, to be rendered by the justice to the party who recovered the judgment. If the judgment was recovered against a male person, in either of the actions specified in ^subdivision one or two of section sixty -one of this act; or if an order of arrest was granted, and was executed, in a ease specified in subdivision three of that section, the execution must also command the constable, if sufficient personal property cannot be found to satisfy the judgment, to arrest the judgment debtor, and to convey him to the jail of the county, there to remain until he pays the judgment or is discharged according to law. If the judgment was rendered in an action to recover a penalty or forfeiture given by a statute of the state, the justice must indorse upon the iexecution a reference to the statute, as prescribed in section forty-nine of this act, with respect to a copy of the summons. § 283. Execution in replevin. An execution for the delivery of a chattel must particularly describe the property and designate the party to whom the judgment awards the possession thereof; and it must substantially require the constable to deliver the possession of the property within his county to the party entitled thereto. If a sum of money is awarded by the same judgment, it may be collected by virtue of the same execution; or a separate execution may be issued for the collection thereof, omitting the direction to deliver possession of the property. If one execution is issued for both purposes, it must con- tain with respect to the money to be collected the same directions as an execution against property, or against the person, as the case requires. ' EXECUTIONS. 417 § 284. Time of receipt to be indorsed on execution. The constable to ■whom an execution is directed and delivered must on the receipt thereof indorse thereon a memorandum of the day, hour and minute when he received it. § 285. Renewal of execution. After the return, wholly or partly unsatisfied, of an execution issued by a justice of the peace, he may, from time to time, within five years after the judgment was ren- dered, issue a new execution or renew the former execution. An execution is renewed by a written indorsement thereupon to that effect, signed by the justice and dated upon the day when the indorsement is made. If part of the execution has been satis- fied, the indorsement must state the sum remaining due. Each indorsement renews the execution for sixty days from the date thereof. A justice whose term of office has expired may thus issue or renew an execution. § 286._Priority of execution. , An execution issued out of a court not of record, or a warrant of attachment granted in an action pending in a court not of record, if actually levied, has preference over another execution issued out of any court, of record or not of record, which has not been previously levied. § 287. Property exempt from, execution. The same personal property is exempt from levy and sale, by virtue of an execution issued by a justice of the peace, which is exempt from levy and sale by virtue of an execution issued out of the supreme court, and in the like cases, and under the same, circumstances. § 288. Indorsement of levy; notice of sale. A constable who takes personal property into his custody by virtue of an execution must indorse upon the execution the time of levying upon it. He must immediately post conspicuously in at least three public places in the city or town, in which the property was taken written or printed notices, signed by him, describing the property and specifying the place, within the same city or town, where, and the time, not less than six days after the posting, when, it will be exposed for sale. ■ § 289. Sale on execution. A sale of real or personal property, by virtue of an execution, or pursuant to the directions contained in a judgment, must be made at public auction, between the hour of nine o'clock in the morning and sunset. The constable to whom an execution is issued shall at any time before the sale of the personal property levied on by him, on the written request of any person who is a creditor of the person against whom th; execution was issued under which the constable levied upon the property, exhibit to such creditor the personal property so levied upon under' said execution and permit an inspection thereof by such creditor or his agent. § 220. Penalty for taking down or defacing notice of sale. A person who, before the time fixed for the sale, in a notice of the sale of property, to be made by virtue of an execution, wilfully takes down or defaces such a notice put up by the constable or by his authority, forfeits fifty dollars to the judgment creditor, and the same sum to the judgment debtor; unless the notice was defaced or taken down with the consent of the person seeking to enforce the forfeiture or the execution was previously satisfied. § 291. Validity of sale. An omission by the constable to give notice, as required by law, or the taking down or defacing of a notice, when put up, does not affect the validity of a sale, made by 418 JUSTICE COUKT ACT. virtue of an execution to a purchaser in good faith without notice of the omission or- offense. § 292. Certain purchases prohibited. The constable to whom an execution is directed shall not purchase, directly or indirectly, any of the property at the sale. A purchase made by him or to his use is void. § 293. Personal property bound by execution. The goods and chattels of a judgment debtor not exempt by express provision of law from levy and sale by virtue of an execution, and his other personal property, which is expressly declared by law, to be subject to levy by virtue of an execution, are, when situated within the jurisdiction of the officer to whom an execution against prop- erty is delivered, bound by the execution from the time of the delivery thereof to the proper oflBcer, to be executed; but not before. I 294. Title «f bona fide purchaser before levy. The title to personal property, acquired before the actual levy of an execution by a purchaser in good faith, and without notice that the execution has been issued, is not affected by an execution delivered, before the purchase was made, to an officer, to bo executed. •§ 295. Levy upon current money. The constable to whom an execution against property is delivered must levy upon current money of the United States belonging to the judgment debtor; and must pay it over, as so much money collected, without exposing it for sale; except that where it consists of gold coin, he must sell it, like other personal property. § 296. Levy upon evidences of debt. The constable to whom an execution against property is delivered, must levy upon and sell, a bill, or other evidence of debt, belonging to the judgment debtor, which was issued by a moneyed corporation to circulate as money ; or a bond, or other instrument for the payment of money, belonging to the judgment debtor, which was executed and issued by a government, state, county, public officer, or municipal or other corporation, and is in terms negotiable, or payable to the bearer, or holder. § 297. Interest of bailor in goods pledged. The interest of the judgment debtor in personal property, subject to levy, lawfully pledged for the payment of money, or the performance of a contract or agreement, may be sold, in the hands of the pledgee, by virtue of an execution against property. The purchaser at the sale acquires all the right and interest of the judgment debtor, and is entitled to the possession of the property, on complying with the terms and conditions upon which the judgment debtor could obtain possession thereof. This section does not apply to property of which the judgment debtor is unconditionally entitled to the possession. § 298. Sale of personal property. Personal property must be offered for sale in such lots and parcels as are calculated to bring the highest price. Except where the constable is expressly authorized to sell property not in his possession, personal property shall not be offered for sale unless it is present and within the view of those attending the sale EXECUTIONS. .419 S 299. Return of execution. The constable must return the execution to the justice and pay to him the amount of the judgment, with interest, or so much thereof as he has collected; returning the surplus, if any, to the person from whose property it was collected. § 300. Garnishee proceedings. Where a judgment has been recovered in a court not of record and where an execution issued upon said judgment has been returned wholly or partly unsatis- fied, and where any wages, debts, earnings, salary, income from trust funds or profits are due and owing to the judgment debtor, or shall thereafter become due and owing to him, to the amount of twelve dollars or more per week, the judgment creditor may apply to a judge or justice of such court without notice to the judgment debtor, and upon satisfactory proof of such facts by aflBidavits or otherwise, the judge or justice must grant an order directing that an execution issue against the wages, debts, earnings, salary, income from trust funds or profits of said judgment debtor, and on presentation of such execution by the officer to whom delivered for collection to the person or persons from whom such wages, debts, earnings, salary, income from trust funds or profits are due and owing, or may thereafter become due and owing to the judgment debtor, said execution shall become a lien and a continuing levy upon the wages, earnings, debts, salary, income from trust funds or profits due or to become due to said judgment debtor to the amount specified therein which shall not exceed ten per centum thereof, and said levy shall be a continuing levy until said execution and the expenses thereof are fully satisfied' and paid or until modified as hereinafter pro- vided, but only one such execution against the wages, debts, earnings, salary, income from trust funds or profits of said judgment debtor shall be satisfied at one time and 1»here more than one such execution has been issued or shall be issued pursuant to the provisions of this section or of any other law against the same judgment debtor, they shall be satisfied in the order of priority in which such executions are presented to ths person or persons from whom such wages, debts, earnings, salary, income from trust funds or profits are due and owing. It shall be the duty of any person or corporation, municipal or otherwise, to whom said execution shall be presented, and who shall at such time be indebted to the judg- ment debtor named in such execution, or who shall become indebted to such judgment debtor in the future, and while said execution shall remain a lien upon said indebted- ness, to pay over to the officer presenting the same such amount of such indebtedness as such execution shall prescribe until said execution shall be wholly satisfied, and such payment shall be a bar to any action therefor by any such judgment debtor. If such person or corporation, municipal or otherwise, to whom said execution shall be pre- sented shall fail, or refuse to pay over to said officer presenting said execution, the percentage of said indebtedness, he shall be liable to an action therefor by the judg- ment creditor named in such execution, and the amount so recovered by such judgment creditor shall be applied towards the payment of said execution. Either party may apply at any time to the judge or justice issuing the same, or to the county judge of the county, and in any county where there is no county judge, to any justice of the city court upon such notice to the other party as such court, judge, or justice shall direct for a modification of said execution, and upon such hearing the said court, judge or justice may make such modification of said execution as shall be deemed just, and such execution as so modified shall continue in full force and effect until fully paid and satisfied, or until further modified as herein provided. This section, so far as it relates to wages and salary, due and owing or to become due and owing to the judgment debtor, shall not apply to judgments recovered more 420 JUSTICE (X)UKT ACT. than ten years prior to September first, nineteen hundred and eight, nor to judgments heretofore or hereafter recovered upon such judgments. No execution under this section shall be hereafter issued upon a judgment against an officer or employee of any city or any county of the state or of the board of educa- tion of any such city, unless it shall contain the name of the judgment debtor, in full, his title or position, and the bureau, office, department or subdivision thereof in which he is employed; and if a person so employed shall resign or be dismissed while an execution issued pursuant to the provisioiis of this section wholly or partly unsatisfied, and he be reinstated or re-employed, such execution shall lapse and no further deduc- tion shall be made thereon unless such reinstatement or re-employment occur within ninety days after such resignation or dismissal. All executions filed in any department against the wages, debts, earnings and salary of officers or employees of any city or of any county of the state, or of the board of education of any such city within five days prior to the date on which payment of wages, debts, earnings and salary are paid shall not become a lien against the wages, debts, earnings and salary that are payable on the said payroll but shall become a lien upon the wages, debts, earnings and salary which shall become due or owing to the judgment debtor thereafter. § 301. Execution against the person; imprisonment of judgment debtor. FoT want of sufficient personal property, whereon to levy, the constable must, if the execution requires it, arrest the judgment debtor and convey him to the jail of the county.- The keeper of the jail must thereupon keep the judgment debtor in custody, in all respects as if the execution was issued out of the supreme court, until the judg- ment and the fees of the constable are paid; or uiitil the judgment debtor is thence discharged, in due course of law; except that if the execution has an indorsement showing that the judgment was rendered in an action for a penalty or forfeiture given by a statute of the state, the sheriff shall not admit the judgment debtor to the liberties of the jail. § 302. When execution against a person cannot issue. Where a cause of action for which a defendant might be arrested is united with a cause of action for which he cannot be arrested, an execution against the person cannot be issued on the judgment. § 303. Execution against a woman. An execution cannot be issued under this act against the person of a woman. § 304. When judgment debtor to be disdiarged. A person committed to jail by virtue of an execution issued under this act, who has a family within the state for which he provides, must be discharged after remaining in custody thirty days; otherwise he must be discharged after so remaining sixty days. A person admitted to the jail liberties is deemed in custody under this section. § 305. Affidavit for discharge. In order to procure a discharge at the expiration of thirty days, the prisoner must make and deliver to the sheriff or jailer an affidavit stating the facts which entitle him to such discharge according to the provisions of the last section. The sheriff or jailer, on receiving such affidavit, must forthwith discharge the prisoner from custody, and must thereupon deliver the affidavit to the clerk of the county who must file it in his office without fee. § 306. Penalty for not discharging. A sheriff or jailer who refuses to discharge the prisoner upon receiving such an affi- davit forfeits twenty-five dollars for each day during which he detains the prisoner, to EXECUTIONS. 421 be recovered by the latter, in addition to any damages which he sustains by reason of the false imprisonment. § 307. Affidavit a defense to action for escape. The receipt of such an affidavit is a defense to an action brought against the sheriflf or jailer by reason of the prisoner's discharge. § 308. Discharge not to affect judgment. Notwithstanding the discharge of a judgment debtor, as prescribed in the last four sections, the judgment remains valid as against his property; and a new execution may be issued accordingly, as if he had not been imprisoned. § 309. Execution upon judgment in action for a chattel. In an action for a chattel, the possession of which has not been delivered to the prevailing party, an execution, for the delivery of the possession thereof to him, as well as for any damages recovered by him, may be issued by the justice; unless the judgment has been docketed in the county clerk's office. It must be to the same eflfect, and executed in the same manner, as a like execution issued upon a judgment rendered in the supreme court; except that it must be directed generally to any constable of the county; and that the direction to satisfy a sum of money out of the property of the judgment debtor must be in the form prescribed in this article for a like direction where an execution is issued by a justice of the peace upon a judgment for a sum of money. § 310. Action against constable for not returning execution. If a constable fails to return an execution within five days after the return day thereof, the party in whose favor it was issued may recover, in an action against the constable, the amount of the execution, if it was issued upon a judgment for a sum of money; or if it was for the delivery of the possession of a chattel, the value of the chattel, as specified in the judgment, together with the damages and costs awarded thereby; and, in either case, with interest from the time when the judgment was rendered. § 311. Constable not to act under execution after return day. A constable shall not levy upon or sell property, or arrest a defendant, or take pos- session of a chattel, by virtue of an execution, after the time limited therein for its return, unless the execution has been renewed ; nor shall he do any act under a renewed execution, after the expiration of the time for which it has been renewed. § 312. Action against constable for money collected. Where money, collected by a constable upon an execution, is not paid over by him according to law, any person entitled thereto may maintain an action in his own name upon the instrument of security given by the constable and his sureties; and may recover therein the sum so collected, with interest from the time when it was collected. § 313. Duty of constable whose term of office has expired. A constable, to whom an execution is delivered, whose term of office expires on or before the return day thereof, must proceed thereupon in the same manner as if his term of office had not expired; and he and his sureties are liable for any neglect of duty, with respect to the execution; or for money collected thereunder, or for damages sustained by reason of any act done by the constable, touching the execution, in the same manner and to the same extent as if his term of office had not expired. 422 . JUSTICE COUET ACT. ARTICLE 14. COSTS. Section 314. When prevailing party to recover costs. 315. Security for costs where plaintiff is foreign corporation. 316. When neither party to recover costs. 317. Amount of costs limited. 318. Costs upon demurrer. 319. When defendant entitled to increased costs. 320. Costs in action on judgment of justice. 321. Taxation of costs. 322. Costs on judgment for one or more defendants. 323. Costs wrongfully collected may be recovered back. 324. Fees of justice of the peace in action. 325. Fees of justice of the peace in special proceedings or action not before justice of peace. 326. Fees of constable. 327. Affidavit for traveling fees. 328. Costs of commission. 329. Juror's fees. 330. Witness fees. 331. Prepayment of costs and fees. 332. Payment by adverse party of costs and fees. ' 333. Any person may subpoena witnesses. 334. Provision for fees applies to civil actions only. § 314. When prevailing party to recover costs. Except as otherwise specially prescribed by law, a party who recovers judgment in an action in a justice's court, is entitled to costs; which must be included in the judg- ment. Costs consist of the fees allowed by law for services necessarily rendered in the action at the request of the party entitled to costs or paid by him, as prescribed by law ; and of such other expenses as a party is entitled to include in his costs by express provision of law. § 315. Security for costs where plaintiff is foreign corporation. The defendant in an action brought in a justice's court may require security for costs to be given where the plaintiff is a foreign corporation. A written demand requiring such security shall be served upon the plaintiff and filed with the justice. The plaintiff shall, within five days thereafter, either deposit with the justice the sum of two hundred and fifty dollars, to be applied to the payment of the costs, if any, awarded against him, or file with the justice an undertaking, executed to the defendant by one or more sureties, approved by the justice, to the effect that they will pay, upon demand, to the defendant, all costs which may be awarded to him in the action, not exceeding a sum specified in the undertaking, which must be at least two hundred and fifty dollars. The plaintiff must also serve upon the defendant a notice that such undertaking has been filed. Within five days after service of the notice of the filing of the undertaking, the defendant may serve upon the plaintiff, or his attorney, a notice that he excepts to the sureties therein. Within five days after service of such a notice, the plaintiff must serve upon the defendant, or his attorney, a notice of the COSTS. 423 justification of the same or new sureties before the justice, at a specified time iand place, not less than five days nor more than ten days thereafter. If the justice finds the sureties sufficient, he must annex the written examination, if any, to the under- taking, and indorse his allowance thereon. Where the defendant fails duly to except his sureties, the undertaking is deemed allowed and must be indorsed in like manner. § 316. When neither party to recover costs. In either of the following eases, costs shall not be awarded to either party, but each party must pay his own costs: 1. Where the action is discontinued by the absence of the justice for more than one hour, after the summons is returnable, or after the time to which the trial has been adjourned. 2. Where the justice is disqualified, for a reason specified in section fifteen of the judiciary law. 3. Where the action is discontinued, upon the ground that the defendant is an infant, for whom a guardian ad litem has not been appointed. 4. In an action to recover one or more chattels, where the plaintiff recovers a chattel, or part of a chattel, or the value thereof, and the defendant also recovers a chattel, or part of a chattel, which has been replevied and delivered to the plaintiff, or the value thereof. The plaintiff is entitled to costs, where both parties recover, as specified in this subdivision, unless the chattel, for which the defendant recovers, has been replevied and delivered to the plaintiff. § 317. Amount of costs limited. The sum to be awarded, as costs, to the prevailing party, except where it is other- wise specially prescribed by law, is limited as follows: 1. It cannot exceed fifteen dollars, besides the fees of witnesses, where, upon the trial of an issue of fact or of law, either party recovers damages to the amount of fifty dollars or more, or one or more chattels, the value of which, as fixed, together with the damages, if any, amounts to fifty dollars or more; or, where, if the defendant recovers judgment, the sum for which the plaintiff demanded jiidgment was fifty dollars or inore, or the value of all the chattels to recover which the action was brought was stated in the complaint at fifty dollars or more. 2. In every other case, it cannot exceed ten dollars, besides the fees of witnesses attending from another county. But the prevailing party is entitled, in addition to the sum specified in this section, to the fees and expenses allowed by law for a commission issued to examine a witness not residing in the county or in an adjoining county; and for each adjournment ex- ceeding one which was granted upon the application of the party against whom the judgment is rendered. § 318. Costs upon demurrer. Where judgment is rendered upon the trial of a demurrer, the costs of the trial must be included therein; otherwise costs are not allowd upon the trial of a demurrer. § 319. When defendant entitled to increased costs. In either of the following cases, a defendant in whose favor a final judgment ia rendered in an action wherein the complaint demands judgment for a sum of money only or to recover a chattel is entitled to recover the costs prescribed in the preceding sections of this article, and in addition thereto one-half thereof: 1. Where the defendant is or was a public officer appointed or elected under the authority of the state or a person specially appointed according to law to perform the duties of such an officer, and the action or special proceeding was brought by reason 424 JUSTICE COUET ACT. of an act done by him by virtue of his office or an alleged omission by him to do an act which it was his official duty to perform; 2. Where the action was brought against the defendant by reason of an act done by the command of such an officer or person, or in his aid or assistance, touching the duties of the office or appointment; 3. Where the action was brought against the defendant for taking a distress, making a sale or doing any other act by or under color of authority of a statute of the state. But this section does not apply where an officer or other person specified herein unites in his answer with a person not entitled to such additional costs. § 320. Costs in action on judgment of justice. In an action upon a judgment of a justice of the peace brought in the county wherein it was rendered within five years after the rendition thereof against a defendant upon whom the summons was personally served, no costs can be recovered, except where the justice who rendered the judgment is dead or out of office or otherwise incapable of acting or has removed from the county or where one of the parties has died, or where the docket of the judgment has been lost or destroyed. § 321. Taxation of costs. Where a justice renders a judgment he must specify in his docket-book the items of costs which were allowed by him. Before any item of costs is thus allowed other than a fee to the justice or to a juror or witness who attended or to a constable who has certified the amount of his fee upon a paper filed with the justice, the party must show by his oath, or that of his attorney, to the satisfaction of the justice that the item was actually and legally paid or incurred. § 322. Costs on judgment for one or more defendants. In an action against two or more defendants not united in interest who make separate defenses by separate answers, if the plaintiff fails to recover judgment against all, the justice must award costs to those who have judgment in their favor. § 323. Costs wrongfully collected may be 'recovered back. Where a justice includes in a judgment a greater amount of costs than is allowed by law or an improper item of costs or fees and the same is collected, the person from whom it was collected may, notwithstanding the judgment, recover from the justice who has received it in the amount thereof with interest. § 324. Fees of justice of the peace in action. A justice of the peace is entitled for the services specified in this section in an action brought before a justice of the peace, to the following fees : For a summons, fifty cents; For an order of arrest, fifty cents ; For a warrant of attachment, fifty cents; For a requisition in an action for a chattel, fifty cents; For a subpoena, including all the names inserted therein, fifty cents; For the acknowledgment of a power of attorney, twenty-five cents ; For taking an affidavit or administering an oath, twenty cents ; For drawing a bond or an undertaking, fifty cents; For drawing an affidavit, application or notice required by statute, ten cents for each folio; For hearing an application for a commission to examine one or more witnesses one dollar; For an order for such a commission, and attending, settling and certifying interroga- tcriss, seventy-five cents; COSTS. 425 For hearing an application to discharge a defendant from arrest or to vacate or modify a warrant of attachment or increase the plaintiff's security thereupon, one dollar; For an adjournment, except where it is made hy the justice upon his own motion, twenty-five cents; . For a venire, fifty cents; For empaneling and swearing a jury, fifty cents ; For hearing the plaintiff's evidence where the defendant does not appear, fifty cents; For the trial of a demurrer, fifty cents; For the trial of an issue of fact where the defendant appears, two dollars for each day actually spent in the trial; For receiving and entering the verdict of a jury, fifty cents ; For entering judgment, fifty cents; For filing each paper required by statute to he filed, ten cents; For a transcript of a judgment, fifty cents ; For a copy of any paper for which a fee is not expressly prescribed by law, ten cents for each folio; For an execution, or the renewal of an execution, fifty cents; For making a return upon an appeal from a judgment, three dollars; For an order directing an action or a special proceeding to be continued before another justice, fifty cents; For services when associated with another justice in any case where a fee therefor is not expressly prescribed by law, for each day actually spent, two dollars. § 325. Fees of justice of the peace in special proceedings or action not before justice of peace. A justice of the peace is entitled, for services in a special proceeding or an action not brought before a justice of the peace to the following fees: For a warrant, in a case where a fee therefor is not expressly prescribed by law, fifty cents; For a warrant for the apprehension of a person charged with being the father of a bastard, seventy-five cents; for indorsing a warrant issued from another county, fifty cents ; For services when associated with another justice in any case where a fee therefor is not expressly prescribed by law, for each day actually spent, two dollars; For a precept or other mandate whereby a special proceeding is commenced in a case where a fee therefor is not specially prescribed by law, fifty cents; For a view of real property in a case where it is required by law, seventy -five cents; For a warrant of attachment to arrest a delinquent juror or witness, fifty cents; For drawing, signing and depositing with the clerk a minute or record of conviction of such a juror or witness or of any person for contempt, in any ease where a fee therefor is not specially prescribed by law, seventy-five cents ; For an execution upon such a conviction before him, fifty cents ; For drawing, copying and certifying a bond, an undertaking, a recognizance or other written security, and filing the same with the county clerk or other officer with whom it must be filed, fifty cents; For a warrant of commitment for any cause, fifty cents; For a subpoena, including all the names inserted therein, fifty cents; For a precept to notify a jury, fifty cents; For empaneling and swearing a jury, fifty cents; except in proceedings to alter or lay out a highway, in which case he is entitled to two dollars; 426 JUSTICE COUET ACT. For hearing the matter concerning which a jury ia called, one dollar for each day actually spent; For receiving and entering the verdict of the jury and the order, if any, thereupon, fifty cents; For any service for vrhieh a fee is not expressly allowed by this section, and for which, if rendered in an action before a justice, a fee is allowed by the last section, the fee is allowed in such an action for the same service; For taking the deposition of a witness upon an order made or commission issued by a court of record of the state or a court in another state or territory or a foreign • country, ten cents for each folio ; For making the necessary return and certificate thereto, one dollar; For taking an affidavit or administering an oath, twenty cents. § 326. Fees of constable. A constable is entitled, for the services specified in this section, to the following fees: ■ 1. In an -action brought before a justice of the peace or in a justice's court of a city : For serving a summons, fifty cents ; For serving a summons and executing an order of arrest, one dollar and fifty cents; For serving a summons and levying a warrant of attachment, one dollar and fifty cents; For serving a summons and aff:davit and executing a requisition in an action for a chattel, one dollar and fifty cents; For serving an order directing the action to be continued before a justice other than the one before whom it is pending and for attending before the latter, one dollar, and one dollar in addition if he so attends with a person in his custody; For collecting money by virtue of an execution for every dollar collected to the amount of twenty -five dollars, ten cents; for every dollar collected over twenty-five dollars, three cents. Where a judgment or an execution is settled after a levy the constable is entitled to poundage upon the sum at which the settlement is made not exceeding the value of the property levied upon; For each mile necessarily traveled going and returning to serve a summons or to serve or execute any other mandate, except a venire, the distance to be computed from the place of abode of the person Served or the place where it is served to the place where it is returnable, fifteen cents; but where two or more mandates in one action are served or executed upon one journey or where a mandate is served upon or executed against two or more persons in one action, he is entitled in all to only fifteen cents for each mile necessarily traveled; For notifying the plaintiff of the execution of an order of arrest, fifty cents; and for going to the plaintiff's residence or, if he is found elsewhere to the place where he is found, to serve such a notice, for each mile traveled going and returning, fifteen cents; For subpoenaing each witness, not exceeding four, fifty cents; For notifying the jurors to attend a trial, two dollars; For taking charge of a jury during their deliberations, one dollar. 2. In a special proceeding: For notifying jurors to attend to assess damages in proceedings relating to highways, two dollars; For notifying jurors to attend in any other case, unless a fee therefor is specially prescribed by law, for each person notified, ten cents; and for each mile actually and necessarily traveled, going from and returning to his place of residence, ten cents; For serving a precept or other mandate by which the special proceeding is com- menced, twenty-five cents; COSTS. 421 For serving a warrant, in any case where a fee therefor is not specially preacribec by law, fifty cents; For serving an order directing the special proceeding to be continued before a justice other than the one before whom it is pending and for attending before the latter witl or without a person in his custody, one dollar; For arresting and committing any person pursuant to process, one dollar; For subpoenaing each witness, not exceeding four, twenty-flve cents; For each mile necessarily traveled going and returning to serve or execute a mandate the distance to be computed from the place where it is served or executed to the placf where it is returnable, unless a different rate of travel fees upon the service or execu tion thereof is specially prescribed by statute, ten cents. Where two or more mandates are served or executed in one special proceeding, the limitation upon the amount ol travel fees specified in the last preceding subdivision applies. § 327. AfSdavit for traveling fees. A constable who charges any traveling fees must show by affidavit that the traye was necessary to perform the service with respect to which it is charged; that no mori miles are charged for than were actually and in good faith traveled for that purpose that he had at the time no other official or private business upon the route se traveled; and that the traveling fees are charged upon one mandate only which musi be attached to or described in the affidavit. The justice taxing the fees must bi satisfied that the miles charged for were actually and necessarily traveled as stated ii the afiidavit. § 328. Costs of commission. A party recovering costs in an action before a justice of the peace in whose behalf £ commission has been issued and who introduces in evidence a deposition taken there under is entitled to recover bis actual disbursements thereupon, not exceeding the fol lowing sums: commissioner's fees for taking and returning testimony, one dollar; eacl subpoena issued or oath administered by the commissioner, six cents; expense o: serving each subpoena, twenty -five cents; each witness's fees for each day's attend ance before the commissioner, twenty-five cents; postage for sending and returning thi commission and papers annexed thereto, one dollar. § 329. Juror's fees. Except as otherwise specially prescribed by law, a person notified to attend as i juror is entitled to twenty-five cents for attending and serving upon the trial of ai action or the hearing of a special proceeding before a justice of the peace, and to tei cents for attending to serve where he is not sworn. § 330. Witness fees. A witness is entitled to twenty-five cents for each day's actual attendance before t justice of the peace in an action or a special proceeding or before a commissionei appointed by a justice of the peace or before a justice of the peace taking a depositioi to be used in a court not of record of another state or a territory of the United States § 331. Prepayment of costs and fees. A justice of the peace, or a constable, juror or witness before a justice of the peac( is not obliged to render any service without the previous payment or tender of his fee therefor § 332. Payment by adverse party of costs and fees. In an action before a justice of the peace, if any services are rendered for a partj and he neglects to pay the fees allowed therefor by law, the other party may pay those fees, and the amount thereof must be taxed as part of his costs if he recovers coats. 428 JUSTICE COUET ACT. § 333. Any peison may subpoena witnesses. Any person may subpoena a witness in justice's court. If such person is not a constable, tie is entitled to a fee of ten cents for each witness subpoenaed, not exceed- ing four. § 334. Provision for fee applies to civil actions only. Except as otherwise expressly prescribed therein, the foregoing provisions relating to fees in justice's court do not apply to a service rendered in a criminal action or proceeding. JOINT DEBTOKS. 429 AElTICSLE 15. JOINT DEBT0B3. Section 335. Judgment against defendants jointly indebted when all are not served. 336. EflFect of such judgment. 337. Docketing judgment; action thereon. 338. Execution, indorsement thereupon. 339. How collected. 340. Action against defendants not personally summoned. 341. Complaint in such action. 342. Answer. ' 343. Provisional remedies. 344. Judgment. § 335. Judgment against defendants jointly indebted when all are not served. In an action wherein the complaint demands judgment for a sum of money against two or more defendants alleged to be jointly indebted upon contract, if the summons is served upon one or more, but not upon all of the defendants, the plaintiff may proceed against the defendant or defendants upon whom it is served, unless the justice other- wise directs ; and, if he recovers final judgment, it may be taken against all the defend- ants thus jointly indebted. § 336. Effect of such judgment. Such a judgment is conclusive evidence of the liability of each defendant upon whom the summons was personally served or who appeared in the action. As against a defendant not summoned it is evidence only of the extent of the plaintiff's demand after the liability of that defendant has been established by other evidence. § 337. Docketing judgment; action thereon. The justice who gives a transcript of a judgment taken as prescribed in section three hundred and thirty-five must distinctly designate in the transcript each defendant who was not summoned. Thereupon the clerk who dockets the judgment must write on the docket opposite or under the name of each defendant on whom the summons was not served the words " not summoned," and a like entry must be made by each county clerk with whom the judgment is afterwards docketed. Tlie judgment, by virtue of its being docketed, does not bind any real property or chattel real owned by such a defendant. An action on a judgment so docketed can be maintained in a justice's court against the defendants summoned only in a like case and with like effect as if they were the only defendants in the original action. § 338. Execution, indorsement thereupon. An execution upon such a judgment must be issued in form against all the defend- ants; but the justice or county clerk must indorse thereupon a direction to the sheriff or constable, as the case may be, containing the name of each defendant who was not summoned and restricting the enforcement of the execution, as prescribed in the next section. § 339. How collected. An execution against the person issued upon such a judgment shall not he enforced against the person of a defendant whose name is so indorsed thereupon. An exeeut'on 430 JUSTICE OOUKT ACT. against property issued upon such a judgment shall not be levied upon the sole prop- erty of such a defendant, but it may be collected out of personal property owned by him jointly with the other defendants who were summoned or with any of them and out of the real and personal property of the latter or of any of them. § 340. Action against defendants not personally summoned. After the recovery of a judgment against joint debtors an action may be maintained by the judgment creditor against one or more of the defendants who were not sum- moned in the original action to recover the sum remaining unpaid on the original judgment. § 341. Complaint in such action. The complaint in such an action must be verified, must contain an allegation that the judgment has not been paid and must state the sum remaining unpaid thereupon at the time of the verification. § 342. Answer. The defendant's answer is restricted to defenses or counterclaims which he might have made in the original action if the summons therein had been served upon him when it was first served upon a defendant jointly indebted with him, objections to the judg- ment, and defenses or counterclaims which have arisen since it was rendered. § 343. Provisional remedies. For the purpose of obtaining an order of arrest or a warrant of attachment the action is regarded as being founded upon the contract upon which the original judg- ment was recovered. § 344. Judgment. Where the judgment is in favor of the plaintiff it must determine the sum remain- ing unpaid upon the original judgment; and it may be docketed and an execution issuo 1 thereupon as if it was a judgment for the sum so remaining unpaid and the costs if any. Costs must be awarded as if the action was brought upon the original contract and the sum so remaining unpaid had been recovered therein. ANIMALS STEAYING 01^ HIGHWAYS. 431 ARTICLE 16. ANIMALS STKAYINQ ON HIGHWAYS. Section 345. Action against person suflfering animals to stray. 346. Penalties to be recovered. 347. Certain ofiBcers to seize animals straying. 348. When private person may seize such animals. 349. Officer or person seizing to present petition. 350. Precept thereupon. 351. Precept; how served. 352. Proof of service of precept. 353. Answer; trial. 354. Decision in favor of petition; warrrant to sell; execution thereof. 355. Application of proceeds of sale.- 356. Disposition of surplus. 357. Disposition of surplus when no claim made within a year. 358. Order upon claim for surplus; appeal therefrom. 359. Proceedings upon decision in favor of person answering. 360. Demand of possession before trial; proceedings thereupon. 361. When animal wilfully set at large by third person. 362. Action by owner in such a case. 363. Action by petitioner and by officer. 364. Demand of possession after final order and before sale. 365. Order upon demand of possession; appeal therefrom. 366. Stay of proceedings. 367. Appeal from final order. 3-68. Appeal by claimant; stay of proceedings and delivery of possession. 369. Proceedings upon affirmance. 370. Limitation of action for seizing animals. 371. Certain actions* cannot be maintained. 372. Where several animals are trespassing damages are entire; proceedinga in such cases. 373. Proceedings in other cases, where there are different owners. 374. Surplus where there are different owners. 375. When one action supersedes any other. 376. Eights of officers when private person fails to prosecute. 377. Person having a special property deemed owner. 378. Agent may act for his principal. § 345. Action against person suffering animals to stray. Any person who suffers or permits one or more cattle, horses, colts, asses, mules, swine, sheep or goats to run at large or to be herded or pastured in a public street, highway, park or place, elsewhere than in a city, incurs thereby the penalty or penal- ties specified in the next section; and any resident of the town, or the officer to whom a fine or penalty is to be paid for the benefit of the poor, as prescribed in section twenty-four of this act, or the overseer or superintendent of the poor of the town or district in which one or more of those animals are found so running at large, herded or pastured, may maintain an action against him in a justice's court held in that town or district to recover the penalty or penalties so incurred. Where the action is brought 432 JUSTICE COUKT ACT. by a private person the justice must pay the proceeds of an execution issued upon a judgment therein in favor of the plaintiff after deducting the costs to the officer who might liave brought the action, as prescribed in this section, to be applied by him to the support of the poor within his town or district. § 346. Penalties to be recovered. If the plaintiff recovers judgment in an action brought as prescribed in the last section the justice must award to him the following sums by way of penalties besides the costs of the action: 1. For each horse, colt, ass, mule, swine, bull, ox, cow or calf, five dollars ; 2. For each sheep or goat, one dollar. The entire amount of the penalties may be recovered in one action although it exceeds the sum for which a justice can render a judgment in an ordinary action. § 347. Certain ofScers to seize animals straying. Where one or more cattle, houses, colts, asses, mules, swine, sheep or goats are found running at large or being herded or pastured in a public street, highway/ park or place, elsewhere than in a city, the town superintendent of the town or, if they are so found within an incorporated village, the street commissioner thereof, having personal knowl- edge or being notified of the fact must immediately seize the animal or animals and keep it or them in his possession until disposed of as prescribed in tte following sec- tions of this article. § 348. When private person may seize such animals. Any person may seize one or more animals specified in the last section, then running at large or being herded or pastured in a public street, highway, park or place, else- where than in a city, bordering upon real property owned or occupied by him, or then trespassing upon real property so owned or occupied, having entered thereupon from such a public street, highway, park or place. The person making the seizure must keep the animal or animals seized in his possession until disposed of as prescribed in the following sections of this article. § 349. OflScer or person seizing to present petition. An ofEcer or other person who seizes an animal or animals, as prescribed in either of the last two sections, must immediately file with a justice of the peace of the town in which the seizure was made a written petition verified by his oath setting forth the facts which bring the case within either of those sections, briefly describing the animal or animals seized, stating either the name of the owner or that his name is not known to the petitioner and cannot be ascertained by Tiim with reasonable diligence, and pray- ing for a final order directing the sale of the animal or animals seized and the appli- cation of the proceeds thereof as prescribed in this article. Where the petition alleges that any animal or animals seized were then trespassing upon real property owned or occupied by the petitioner, it must state the amount of the damages, if any, which the petitioner has sustained thereby. In that case the decision of the justice or, where the issues are tried by a jury, the verdict must fix the amount of the damages. § 350._Precept thereupon. Upon the presentation of the petition the justice must issue a precept under his hand directed to the owner, if his name is stated in the petition, or, if it is not so stated, directed generally to all persons having any interest in the animal or animals seized, briefly reciting the substance of the petition, describing the animal or animals seized and requiring the person or persons to whom the precept is directed to show cause before the justice at a time and place specified therein, not less than ten nor ANIMALS STRAYING ON HIGHWAYS. 433 more than twenty days after the issuing of the precept, why the prayer of the petition «houId not be granted. § 351. Precept; how served. The precept must be served upon the person to whom it is directed by his name within the game time and in like manner as a summons is required to be served, as prescribed in section eighty of this act. Where it is directed generally to all persons having an interest in the animal or animals seized, it may be served by a constable of the town, or by an elector thereof specially authorized so to do by a written indorse- ment upon the precept, under the hand of the justice, by posting a copy thereof in at least six public and conspicuous places in the town where the seizure was made, one of which places must be the nearest district school house, or, if the seizure was made within an incorporated village having schools in charge of a board of education, a building in which such a school is kept. EacB copy must be so posted within two days after the precept Is issued. Where the precept is directed to a person by his name and proof is made by affidavit to the satisfaction of the justice that it cannot with reasonable diligence be personally served upon that person within the county at least six days before the return day thereof, the justice may by a written order direct that service thereof be made by posting copies thereof at least five days before the return day, as prescribed in this section, in which case, service thereof may be made accordingly. § 352. Proof of service of precept. At the place where the precept is returnable and at the expiration of the time specified in section two hundred and fourteen of this act, the petitioner, unless the precept is directed to a person by his name and he appears, must furnish proof of the service of the precept, as prescribed in the last section. If it was served by a constable, either personally or by posting, his written return upon the precept is sufficient proof of the facts relating to the service as stated therein. If it was served by a private person, proof of service must be made by aff.davit. § 353. Answer; trial. The owner, or a person having an interest in any animal seized, may appear upon the return of the precept and thereby make himself a party to the special proceeding. The person so appearing may, upon the return of the precept, file a written answer, subscribed by him or his attorney and verified by the oath of the person subscribing it, denying absolutely or upon information and belief one or more material allegations contained in the petition. His answer must also set forth his interest in the animal or animals seized. The subsequent proceedings must be the same as in an action in a justice's court wherein an issue of fact has been joined, except as otherwise specially prescribed in this article. § 354. Decision in favor of petitioner; warrant to sell; execution thereof. If no person appears and answers or if the decision of the justice or the verdict of the jury, where the issues were tried by a jury, is in favor of the petitioner, the justice must make a final order directing the sale of the animal or animals seized and the application of the proceeds thereof, as prescribed in this article. Thereupon the justice must issue a warrant under his hand and directed generally to any constable of the county commanding him to sell the animal or animals seized at public auction for the best price which he can obtain therefor and to make return thereof to the justice at a time and place therein specified not less than ten nor more than twenty days there- after. The sale must be made upon the like notice and in like manner as a sale of prQ3>erty by virtue of an execution issued by a justice of the peace, and the cocstable 434 JUSTICE GOUBT ACT. must make return as required by the warrant and must pay the proceeds of the sale to the justice, deducting therefrom his fees at the rate allowed by law for the coUec-. tion of 'such an execution. § 355. Application of proceeds of sale. The justice must apply the proceeds of the sale as follows: 1. He musif pay the costs of the petitioner as taxed by the justice at the same ratesj as the costs of an action brought before him, including the justice's fees in such an action; and also the fees for the service of the precept, either personally or by posting, at the rate allowed by law for personal service of a summons by a constable. 2. Out of the remainder of the proceeds he may retain to his own use a fee of one dollar for each animal sold. 3. Out of the remainder of the proceeds he must pay to the officer or other person making the seizure the following fees for the seizure of each animal seized and soldj to wit: one dollar for each horse, colt, ass or mule; fifty cents for each bull, ox, covif; or calf; and twenty -five cents for each goat, sheep or swine; together with a reason- able compensation fixed by him for the care and keeping of each animal from the time of the seizure to the time of the sale; and also where any animal sold was seized while trespassing upon real property owned or occupied by the petitioner, the damages sus- tained by the petitioner in consequence thereof as ascertained by the decision of the justice or the verdict of the jury upon which the final order was made. 4. Out of the remainder of the proceeds he must pay to the officer to whom a fine or penalty is to be paid for the benefit of the poor, as prescribed in section twenty-four of this act, the following penalties, to wit: five dollars for each horse, colt, ass, mwlp, bull, ox, cow, calf or swine seized and sold; and one dollar for each sheep or goat seized and sold; which penalties must be received by the officer for the benefit of the poor of his town or district. 5. If any surplus remains he must pay the same to the person or persons entitled thereto as prescribed in the following sections of this article. § 356. Disposition of surplus. Any person may within ten days after the return of the warrant file with the justice a written claim to the surplus of the proceeds of the sale or to any part thereof. On the eleventh day after the return or, if it is a Sunday or a public holiday, on the first day thereafter which is neither Sunday nor a public holiday, the justice must proceed to inquire into the claims so filed; and, for the purpose of determining them, he must hear the allegations and proofs of each claimant; and he may issue subpoenas, as upon the trial of an action. He may upon the application of any claimant and for good cause shown adjourn the hearing from time to time but not more than thirty days in all. After hearing the allegations and proofs of all the claimants he must decide the claims and enter an order accordingly. If no claim is filed or if the right to the surplus money or any part thereof is not established to the satisfaction of the justice, as pre- scribed in this section, any person whose claim was not determined upon the hearing may file a claim thereto at any time before the expiration of a year from the return of the warrant; and, thereupon, the justice must proceed as prescribed in this section with respect to a claim filed within the ten days. § 357. Disposition of surplus when no claim made within a year. If at the expiration of one year after the return of the warrant any portion of the surplus remains a claim to which has not been established to the satisfaction of the justice pursuant to the provisions of the last section, the justice must pay it for the bpTio^t of the poor to the officer to whom a fine or penalty is to be paid for the benefit of the poor, as prescribed in section twenty-four of this act ; and, thereupon, all persons ANIMALS STEAYING ON" HIGHWAYS. 435 are forever barred from any claim thereto. But if a claim, filed as prescribed in the last section, remains undetermined at the expiration of the year, the justice must ■determine it within ten days thereafter; and, for that purpose, he must retain the surplus in his hands until the determination. § 358. Order upon claim for surplus; appeal therefrom. An appeal from an order determining a claim, as prescribed in the last two sections, may be taken to the county court by a claimant within ten days after the making of the order, as from a, judgment of a justice in an action to recover a sum equal to the claim; and the proceedings thereupon are the same, except that an undertaking is not necessary for any purpose. Upon such an appeal each other claimant whose interest is affected by the order appealed from must be made a respondent. If there is no such claimant the officer entitled to the surplus must be made respondent ; but -costs cannot be awarded against him unless he appears upon the appeal, in which case the costs are in the discretion of the appellate court. Where an appeal, taken as prescribed in this section, is perfected the county judge may in his discretion make an order extending the time within which payment of the surplus must be made as prescribed in the last section and staying payment accordingly. Unless such an order is made and a copy thereof is served upon the justice, payment must be made as prescribed in the last section notwithstanding the appeal; and upon proof of the payment the appeal must be dismissed. Where an appeal is taken to the supreme court from the determination of the county court the county judge or a justice of the supreme court may make a like order and with like effect. ^'359. Proceedings upon decision in favor of person answering. If the decision of the justice, or the verdict of the jury where the issues are tried by a jury, is in favor of the person answering, it must fix the value of each animal seized. If the justice or the jury find that the seizure . was malicious and without probable cause, the decision or verdict must assess the damages sustained by the person answer- ing by means of the seizure and detention. The justice thereupon must make a final order awarding to the person so answering the return of the animal or animals so seized or the value thereof if a return cannot be had, together with his costs at the rates allowed by law in an action brought before him to recover a chattel and also twice the sum assessed as his damages if any. Thereupon a warrant must be issued by the justice to a constable to the same effect as an execution issued in an action tp recover a chattel upon a judgment in favor of the defendant where the chattel has not been delivered to him; and each provision of this act relating to a judgment and an execution in such a case applies to a final order made and a warrant issued thereupon as prescribed in this section. § 360. Demand of possession before trial; proceedings thereupon. At any time after the precept is issued, and before the commencement of the trial, the owner of any animal seized may file with the justice a written demand of the possession thereof. Thereupon he is entitled to the possession, upon complying with the following terms: 1. He must pay to the justice for the use of the petitioner the costs of the proceed- ings to the time of filing the demand, as prescribed in subdivision one of section three hundred and fifty-five of this act, and also the sums payable on account of each animal whereof possession is so deinanded, as prescribed in subdivision three of the same sec- tion; which sums must be fixed by the justice after hearing the allegations and proofs of the parties. 436 JUSTICE COUKT ACT. 2. He must also pay to the justice a fee of one dollar for each animal whereof pos- session is so demanded. 3. If the petitioner is an officer to whom a fine or penalty is to be paid for the benefit of the poor, as prescribed in section twenty-four of this act, the claimant must also pay to the justice for the petitioner's use the sum specified therein on account of each animal whereof possession is so demanded. 4. The claimant must also prove to the satisfaction of the justice by affidavit or other competent evidence that he is the owner of each animal whereof possession is so demanded. Each person who has appeared must have notice of and may oppose the claim. § 361. When animal wilfully set at large by third person. Where, in a case specified in the last section, the person filing a demand presents therewith to the justice sufficient proof by affidavit or otherwise that the running at large, herding, pasturing or trespassing, by reason whereof the animal or animals of which he demands possession were seized, was caused by the wilful act, intended to efi'ect that object, of a person other than the owner, and also makes the proof specified in subdivision four of that section, he is entitled to possession, pursuant to his de- mand, upon paying to the petitioner, or to the justice for his use, a reasonable sum to be fixed by the justice after hearing the allegations and proofs of the parties as com- pensation for the care and keeping of the animal or animals whereof possession is so demanded and without paying any other sum specified in the last section. § 362. Action by owner in such a case. .The owner of an animal, seized in consequence of a wilful act specified in the last section, may recover in an action against the person who committed it all damages sustained by him in consequence thereof including the sum paid in order to recover possession of the animal as prescribed in the last section; and, in addition thereto, the sum of twenty dollars for each animal seized. g 363. Action by petitioner and by ofScer. Where the possession of an animal has been delivered, as prescribed in the last section but one, an action may also be maintained by the petitioner in the special proceeding before the justice against the person who committed the wilful act to recover, in addition to all other damages sustained by the plaintiff in consequence of the wilful act, all sums to which the plaintiff would have been entitled out of the pro- ceeds of the sale as prescribed in section three hundred and fifty-five of this act, other than the compensation paid for the care and keeping of the animal. In the like case, if the petitioner is a private person, the officer to whom a fine or penalty is to be paid for the benefit of the poor, as prescribed in section twenty-four of this act, may main- tain an action against the person who committed the wilful act to recover the penalties to which the plaintiff would have been entitled out of the proceeds of the sale as pre- scribed in that subdivision. Neither of the actions specified in this or the last section is affected by the pendency of, or the recovery of judgment in, either of the others. § 364. Demand of possession after final order and before sale. A person, entitled to demand the possession of an animal, as prescribed in section three hundred and sixty of this act, who did not appear upon the return of the precept or upon the trial, may file with the justice a written demand of the possession at any time after the final order and not less than three days before the time appointed for the sale; and, thereupon, he is entitled to the possession upon complying with the fol- lowing terms: ANIMALS STRAYING ON HIGHWAYS. 437 1. He must furnish by affidavit or other competent evidence a sufficient excuse to the satisfaction of the justice for his failure to appear. 2. He must in all respects comply vrith the provisions of section three hundred and sixty of this act, except that it is necessary for him to pay only one-half of the justice's fees, as prescribed in subdivision two of tliat section, and one-half of the fees payable to the petitioner for the seizure of each animal as prescribed in subdivision three of section three hundred and fifty-five of this act. § 365. Older upon demand of possession; appeal therefrom. Where a demand for the return of the possession of an animal is filed as prescribed in either of the last five sections, the justice, at the request of either party thereto, must make and enter in his minutes an order determining the same. An appeal from such an order may be taken to the county court by the person making the demand or by either party to the special proceeding at any time before the final order in the special proceeding is made; and each person or party so entitled to appeal must be made a respondent upon an appeal taken by one of the others. The appeal must be taken in like manner as an appeal from a judgment of the justice in an action to recover a chattel; and the proceedings thereupon are the same except as othervifise prescribed in the next section. § 366. Stay of proceedings. An appeal from an order specified in the last section ,is not effectual for any purpose unless the appellant procures from the county judge an order directing a stay of the proceedings upon the petition and a stay of the execution of the order appealed from and files it with the justice within the time allowed for the appeal. The order may be granted or refused in the discretion of the county judge, or granted upon such terms as to security or otherwise as he thinks proper; and it. may be vacated or modified, either absolutely or unless further seciirity is given, in his discretion. § 367. Appeal from final order. Within ten days after a final order upon a petition is made, as prescribed in this article, an appeal therefrom may be taken by the petitioner, or by the person answer- ing, in like manner as an appeal from a judgment of the justice in an action to recover a sum of money, equal to the value of the animal or animals, and the proceedings thereupon are the same, except as otherwise prescribed in the next section. § 368. Appeal by claimant; stay of proceedings and delivery of possession. An appeal from a final order taken, as prescribed in the last section, by the person answering is not effectual for any purpose unless the appellant files with a notice of appeal an order of the county judge, or, if he is absent from the county, of a justice of the supreme court, reciting that the appeal has been perfected and that security has been given thereupon, as prescribed in this section, and directing a stay of proceedings upon the final order appealed from and that the possession of the animal or animals seized be delivered to the appellant. The order can be made only where an undertaking is given by the appellant as required' for the purpose of perfecting an appeal from a judgment and staying the execution thereof; and also an undertaking in the same or another instrument to the effect that, if the final order appealed from is affirmed or if the appeal is dismissed, the appellant will pay all sums which the justice awards against him upon the hearing after the determination of the appeal, as prescribed in the next section, not exceeding a sum specified therein; which must be at least twice the amount of all the sums which might be deducted from the proceeds of the sale, as prescribed in section three hundred and fifty-flve of this act. The sum must be fixed and the undertaking must be approved by the judge who grants the order. 438 JUSTICE COITKT ACT. Upon filing the order with the justice the appellant is forthwith entitled to the posses- sion of the animal or animals seized. § 369. Proceedings upon affirmance. If the final order appealed from is afiirmed upon an appeal taken by the person answering the county court must appoint a time and place at which the justice must fix the sums payable by the appellant pursuant to his undertaking. The justice may adjourn the hearing to another place and to another time not exceeding three days after the time so appointed. The justice must fix the sums payable as if a warrant for the sale of the animals seized had been returned and the proceeds thereof paid to him by the constable, as prescribed in section three hundred and fifty-five of this act. The undertaking upon the appeal inures to the benefit of each officer to whom any sum is payable, as prescribed in that section; and, with respect to' any of those sums, the respondent is a trustee for the ofiicer entitled thereto. § 370. Limitation of action for seizing animals. Where an animal is seized upon the ground that it was running at large or was being herded or pastured or was trespassing contrary to the provisions of this article, and the officer or other person making the seizure immediately files his petition and diligently prosecutes the same, as prescribed in this article, an action to recover the animal so seized or to recover damages for the seizure or for any act subsequent thereto must be commenced within one year after the cause of action accrues. § 371. Certain actions cannot be maintained. A person, to whom the precept was directed by his name and who was personally served therewith or a person who has appeared and answered in the special proceeding or demanded the return of any animal seized cannot maintain an action against the officer or other person seizing an animal, or a person acting by his command or in his aid, in a case specified in the last section. But, except as specified in this sec- tion, the owner of an animal seized or detained under color of any provision of this article may maintain an action to recover the animal or its value or damages for the seizure or detention or for any unlawful act subsequent thereto, if, in fact, the animal was not at the time of the seizure running at large or being herded or pastured or trespassing, as the case may be, as specified in the foregoing provisions of this article. § 372. Where several animals are trespassing, damages are entire; proceedings in such cases. For the purpose of determining the damages sustained by the petitioner where two or more animals are found simultaneously trespassing upon real property owned or occupied by him, all the damage done by all the animals seized is to be regarded as done by them jointly; and the petitioner's remedy therefor is entire and must be enforced against all the animals and the proceeds of the sale thereof. Where different persons who are known own different animals seized, the precept must be directed to all of them by their names. If one or more of the owners are known and the others are unknown and cannot be ascertained with reasonable diligence, the precept must be directed to each known owner by his name, and, also generally to all persons having an interest in those animals the owners of which are unknown. In a case specified in this section, a demand of the possession of an animal seized cannot be made, as prescribed in section three hundred and sixty or three hundred and sixty- four of this act, unless it is ma'de with respect to all the animals seized and by persons entitled to the possession of all of them. But a separate demand may be made, as prescribed in section three hundred and sixty-one of this act, by each owner of one or more animals seized; in which case, if possession is delivered to him as ANIMALS STKAYING ON HIGHWAYS. 439 prescribed in that section, the petitioner's remedy for his damages is the same with respect to the animal or animals of which possession is not so delivered and against the proceeds of the sale thereof as if those, whereof possession is so delivered, had not been trespassing upon the property. § 373. Piocediugs in other cases, where there are different owners. Where the petitioner does not allege that the animals seized were trespassing upon real property owned or occupied by him, and different persons own different animals seized, a separate special proceeding may be instituted, as prescribed in this article, against each owner, or against any two or more owners, with respect to the animals owned by him or them. Or the proceedings may be taken against all the owners jointly, in which case each person to whom the precept is directed by his name and each person having an interest in an animal seized has the same right to demand the possession of the animal owned by him and the same right to answer separately as if the special proceeding was against him separately, and the final order may. be in favor of one or more of the persons so answering with respect to the animal or animals owned by him or them and for his or their costs, and against the remainder of the persons answering or to .whom the precept was directed or for the sale of the remainder of the animals in like manner as if the former persons had not answered or had not been named in the precept. But the person first making a demand of the possession of any animal seized must pay all the costs to the time of the demand; and a person subsequently making a demand is excused from the payment of any costs except those which have accrued since the former demand. § 374, Surplus where there are different owners. Where proceedings are taken jointly against different persons who own different animals seized; as prescribed in either of the last two sections, the surplus remaining in the justice's hands' must be distributed between them in proportion to the value of the animals owned by each to be determined by the justice. Any owner may claim separately his proportion of the surplus; and sections three hundred and fifty-six and three hundred and fifty-seven of this act apply to a claim made, and to the disposi- tion of the surplus arising, as prescribed in this section. § 375. When one action supersedes any other. Where two or more persons, or an officer and a private person, are authorized by this article to bring an action or to seize an animal and take the proceedings pre- scribed in this article for the disposition thereof, the commencement of an action or the seizure of the animal by either of them supersedes the right of any of the others to bring such an action or to make such a seizure with respect to the animal seized or in question in the action. But the justice, in his discretion, may allow an officer or other person who is interested in the recovery or in the application of the proceeds of the sale to appear in the action or special proceeding for the purpose of protecting his interest and to take such part in the proceedings therein as the justice thinks proper. § 376. Rights of offfcers when private person fails to prosecute. Where a seizure is made by a private person as prescribed in this article, and the possession of an animal seized is abandoned by him without filing a petition, or where an action, brought by a private person as prescribed in this article, is settled or discontinued by the plaintiff, the officer to whom a penalty is payable, as prescribed in section three hundred and forty-six of this act or in subdivision four of section three hundred and fifty-five of this act, unless he has assented to the abandonment, settlement or discontinuance, may maintain an action against the owner of the animal 440 JUSTICE COURT ACT. in question to recover the penalty so payable to him; and, upon proof of the facts, which would have entitled the plaintiff in the former action, or the petitioner in the special proceeding, to recover, he is entitled to judgment accordingly. § 377. Person having a special property deemed owner. When a person is at the time of the seizure entitled to the possession of an animal as against the general owner thereof by virtue of a special property therein he is deemed for all the purposes of this article the owner thereof. § 378. Agent may act for his principal. The duly authorized agent of the owner or person entitled to the possession of an animal, as specified in the last section, may answer, in his own name, make any demand or take any other proceeding which the owner or person so entitled may take as prescribed in this article. BONDS AND UNDERTAKINGS. 441 AETICiLE 17. SUMMABY PEOCEEDINGS TO EECOVEB POSSESSION Off EEAL FBOPEETT. (This article was repealed by L. 1921, chap. 200.) ARTICLE 18. BONDS AND VNDEETAKINOS. Bection 416. Bond and undertaking; sureties and acknowledgments. 417. Filing bond and undertaking. 418. Certain bonds and undertakings; when suflBcient. 419. Amending defects. 420. Form of bond and undertaking; afiSdavit of sureties; approval. 431. Party need not join with sureties; when one surety sufficient. 422. Deposit after giving bond. 423. Additional security. 424. Bond to people or public officer, for benefit of a suitor. 425. Change of parties. ^ 416. Bond and undertaking; sureties and acknowledgments. A bond or undertaking given in an action or special proceeding as prescribed in this act must be executed by at least one surety, and be acknowledged or proved, and certified in like manner as a deed to be recorded. § 417. Filing bond and undertaking. A bond or undertaking required to be given by this act must be filed with the justice, except where, in a special case, a different disposition thereof is directed by the court or prescribed in this act. §:418. Certain bonds and undertakings; when sufficient A bond or undertaking required by statute to be given by a person to entitle him to a right or privilege or to take a proceeding is sufficient if it conforms substantially to the form therefor prescribed by the statute and does not vary therefrom to the prejudice of the rights of the party to whom or for whose benefit it is given. § 419. Amending defects. Where such a bond or undertaking is defective the court, officer or body that would be authorized to receive it or to entertain a proceeding in consequence thereof if it was perfect may amend it accordingly on the application of the persons who executed it; and it shall thereupon be valid from the time of its execution. § 420. Form of bond and undertaking; affidavit of sureties; approval. A bond or undertaking executed by a surety or sureties as prescribed in this act must where two or more persons execute it be joint and several in form; and, except when executed by a fidelity or surety company or when otherwise expressly pre- scribed by law, it must be accompanied with the affidavit of each surety sub-joined 442 JUSTICE COURT ACT. thereto to the effect that he is a resident of and a householder or a freeholder within the state and is worth the penalty of the bond or twice the sum specified in the under- taking over all the debts and liabilities which he owes or has incurred and exclusive of property exempt by law from levy and sale under an execution. The bond or undertaking, except as otherwise expressly prescribed by law, must be approved by the court before which the proceeding is taken, or a judge thereof, or the judge or justice before whom the proceeding is taken. The approval must be indorsed upon the bond or undertaking. §_421. Party need not join with sureties; when one surety su£Scient. Where a provision of this act requires a bond or undertaking with sureties to be given by, or in behalf of, a party or other person, he need not join with the sureties in the execution thereof unless the provision requires him to execute the same; and the execution thereof by one surety is sufficient, although the word " sureties " is used, unless the provision expressly requires two or more smreties; and the execution of any such bond or undertaking by any fidelity or surety company authorized by the laws of this state to transact business shall be equivalent to the execution of said bond or undertaking by two sureties, and such company, if excepted to, shall justify through its officers or attorney in the manner required by law of fidelity and surety companies. Any such company may execute any such bond or undertaking as surety by the hand of its officers, or attorney, duly authorized thereto by resolution of its board of directors, a certified copy of which resolution under the seal of said company shall be filed with each bond or undertaking. § 422. Deposit after giving bond. It shall be lawful for any party of whom a bond or undertaking is required to agree with his sureties for the deposit of any or all moneys for which such sureties are or may be held responsible with a trust company authorized by law to receive deposits, if such deposit is otherwise proper, and for the safe-keeping of any or all other depositable assets for which such sureties may be held responsible with a safe- deposit company authorized by law to do business as such in such a manner as to prevent' the withdrawal of such moneys and assets, or any part thereof, except with the written consent of such sureties, or an order of the court or the justice made on such notice to them, as it may direct. § 423. Additional security. Where an undertaking has been or shall be given in any action or proceeding the justice, in his discretion, if justice so requires, may order further or other security to be given in addition to such security. Upon cause shown the justice may permit an examination or re-examination of any surety upon any such undertaking. Upon such examination or re-examination, if justice so requires, the justice may require a new surety or sureties to. be furnished or further or other security to be given in addition to the security already given. The justice may enforce such order by any disposition of the action or proceeding that may be proper. § 424. Bond to people or public officer, for benefit of a suitor. Where a bond or undertaking has been given as prescribed by law in the course of an action or a special proceeding to the people or to a public officer for the benefit of a party or other person interested and provision is not specially made by law for the prosecution thereof, the party or other person so interested may maintain an action in his own name for a breach of the condition of the bond, or of the terms of the undertaking, upon procuring an order granting him leave so to do. The order may be made by the county court if the bond or undertaking was given in an action' BONDS AND UNDEKTAKINGS. 443 or proceeding in justice's court, or if the 'bond or undertaking was given in a special proceeding pending before a judge of that court, or in any other case, by the supreme court. Notice of the application therefor must be given as directed by the court or judge to the persons interesfed in the disposition of the proceeds. § 425. Change of parties. A bond or undertaking, given in an action or special proceeding as prescribed in this act, continues in force after the substitution of a new party in place of an original party, or any other change of parties; and has thereafter the same force and effect as if then given anew in conformity to the change of parties. 444 JUSTICE OOUET ACT. ARTICLE 19. APPEALS. Section 426. Justice's judgment reviewed by appeal. 427. Wlio may appeal; to what court appeal to be taken. 428. Appeal; when and how taken. 429. Extending time to appeal... 430. Service of notice upon justice; payment of costs and fees. 431. Service other than personal. 432. Service of notice upon respondent. 433. Amendment; when allowed. 434. Undertaking to stay execution upon judgment. 435. Justification of sureties. 436. Proceedings; how stayed. 437. When justice is dead. 438. Eeturn. 439. Eeturn; when justice has gone out of office. 440. Further return; how compelled. 441. Eeturn; when justice is dead. 442. Appeal for a new trial. 443. Undertaking to be given. 444. Offer to compromise before return. 445. Offer to compromise after return. 446. Date of issue and proceedings in appellate court. 447. Amount of costs on new trial. 448. Motion to amend return. 449. Eespondent may stipulate to reverse judgment. 450. Hearing of appeal; dismissal. 451. Proceedings and judgment on appeal. 452. Costs where new trial is not had. 453. When new trial in justice's court may be directed. 454. Proceedings before justice. 455. Proceedings when error in fact is alleged. 456. Setting off costs and recovery. 457. Certain sums may be included in disbursements. 458. Eestitution upon reversal. 459. Judgment-roll. § 426. Justice's judgment reviewed by appeal. The only mode of reviewing a judgment rendered by a justice of the peace in a civil action is by an appeal, as prescribed in this act. § 427. Who may appeal; to what court appeal to be taken. An appeal may be taken by any party aggrieved by the judgment and must be taken to the county court of the county where the judgment was rendered. § 428. Appeal; when and how taken. An appeal must be taken within twenty days after the entry of the judgment in the justice's docket, except that where a defendant appeals from a judgment rendered APPEALS. 445 in an action wherein he did not appear and the summons was not personally served upon him, the appeal may he taken within ' twenty days after the personal service upon him on the part of the plaintiff of written notice of the entry of the judgment; hut not after the expiration of five years from the entry of the judgment. An appeal is taken by serving upon the justice by whom Ihe judgment was rendered and upon the respondent a written notice of appeal, subscribed either by the appellant or by his attorney in the appellate court. § 429. Extending time to appeal Where a party entitled to appeal from a judgment dies before the expiration of the time within which the appeal may be taken, the court to which an appeal is authorized to be taken, or a judge thereof, may allow the appeal to be taken by the heir, devisee or personal representative of the decedent at any time within four months after his death. A copy of ' an order under this section extending the time to appeal must be served with the notice of appeal. §.430. Service of notice upon justice; pajrment of costs and fees. Service of the notice of appeal upon the justice must be made by delivering it to him personally, or to his clerk appointed pursuant to law, or by mailing such notice to the justice at his office in the manner prescribed in the following section for service of notice by mail; but if the justice is dead, or if neither he nor his clerk can, after reasonable diligence, be found within the county, service of the notice upon the jus- tice may be made by delivering it to the clerk of the appellate court. Unless the jus- tice is dead, the appellant must, at the time of serving the notice, pay to the person to whom it is delivered the costs of the action, included in the judgment, and the sum of two dollars as the fee of the justice for makiilg the return. § 431. Service other than personal. Where the service of the notice of appeal upon the justice is by mail it may be made through the post-office, by depositing the paper, properly inclosed in a post-paid wrapper, in the post-office or in any pbst-ofBce box regularly maintained by the government of the United States and under' the Care of the post-office of the party, or the attorney serving it, directed to the person to be served at the address, within tliB state, designated by him for that purpose, upon the preceding papers in the action; or, where he has not made such a designation, at his place of residence, or the place wheru he keeps an office, according to the best information which can conveniently be obtained concerning the same. § 432. Service of notice upon respondent. Service of the notice of appeal upon the respondent may be made by delivering it, in any part of the state, to the respondent personally, or in one of the following methods: 1. By leaving it at his residence with a person of suitable age and discretion or by serving the notice upon the respondent by mail, or in case an attorney appeared for respondent at the trial, the notice may be served upon the attorney, either personally or in the manner prescribed for service of notice by mail in the preceding section. 2. If service cannot be made with due diligence upon the respondent in the manner prescribed in the foregoing subdivision, the notice of appeal may be served upon him by delivering it to the clerk of the appellate court. § 433. Amendment; when allowed. Where the appellant seasonably and in good faith serves the notice of appeal upon either the justice or the respondent, but omits, through mistake, inadvertence or excusable neglect, to serve it upon the other or to do any other act necessary to 446 JUSTICE COUET ACT. perfect the appeal, the appellate court, upon proof by affidavit of the facts, in its discretion, may permit the omission to be supplied, or an amendment to be made, upon such terms aa justice requires. § 434. Undertaking to stay execution upon judgment. If the appellant desires a stay of execution, he must give a written undertaking, executed by one or more sureties, approved by the justice who rendered the judgment, or by a judge of the. appellate court, to the effect that, if the appeal is dismissed or if judgment is rendered against the appellant in the appellate court and an execution issued thereupon is returned wholly or partly unsatisfied, the siureties will pay the amount of the judgment, or the portion thereof remaining unsatisfied, not exceeding a sum specified in the undertaking, which must be at least one hundred dollars, and not less than twice the amount of the judgment; or, if the pudgment in the justice's court is for the recovery of a chattel, that the sureties will pay the sum fixed by that judg- ment as the value of the chattel, together with the damages, if any, awarded for the taking, withholding or detention thereof. A copy of the undertaking, with a notice of the delivery thereof, must be served with the notice of appeal and in like manner. § 435. Justification of sureties. The attorney for the respondent, within ten days after the, service of a copy of the undertaking with notice of the filing thereof, may serve upon the attorney for the appellant a written notice that he excepts to the sufficiency of the sureties. Within ten days thereafter the sureties, or other sureties in a new undertaking to the same effect, must justify before the justice or a county judge. At least five days' notice of the justification must be given. If the judge or justice finds the sureties sufficient he must indorse his allowance of them upon the undertaking, or a copy thereof, and a notice of the allowance must be served upon the attorney for the exceptant. The effect of a failure so to justify and procure an allowance is the same as if the under- taking had not been given. The judge or justice also shall have power, in case it shall be made to appear to his satisfaction upon motion that the exception was taken unnecessarily or for purposes of vexation or delay, to set the same aside and approve the undertaking. § 436. Pioceedings; how stayed. The delivery of the undertaking to the justice or to his clerk appointed pursuant to law and service of a copy thereof and of notice of the delivery thereof stay the issuing of an execution upon the judgment. If an execution has been issued, the service of a copy of the undertaking, certified by the justice or the clerk, or accompanied with an affidavit showing that it is a copy and that the original has been duly filed, upon the officer holding the execution, stays further proceedings thereunder. § 437. When justice is dead. Where the justice is dead, or cannot, with due diligence, be found within the county, and he has no clerk appointed pursuant to law, or the clerk cannot, with due diligence, be found within the county, the undertaking may be filed with the clerk of the appel- late court. In that case notice of the filing must be given to the respondent as pre- scribed in section four hundred and thirty-two of this act for service of a notice of appeal upon him. The filing of the undertaking has the same effect as the delivery thereof to the justice; and a copy thereof certified by the county clerk, served upon the officer holding an execution, has the same effect as if it was certified as prescribed in the last section. APPEALS. 447 § 438. Return. The justice must, after ten and within thirty days from the service of the notice of appeal and the payment of the costs and fee as prescribed in section four hundred and thirty of this act, make a return to the appellate court, annex thereto the notice of appeal and the undertaking, if any has been delivered to him or to his clerk, and file the same with the clerk of the appellate court. The return must contain all the pro- ceedings, including the evidence and the judgment, unless the appellant has, in his notice of appeal, demanded a new trial in a case where he is entitled thereto as pre- scribed in this article. In the latter case, the justice must return the summons, together with each warrant of attachment, order of arrest, or requisition to replevy, or execution granted by him in the action, with the proof of the service thereof; the pleadings, or copies thereof; the proceedings upon the trial; and the judgment; with a brief statement of the amount and nature of the claims litigated by the parties. But he need not return the evidence or any part thereof unless he is required so to do by the special order of the appellate court. § 439. Return; when justice tas gone out of of&ce. , Where the justice has gone out of office, he, nevertheless, must make a return in the same manner and his return has the same effect as if he remained in office. § 440. Further rettm; how compelled. If the return is defective, the appellate court may direct the justice to make a further or amended return as often as necessary. The appellate court may compel the justice, by attachment, to make and file a return or a further or amended return. The court is always open for those purposes. Where the justice has removed to another county of the state, the appellate court may compel him to make the return as if he was still within the county where the judgment was rendered. § 441. Eetctn when justice is dead. If the justice dies, becomes a lunatic, absconds, removes from the state, or otherwise becomes unable to make the return, the appellate court may receive affidavits, or exainine witnesses, as to the evidence and other proceedings taken, and the judgment rendered, before the justice; and may determine the appeal as if a return had been duly made by the justice. § 442. Appeal for a new trial. Where an issue of fact or an issue of law was joined before the justice and the sum for which judgment was demanded by either party in his pleadings, exceeds fifty dol- lars, or, where in an action to recover a chattel, the value of the property as fixed, together with the damages recovered, if any, exceeds fifty dollars, the appellant, in his notice of appeal, may demand a new trial in the appellate court; and thereupon he is entitled thereto whether the defendant was or was not present at the trial. § 443. Undertaking to he given. To render such an appeal effectual, the appellant, at the time of the service of the notice of appeal upon the justice, must give the undertaking required by this article to stay the execution of the judgment. § 444. Ofiei to compromise before return. Upon an appeal, provided for in this article, from a judgment for a sum of money only, either party, within fifteen days after service of the notice of appeal, may serve upon the adverse party, or upon his attorney, a written offer to allow judgment to be rendered in the appellate court in favor of either party for a specified sum. If the 448 JUSTICE COURT ACT. offer is not accepted it cannot be proved upon the trial. If the party, within ten days after service of the offer upon him, serves upon the party making the same or upon his attorney written notice that he accepts the offer, he must file it with an affidavit of service of the notice of acceptance with the clerk of the appellate coiurt who thereupon must enter judgment accordingly. Where an offer is made as above provided, the party refusing to accept the same shall be liable for costs of the appeal, unless the recovery shall be more favorable to him than the sum offered. If neither party makes an offer, as provided herein, the party in whose favor the verdict, report or decision in the appellate court is given shall be entitled to recover his costs upon the appeal. Costa when awarded according to the provisions of this section shall be in amounts provided in section four hundred and forty-seven. § 445. Offer to compromise after return. Either party, at any time after the action is deemed at issue in the appellate court and before the trial, may serve upon the adverse party a written offer to allow judg- ment to be taken against him for a sum, or property, or to the effect, therein specified, with or without costs. If there are two or more defendants and the action can D6 severed, a like offer may be made by one or more defendants against whom a separate judgment may be taken; and, if it is accepted, the action becomes severed, and may proceed against the other defendants as if it had been originally commenced against them only. If the party receiving the offer, within ten days thereafter, serves upon the adverse party notice that he accepts it, he may file it, with proof of acceptance; and thereupon the clerk must enter judgment accordingly. II the offer is not thus accepted, it cannot be proved upon the trial; and if the party to whom it was made fails to obtain a more favorable judgment, he cannot recover costs from the time of the offer, but must pay costs from that time. § 446. Date of issue and proceedings in appellate court. Upon an appeal, provided for in this article, after the expiration of ten days from the time of filing the justice's return, the action is deemed an action at issue in the appel- late court; and all the proceedings therein, including the entry, enforcement and review of the judgment, are the same as if the action had been commenced in the appellate court, except as otherwise specially prescribed in this act. § 447. Amount of costs or* new trial. Upon an appeal where the appellant is entitled to a new trial in the appellate court costs, when awarded, must be as follows, besides disbursements: For all proceedings before notice of trial, fifteen dollars. For all subsequent proceedings before trial, ten dollars. For the trial of an issue of law, fifteen dollars. For the trial of an issue of fact, twenty dollars. For the argument of a motion for a new trial on a case, fifteen dollars. For each term, not more than five, at which the appeal is regularly on the calendar, excluding the term at which it is tried or otherwise finally disposed of, ten dollars. § 448. Motion to amend return. On appeal from a justice's judgment, where a county court has not jurisdiction by reason of relationship, a notice of inotion for an order to compel the justice to amend his return may be given in twenty days after the date of the certificate of the county judge, and not after that time. *'So in original. APPEALS. 449 §. 449. Respondent may stipulate to reverse judgment. '■ If the ease is one where the appellant is not entitled to, or has not demanded, a new trial in the appellate court, as prescribed in section four hundred and forty-two of this act, the respondent may, within twenty days of the service on him of the notice of appeal serve upon the appellant or his attorney a written stipulation that the judg- ment appealed from may be reversed with five dollars costs and disbursements of the appeal, and thereafter no further steps shall be taken in such appeal, except to enter judgment in pursuance of such stipulation for the enforcement thereof. § 450. Hearing of appeal; dismissal. In case such stipulation shall not be so served, the appeal may be brought to a hear- ing in the appellate court at any term thereof at which such an appeal can be heard held after the return is filed upon a notice by either party of not less than eight days. It must be placed upon the calendar; and must continue thereupon without further notice until it is finally disposed of. If after being regularly placed upon the calendar, neither party brings it to a hearing before the end of the second term thereafter at which it might be noticed for hearing and heard, the court must dismiss the appeal, unless it directs the same to be continued for cause shown. § 451. Proceedings and judgment on appeal. In a case where the appellant is not entitled to, or has not demanded, a new trial in the appellate court, the appeal must be heard upon the original papers or certified copies thereof, and a copy or copies thereof need not be furnished for the use of the court. The appellate court must render judgment according to the justice of the ease without regard to technical errors or defects which do not affect the merits. It may affirm, modify or reverse the judgment of the justice in whole or in part and as to any or all of the parties and for errors of law or of fact, and where the judgment is con- trary to or against the weight of the evidence the appellate court may, upon its reversal of a judgment, order a new trial before the same justice or before another justice of the same county to be designated in the order, and at a time and place to be specified in the order, and in such a case the costs of the appeal shall be in the discretion of the appellate court. § 452. Costs where new trial is not had. On an appeal where a new trial cannot be had in the appellate court, the award and amount of costs are regulated as follows: 1. If the appeal is dismissed because neither party brings it to a hearing, coats shall not be awarded to either party. 2. If the judgment is reversed for an error in fact not affecting the merits; or if a new trial is directed before the same or another justice, the costs of the appeal, not exceeding the amount' hereby allowed in other cases, are in the discretion of the appel- late court. 3. If the judgment is affirmed, the respondent is entitled to twenty-five dollars costs. 4. Tf the judgment is reversed and a new trial is not directed in justice's court, the appellant is entitled to thirty dollars costs. 5. On an affirmance only in part, or any other modification of the judgment, an amount to be fixed by the court not exceeding ten dollars, may be awarded to either party. 6. If a new trial is directed in justice's court, the appellate court may direct that the costs and disbursements of the appeal, to be stated in the order, abide the event of such new trial; or may make such other order in relation to costs as it deems proper, hut the costs so fixed cannot exceed thirty dollars. The disbursements allowed under this subdivision shall be taxed by the judge by whom the order is made, or if ihe appeal is to a court composed of more than one judge, then by any judge of such court. 450 JUSTICE OOUET ACT. § 453. When new trial in justice's court may be directed. On the determination of an appeal where the appellant is not entitled to a new trial in the appellate court, the court may in its discretion reverse or set aside the judg- ment appealed from, or stay proceedings thereunder, and by order direct a new trial before the same or another justice of the same county, designated in the order, at a time and place specified therein, and on such terms as it deems proper. § 454. Proceedings before justice. Where the appellate court directs a new trial before a justice as prescribed in this article, the parties must appear before him at the time and place specified in the order of the appellate court, without service of any notice or of a copy of the order. There- upon the like proceedings must be had in the action, as on the return of a summons personally served, except that if issue was joined in justice's court, the action must proceed on existing pleadings, subject to amendment as provided by this chapter. § 455. Proceedings when error in fact is alleged. Where an appeal is founded upon an error in fact in the proceedings, not affecting the merits of the action, and not within the knowledge of the justice, the court may determine the matter upon affidavits; or, in its discretion, upon the examination of witnesses ; or in both methods. § 456. Setting off costs ard recovery. If, upon the appeal, a sum of money is awarded to one party and costs are awarded to the adverse party, the appellate court must set off the one against the other and render judgment for the balance. § 457. Certain sums may be included in disbursements. Where costs are awarded to the appellant, he may include, in the disbursements upon the appeal, the costs and fee paid to the justice upon taking the appeal; and, where the judgment rendered by the justice was against the appellant, he, also, may include in those disbursements, the costs of the action, before the justice, which he would have been entitled to recover, if the judgment of the justice had been in his favor. § 458. Eestitution upon reversal. Where the judgment of the justice is reversed or modified, the appellate court may make or compel restitution of property or of a right, lost by means of the erroneous judgment; but not so as to affect the title of a purchaser, in good faith and for value, of property sold by virtue of a warrant of attachment in the action, or an execution issued upon the judgment. In that ease, the appellate court may compel the value, or the purchase-price to be restored, or deposited to abide the event of the action, as justice requires. Six days' notice of an application for an order for restitution must be given; and, if the application is granted before judgment, the proper direction may be included therein. § 453. Judgment-roll. The clerk, immediately after entering final judgment upon the determination of an appeal, must attach together and file such of the following papers as were used upon the appeal; which constitute the judgment-roll: 1. The return of the justice, or a certified copy thereof; the notice of appeal; and the undertaking, if any has been given. 2. The verdict, report, or decision, and each offer, if any, made as prescribed in this article. 3. A certified copy of the judgment, together with each notice of exceptions, or case, which is then on file. 4. Every other paper then on file, and a certified copy of every order which in any way involves the merits or necessarily affects the judgment. GENERAL PEOVISIONS. .451 AETICLE 20. GENERAL PEOVISIONS. SEcnoN460. Amendments by justice; disregarding immaterial errors. 461. Abatement of actions. 462. Time for doing any act, how computed. 463. Definition of mandate. 464. General requisites of mandates. 465. Execution of mandate by private person. 466. Constable to execute mandates in person. 467. Sberiff to act ■where execution of mandate is resisted. 468. Docket-book to be kept by justice; entries therein. 469. Entries, how made. 470. Index to docket-book. 471. Justice's docket and transcript evidence before him. 472. Deposit of books and papers with town or city clerk. 473. Certificate in docket-book deposited. 474. Town or city clerk to demand books and papers upon death of justice. 475. Delivery; how compelled. 476. Entries to be evidence. 477. Transfer of action when justice's term expires. 478. When justice is a witness. 479. Proceedings upon transfer. 480. Proof of judgment. 481. Papers to be filed. 482. Justice to furnish copies of papiers. 483. Reward to constable forbidden. 484. Justice or constable not to buy claim. 485. Penalty. 486. Violation of preceding sections a defense to action. 487. Definition of affidavit. 488. Defect in affidavit. 489. Definition of personal injury. 490. Definition of injury to property. 491. Penalty for not paying over money, 492. Justice, when disqualified. § 460. Amendments by justice; disregarding immaterial errors. The justice, upon the trial or at any other stage of the action before or after judg- ment, in furtherance of justice and on such terms as he deems just, may amend any process, pleading or other proceeding by adding or striking out the name of a person as a party, or by eorpecting a mistake in the name of a party, or a mistake in any other respect, or by inserting an allegation material to the case; or, where the amend- ment does not change substantially the claim or defense, by conforming the pleading or other proceedings to the facts proved. And, in every stage of the action, the justice must disregard an error or defect in the pleadings or other proceedings which does not affect the substantial rights of the adverse party. 452 JUSTICE COURT ACT. § 461. Abatement of actions. After a verdict in an action to recover damages for a personal injury, the action does not abate by the death of the party, but the subsequent proceedings are the same as in a case where the cause of action survives. And if the judgment on such a verdict is reversed on questions of law only, and a new trial is ordered before the same or another justice, the action does not abate by the death of the party against whom the same was rendered. § 462. Time for doing any act, how computed. The time within which an act, in an action or special proceeding, is required by lay? to be done must be computed by excluding the first and including the last day; except where it is otherwise specially prescribed by law. If the last day is Sunday or a public holiday it must be excluded. Where the act is required to be done within two days and an intervening day is Sunday or a public holiday, it must also be excluded. § 463. Definition of mandate. The word " mandate " includes a writ, process or other written direction, issued pur- suant to law out of a court, or made pursuant to law by a court, or a judge, or a person acting as a judicial officer and commanding a court, board or other body, or an afficer, or other person named or otherwise designated therein to do, or to refrain from doing, an act therein specified. § 464. General requisites of mandates. A mandate, issued by a justice of the peace, must be signed by him, and may be ■without seal. It must be entirely filled up, at the time when it is delivered to an officer to be executed, so as to have no blank either in the date thereof or otherwise; except that there may be a blank in a subpoena for the name of any or all of the witnesses. A mandate issued and delivered to an officer to be executed, contrary to this section, is void. § 465. Execution of mandate by private person. A justice of the peace who issues any mandate authorized by this act, except a venire, may, at the request of the party, whenever he deems it expedient so to do, empower, by a written authority indorsed upon the mandate, any proper person of full age, not a party to the action, to serve or otherwise execute it. For that purpose the person so empowered lias all the power and authority, and is subject to all the obli- gations and liabilities, of a constable; and his return is evidence in like manner as a constable's. But a person so empowered is not entitled to any fee or reward for his services. § 466. Constable to execute mandate in person. A constable to whom a mandate is directed and delivered as prescribed in this act must execute it in person pursuant to the tenor thereof. He cannot act by deputy in such a, case. § 467. Sheriff to act where execution of mandate is resisted. If a constable to whom a mandate issued by a justice of the peace is directed and delivered, finds, or has reason to apprehend, that resistance will he made to the execu- tion thereof, he may deliver it to the sheriff of the county with a written certificate stating the facts and requiring the sheriff to execute it. Thereupon the sheriff must execute the mandate; and he is subject to all the liabilities attaching to a constable in executing it. Sections four hundred and four hundred and one of the judiciary law apply to a mandate delivered to a sheriff as prescribed in this section. GENEKAL PROVISION'S 453 § 468. Docket-book to be kept by justice; entries therein. A justice of the peace must keep a docket-book in which he must enter: 1. The title of every action or special proceeding commenced before him. 2. The time when the summons, or the mandate for the commencement of the special proceeding was issued; with a statement of the nature of the mandate, and a memo- randum of each order of arrest, warrant of attachment or requisition to replevy granted by him. 3. The time when the parties appeared before him, either without process, or upon the return of the summons, or of the mandate for the commencement of the special proceeding. 4. A concise statement of the substance of each oral pleading, or a memorandum of the filing of each written pleading. 5. Each adjournment; stating upon whose application, and to what time and place, it was made. 6. The issuing of a venire; stating upon whose application it was issued, and the time and place of the return thereof. 7. The time when a trial was had; and, if it was by a jury, the names of all the persons returned as having been notified to attend as jiurors; stating who did not attend; who attended, who were sworn. 8. The name of each witness sworn upon the trial; stating at whose request he was sworn; each objection made to the competency of a witness; and the decision thereupon. 9. The verdict of the jury, and the time of receiving it; or, if the jury disagreed and were discharged, a statement of that fact. 10. A concise statement of the substance of each order made by him in the course of the action or special proceeding. 11. The judgment or final order; and the time of entering it. 12. The execution; the time of issuing it; the kind of execution; the name of the officer to whom it was delivered, and each renewal with the date thereof. 13. The return of each execution; the time of the return; and a statement of any money paid to the justice thereupon, and when and by whom it was paid. 14. Each transcript of the judgment given by him to be filed in the county clerk's office, and the time when it was given. 15. The appeal, if any; and the time of service of the notice of appeal. 16. Such entries shall be made in a book which must be furnished to him by the town clerk of the town in which he resides and to be designated as " justices' civil docket" and to be the property of, and a charge against, such town. § 469. Entries, how made. Each of the entries specified in the last section must be made under the title of the action or special proceeding to which it relates; and, in addition thereto, the justice may enter in like manner any other proceeding had before him in the action or special proceeding which he thinks proper to enter. A docket-hook kept by a justice must be kept open, during the hours when a sheriff's office is required by law to be kept open, for search and examination by any person upon his reaaonable request and to a reasonable extent. § 470. Index to docket-book. A justice of the peace must keep an alphabetical index to all the judgments entered by him in his docket-book ; and he must insert therein the names of all the parties to each judgment, and the page of the book where the judgment is entered. 454 JUSTICE COUKT ACT. § 471. Justice's docket and transcript evidence before him. The docket-book of a justice of the peace within the state, or a transcript thereof certified by him, is evidence before him of any matter required by law to be entered by him therein. § 472. Deposit of books and papers with town or city clerk. If a justice of the peace, either before or after the expiration of his term of office, removes from the town or city wherein he was elected, he must forthwith deposit with the clerk of that town or city his docket-book and all other books and papers in his custody relating to an action or a special proceeding which has been heard by him or commenced before him. A justice who is removed from oflRce, must make a like deposit, within ten days after receiving notice of his removal, or afterwards upon the demand of the clerk of the town or city. But the omission of the justice to make the deposit does not afi'ect the validity of any book or paper so required to be deposited or of any proceeding to which it relates. § 473. Certificate in docket-book deposited. A justice of the peace must make, in each docket-book deposited by him as pre- scribed in the last section, a certificate under his hand to the effect that each judgment or order entered therein was duly rendered or made as therein stated; and that the sum, appearing by the book to be due thereupon, has not been paid to his knowledge. § 474. Town or city clerk to demand books and papers upon death of justice. If a justice of the peace dies, or his ofiice becomes otherwise vacant, the town or city "clerk must demand and receive all books and papers which belonged to the justice in his official capacity from any person having them in liis possession, and such clerk may make and issue a transcript of a judgment so rendered by such a justice of the peace and appearing upon the docket of such justice of the peace so on file in his ofiice, and issue an execution upon any such judgment which has not been docketed in; the office of the county clerk, upon receiving his fees for the same which shall be the same now allowed a justice of the peace for issuing a transcript or transcripts, as the case may be, and such transcript or execution so issued by such clerk shall have the same force and effect as though the same had been issued by such justice of the peace during his term of office. § 475. Delivery; how compelled. If any book or paper, required to be deposited with the town or city clerk as pre- scribed in this article, is withheld, the like proceedings may be had at the instance of the town or city clerk to compel the deposit thereof as are prescribed by law where an officer refuses or neglects to deliver book or paper in his custody as such officer to his successor in office. § 476. Entries to be evidence. An entry made as prescribed by law in the docket-book kept by a justice of the peace, and deposited with the town or city clerk as prescribed in this article is pre- sumptive evidence of the matters of fact stated therein; but the presumption may be repelled by proof. § 477. Transfer of action when justice's term expires. If the term of office of a justice of the peace is about to expire, or he is about to remove from the town or city, before judgment is rendered in an action, or a final order is made in a special proceeding pending before him, he must previously make a written order reciting the fact, and directing the action or special proceeding to be continued before another justice of the same town or city nampd in tbe order. GENEEAL PROVISIONS. 455 § 478. When justice is a witness. If, before an issue of fact is joined in an action or special proceeding, the defendant, or, where he has not been arrested, his attorney, presents to the justice satisfactory proof by affidavit that the justice before whom the action or special proceeding is pending is a material witness for the defendant, without whose testimony he cannot safely proceed to trial, setting forth therein the particular facts and circumstances wliich he expects to prove by him, the justice must forthwith make a written order directing the action or special proceeding to be continued before another justice of the same town or city named in the order. § 479. Froceedings upon transfer. Where an order is made as prescribed in either of the last two sections, the constable must forthwith take it, and all other papers in the action, with the body of the defendant, if he is under arrest, before the justice named in the order. The plaintiff or petitioner must appear forthwith before that justice who must take cognizance of the action or special proceeding, and must proceed therein as if it had been commenced before him. Costs recovered in the action or special proceedings include the fees allowed by law for services performed by the constable and the justice before the transfer, together with the fees allowed by law for the proceedings before the justice to whom the cause is transferred. § 480. Proof of judgment. In an action brought upon a judgment of a justice of the peace who is dead, or out of office, or otherwise incapable of acting, or has removed from the county, or cannot be found therein, the original docket-book of the justice is presumptive evidence of any matter entered therein as prescribed by law; but the presumption may be repelled by proof. If the docket-book is lost or destroyed, or if it cannot be produced, after reasonable effort to obtain it, the like proof may be given respecting the recovery of the judgment as upon any other question of fact. § 481. Papers to be filed. A justice of the peace must carefully file and preserve each affidavit or other paper delivered to him to be filed in an action or special proceeding. § 482. Justice to furnish copies of papers. A justice of the peace must furnish upon request and payment of his fees, to any person interested in a judgment or order entered by him a transcript of the judgment or order, together with a copy of all the entries in his docket-book relating to the cause; a copy of his minutes of the evidence in the cause, or the substance of the testi- mony, if he has not taken minutes; and a copy of any paper on file in the cause; or such portions thereof as are required. § 483. Reward to constable forbidden, A constable shall not ask or receive any money or other valuable thing from any person as a consideration, reward or inducement for omitting or delaying to arrest a person, or to take him to jail, or to sell property by virtue of an execution, or to execute any other duty pertaining to his office; or any money or valuable thing other than the fees expressly allowed to him by law for executing any duty pertaining to his office. § 484. Justice or constable not to buy claim. A justice of the peace or constable shall not buy, directly or indirectly, or be inter- ested in buying, a bond, note, or other demand or cause of action, for the purpose of 456 JUSTICE COUET ACT. bringing an action, or instituting a special proceeding before a justice founded there- upon; nor shall a justice or a constable, either before or after an action or a special proceeding is commenced, lend or advance, or agree to lend or advance, or procure to be lent or advanced, any money or other valuable thing to any person in consideration of, or as a revrard for, or an inducement to, the placing, or having placed in his hands, a debt or other demand or cause of action for prosecution or collection. § 485. Penalty. A justice of the peace or constable who violates a provision of the last two sections is guilty of a misdemeanor; and shall be punished accordingly. A conviction also operates as a forfeiture of his oflEice. § 486. Violation of preceding sections a defense to action. It is a defense to an action brought before a justice of the peace that the demand upon which it was founded was bought and sold, or received for prosecution, contrary to the foregoing provisions of this article. In an action wherein such a defense is interposed, if the plaintiif, after being duly subpoenaed as a witness, fails to attend pursuant to the subpoena; or, if upon the trial or upon his examination as a witness by virtue of a commission, he refuses to answer any question pertinent to show a violation of either of those provisions; the justice, besides punishing him in a proper case for his failure or refusal, must dismiss his complaint. The testimony in such an action of the plaintiff, or any other witness, is not evidence in a criminal prosecution against him for violating either of those provisions. § 487. Definition of afSdavit The word " afi&davit " includes a verified pleading in an action, or a verified petition or answer in a special proceeding. § 488. Defect in affidavit The want of a title, or defect in the title, of an affidavit does not impair it, if it intelligibly refers to the action or special proceeding in which it is made. § 489. Definition of personal injury. A personal injury includes libel, slander, criminal conversation, seduction, and malicious prosecution; also an assault, battery, false imprisonment, or other actionable injury to the person either of the plaintiff, or of anotEer. § 490. Definition of injury to property. An injury to property is an actionable act, whereby the estate of another is lessened, other than a personal injury, or the breach of a contract. § 491. Penalty for not paying over money. A justice of the peace who neglects or refuses, within a reasonable time after demand, to pay any money collected by him in his official capacity to the person entitled thereto is guilty of a misdemeanor, and shall be punished accordingly. A conviction also operates as a forfeiture of his office. § 492. Justice; when disqualified. A justice shall not sit as such in any cause or matter to which he is a party, or in which he has been attorney or counsel, or in which he is interested, or if he is related by consanguinity or affinity to any party to the controversy within the sixth degree. The degree shall be ascertained by ascending from the justice to the common ancestor and descending to the party, counting a degree for each person in both lines, including the justice and the party, and excluding the common ancestor. LAWS REPEALED. 457 ARTICLE 21. LAWS KEPEAI.ED; WHEN TO TAKE EFFECT. Section 493. Laws repealed. 494. When to take eflfeot. § 493. Laws repealed. The sections of the code of civil procedure specified in the schedule hereto annexed, and all acts amendatory thereof or supplemental thereto in force when this act takes, eflfeet, are hereby repealed. When two numbers in such schedule are united by a hyphen both such numbers are included as well as all intermediate numbers. § 494. When to take effect. This act shall take effect April fifteenth, nineteen hundred and twenty-one. SCHEDULE OF LAWS REPEALED. Code of Civil Procedure, §§ 2231-2265, 2861-3115, 3133-3158, 3196-3199, 3202-3214, 3218, 3223-3225, 3225-a, 3226, 3322-3329. 458 CIVIL PRACTICE ACT. PROVISIONS OF THE CIVIL PRACTICE ACT APPLICABLE TO JUSTICES' COURTS. ARTICLE 2. LIMITATIONS OF TIME; GENERAL PROVISIONS. Bection 10. Application of article. 11. Mode of computing periods of limitation. 12. Limitation in case of death without the state. 13. Limitation in action arising outside of the state. 14. Limitation in action by principal for misconduct of deputy or agent. 15. Commencement of action where demand necessary. 16. When action deemed to be commenced. 17. Attempt to commence action in court of record. 18. Attempt to commence action in court not of record. 19. Effect of defendant's absence from state or residence under false name. 20. Effect of death of claimant before expiration of limitation. 21. Effect of death of person liable. 22. Effect of pending action involving decedent's estate. 23. Effect of reversal of judgment or termination of action. 24. Effect of stay of commencement of action. 25. Effect of stay or revocation of arbitration. 26. Effect of discontinuance of action on defense or counterclaim. 27. Effect of war on right of alien. 28. Disability must exist when right accrues. 29. If several disabilities no limitation until all removed. 30. How objection taken, under this article. actions OTHER THAN FOB BECOVEET OF REAL PEOPEBTT. 44. When satisfaction of judgment presumed. 45. Avoidance of apparent payment under execution. 46. Action to redeem from a mortgage. 47. Actions to be commenced within twenty years. 48. Actions to be commenced within six years. 49. Actions to be commenced within three years. 50. Actions to be commenced within two years. 51. Actions to be commenced within one year. 52. Action for penalty given to common informer. 53. Limitation when none specially prescribed. 54. Certain actions by people subject to same limitations. 55. Action against non-resident. 56. Accrual of action on account. 57. Action accruing after death and before grant of letters. 58. Action on bill or note issued as money. 69. Acknowledgment or new promise must be in writing. 60. Certain disabilities excluded from time to commence action. 61. Defense or counterclaim. LIMITATIONS OF TIME. 459 GEITEBAL PKOVISIONS. 5 10. Application of artide. The provisions of this article apply and constitute the only rules of limitation applicable to a civil action or special proceeding, except in one of the following cases: 1. A case where a different limitation is specially prescribed by law or a shorter limitation is prescribed by the written contract of the parties. 2. A case where the time to commence an action has expired when this article takes effect. The word "action" contained in this article is to be construed, when it is necessary so to do, as including a special proceeding or any proceeding therein or in an action. § 11. Mode of computing periods cf limitation. The periods of limitation prescribed by this article, except as otherwise specially pre- scribed therein, must be computed from the timfe of the accruing of the right to relief by action, special proceeding, defense or otherwise, as the case requires, to the time when the claim to that relief is actually interposed by the party as a plaintiff or a defendant in the particular action or special proceeding. § 12. Limitation in case of death without tfie state. If a person against whom a cause of action exists dies without the state, the time which elapses between his death and the expiration of eighteen months after the issuing, within the state of letters testamentary or letters of administration, is not a part of the time limited for the commencement of an action therefor against his executor or administrator. § 13._I.imitation in action arising outside cf the state. Where a cause of action arises outside of this state, an action cannot be brought in a court of this state to enforce such cause of action after the expiration of the time limited by the laws of a state or country where the cause of action arose, for bringing an action upon such cause of action, except where the cause of action originally accrued in favor of a resident of this state. § 14. Limitation in action by principal for misconduct of deputy or agent. Where an injury results from the act or omission of a deputy or agent, the time within which an action to recover damages by reason thereof must be commenced by the' principal against the deputy or agent must be computed from the time when a judgment against the principal for the act or omission is first recovered by the aggrieved person; and a subsequent reversal or setting aside of the judgment does not extend the time. § 15. Commencement of action where demand necessary. Where a right exists, but a demand is necessary to entitle a person to maintain an action, the time within which the action must be commenced must be computed from the time when the right to make the demand is complete except in one of the follow- ing cases: 1. Where the right grows out of the receipt or detention of money or property by an agent, trustee, attorney, or other person acting in a fiduciary capacity, the time must be computed from the time when the person having the right to make the demand has actual knowledge of the facts upon which that right depends. 2. Where there was a deposit of money not to be repaid at a fixed time but only upon a special demand, or a delivery of personal property not to be returned specifi- fally or in kind at a fixed time or upon a fixed contingency, the time must be computed from the rlemand. 460 CIVIL PEACTICE ACT. § 16. When action deemed to be commenced. An action is commenced against a defendant, within the meaning of any provision of this act which limits the time for commencing an action, when the summons is served on him or on a co-defendant who is a joint contractor or otherwise united in interest with him. § 17. Attempt to commence action in court of record. An attempt to commence an action in a court of record is equivalent to the com- mencement thereof against each defendant, within the meaning of each provision of this act which limits the time for commencing an action, when the summons is delivered, with the intent that it shall be actually served, to the sheriff, or, where the sheriff is a party, to a coroner of the county, in which that defendant, or one of two or more co-defendants who are joint contractors or otherwise united in interest with him, resides or last resided; or, if the defendant is a corporation, to a like officer of the county in which it is established by law or wherein its general business is or was last transacted or wherein it keeps or last kept an office for the transaction of busi- ness. But in order to entitle a plaintiff to the benefit of this section, the delivery of the summons to an officer must be followed within sixty days after the expiration of the time limited for the actual commencement of the action by personal service of the summons or by service thereof without the state, upon the defendant sought to be charged, or by the first publication of the summons, as against that defendant, pur- suant to an order for service upon him in that manner or by substituted service of the summons on such defendant within the state pursuant to an order. § 18. Attempt to commence action in court not of record. The last section excluding the provision requiring a publication or service of the summons within sixty days applies to an attempt to commence an action in a court not of record, where the summons is delivered to an officer authorized to serve the same, within the city or town, wherein the person resides or the corporation is located, as specified in that section; provided that actual service thereof is made with due diligence. § 19. Effect of defendant's absence from state or residence under false name. If, when the cause of action accrues against a person, he is without the state, the action may be commenced, within the time limited therefor, after his return into the state. If, after a cause of action has accrued against a person, he departs from the state and remains continuously absent therefrom for the space of one year or more, or if, without the knowledge of the person entitled to maintain the action, he resides within the state under a false name, the time of his absence or of such residence within the state under such false name is not a part of the time limited for the com- mencement of the action. But this section does not apply while a designation made in pursuance of law of a resident of the state on whom a summons may be served for another person or corporation remains in force. § 20. Effect of death of claimant before expiration of limitation. If a person entitled to maintain an action dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced by his representative after the expiration of that time and within one year after his death. § 21. Effect of death of person liable. The term of eighteen months after the death within this state of a person against whom a cause of action exists, or of a person who shall have died within sixty days after an attempt shall have been made to commence an action against him pursuant to LIMITATIONS OF TIME. 461 the provisions of this article, is not a part of the time limited for the commencement of an action against his executor or administrator. If letters testamentary or letters of administration upon his estate are not issued within this state at least six months before the expiration of the time to bring the action, as extended by the foregoing provision of this section, the term of one year after such letters are issued is not a part of the time limited for the commencement of such an action. § 22. Effect of pending action involving decedent's estate. The time during which an action is pending in a court of record between a person or persons and an executor or administrator, wherein the person or persons claim to recover from the executor or administrator any money or other property claimed by said executor or administrator to belong to the estate of the decedent or embraced in the inventory of the assets of said decedent's estate, is not a part of the time limited for the commencement of an action against an executor or administrator, for a claim against the estate of the decedent until the final determination of the action brought to recover said or other property claimed by said executor or administrator to belong to said decedent's estate: 1. Where the claim against the estate of the decedent is liquidated by the recovery of a judgment thereon against an executor or administrator in an action in a court of record after trial on the merits or by judicial settlement in surrogate's court. 2. Where a legatee brings an action or institutes a proceeding against an executor or administrator with the will annexed to enforce the payment of a legacy. § 23. Effect of reversal of judgment or termination of action. If an action is commenced within the time limited therefor, and a judgment therein is reversed on appeal without awarding a new trial, or the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if he dies and the cause of action survives, his representative, may commence a new action for the same cause after the expiration of the time so limited and within one year after such a reversal or termination. § 24. Effect of stay of commencement of action. Where the commencement of an action has been stayed by injunction or other order of a court or judge or by statutory prohibition, the time of the continuance of the stay is not a part of the time limited for the commencement of the action. § 25. Effect of stay or revocation of arbitration. Where the persons who might be adverse parties in an action have entered into a written agreement to submit to arbitration or to refer the cause of action or a contro- versy in which it might be available, or have entered into a written submission thereof to arbitrators, and, before an award or other determination thereupon, the agreement or submission is revoked, so as to render it ineffectual, by the death of either party thereto or by the act of the person against whom the action might have been brought, or the execution thereof, or by the remedy upon an award or other determination there- under, is stayed by injunction or other order procured by him from a competent court or judge, the time which has elapsed between the entering into the written submission or agreement and the revocation thereof or the expiration of the stay is not a part of the time, limited for the commencement of the action. § 26. Effect of discontinuance of action on defense or counterclaim^ Where a defendant in an action has interposed an answer, in support of which he would be entitled to rely, at the trial, upon a defense or counterclaim then existing in his favor the remedy upon which at the time of the commencement of the action, was not barred 462 CIVIL PEACTICE ACT. by the provisions of this article, and the complaint is dismissed, or the action is dis- continued or abates in consequence of the plaintiff's death, the time which intervened between the commencement and the termination of the action is not a part of the time limited for the commencement of an action by the defendant to recover for the cause of action so interposed as a defense, or to interpose the same defense in another action brought by the same plaintiff or a person deriving title from or under him. § 27. Effect of war on right of alien. Where a person is disabled to sue in the courts of the state by reason of either party being an alien subject or citizen of a country at war with the United States, the time of the continuance of the disability is not a part of the time limited for the com- mencement of the action. § 28. Disability must exist when right accrues. A person cannot avail himself of a disability unless it existed when his right of action or of entry accrued. § 29. If several disabilities, no limitation until all removed. When two or more disabilities co-exist when the right of action or of entry accrues, the limitation does not attach until all are removed. § 30. How objection taken, under this article. The objection that the action was not commenced within the time limited can be taken by answer or motion. The corresponding objection to a defense or counterclaim can be taken by reply or motion; escept where a reply is not required in order to enable the plaintiff to raise an issue of fact upon an allegation contained in the answer, ACTIONS OTEEB THAN FOE EECOVEET OP EEAL PEOPEETT. § 44. When satisfaction of judgment presumed. A final judgment or decree for a sum of money or directing the payment of a sum of money, rendered in a court of record within the United States or elsewhere, or a judg- ment of a court of this state not of record docketed in a county clerk's office upon a transcript filed therein pursuant to law, is presumed to be paid and satisfied after the expiration of twenty years from the time when the party recovering it was first entitled to a mandate to enforce it. This presumption is conclusive, except as against a person, who within twenty years from that time makes a payment or acknowledges an indebtedness of some part of the amount recovered by the judgment or decree, or his heir or personal representative, or a person whom he otherwise represents. Such an acknowledgment must be in writing and signed by the person to be charged thereby. A person may avail himself of the presumption created by this section under an allega- tion that the action was not commenced, or that the proceeding was not taken, within the time therein limited. § 45. Avoidance of apparent payment under execution. If the proof of payment under the last section consists of the return of an execu- tion partly satisfied, the adverse party may. show in full avoidance of the effect thereof that the alleged partial satisfaction did not proceed from a payment made, or a sale of property claimed, by him or by a person whom he represents. § 46. Action to redeem from a mortgage. An action to redeem real property from a mortgage with or without an account of rents and profits may be maintained by the mortgagor or those claiming under him LIMITATIONS OF TIME. 463 against the mortgagee in possession, or those claiming under him, unless he or they have continuously maintained possession of the mortgaged premises for twenty years after the breach of a condition of the mortgage, or the non-fulfillment of a covenant therein contained. § 47. Actions to be commenced within twenty years. An action upon a sealed instrument must be commenced within twenty years after the cause of action has accrued. Where the action is brought for breach of a covenant of seizin or against incum- brances, the cause of action, for the purposes of this section only, is deemed to have accrued upon an eviction, and not before. § 48. Actions to be commenced within six years. The following actions must be commenced within six years after the cause of action has accrued: 1. An action upon a contract obligation or liability express or implied, except a judg- ment or sealed instrument. 2. An action to recover upon- a liability created by statute, except a penalty or forfeiture. 3. An action to recover damages for an injury to property, or a personal injury, except in a case where a different period is expressly prescribed in this article. 4. An action to recover a chattel. 5. An action to procure a judgment on the ground of fraud. The cause of action in Hucn a case is not deemed to have accrued until the discovery by the plaintiff or the person under whom he claims, of the facts constituting the fraud. 6. An action to establish a will. Where the will has been lost, concealed or de- stroyed, the cause of action is not deemed to have accrued until the discovery by the plaintiff or the person under whom he claims of the facts upon which its validity depends. 7. An action upon a judgment rendered in a court not of record, except where such judgment shall have been docketed in a county clerk's ofBce of this state upon a transcript filed therein pursuant to law. The cause of action in such a case is deemed to have accrued when final judgment was rendered. § 49. Actions to be oommenced within three years. The following actions must be commenced within three years after the cause of action has accrued: 1. An action against a sheriff, coroner, constable or other officer for the non-payment of money collected upon an execution. 2. An action against a constable upon any other liability incurred by him by doing an act in his official capacity or by the omission of an official duty ; except an escape. 3. An action upon a statute for a penalty or forfeiture where the action is given to the person aggrieved or to that person and the people of the state, except where the statute imposing it prescribes a different limitation. 4. An action against a director or stockhplder of a moneyed coi-poration, or banking association, to recover a penalty or forfeiture imposed, or to enforce a liability created by the common law or by statute. The cause of action is not deemed to have accrued until the discovery by the plaintiff of the facts under which the penalty or forfeiture attached or the liability was created. ■5. An action against an executor, administi;ator or receiver, or against the trustee of an insolvent debtor appointed as prescribed by law in a special proceeding, where 464 CIVIL PKACTICE ACT. the action is brought to recover a chattel, or damages for taking, detaining or injuring personal property, by the defendant or the person whom he represents. 6. An action to recover damages for a personal injury resulting from negligence. § 50. Actions to be commenced within two years. The following actions must be commenced within two years after the cause of action has .accrued : 1. An action to recover damages for libel, slander, assault, battery, seduction, crim- inal conversation, false imprisonment, malicious prosecution or malpractice. 2. An action upon a statute for forfeiture or penalty to the people of the state. § 51. Actions to be commenced within one year. The following actions must be commenced within one year after the cause of action has accrued: 1. An action against a sheriff or coroner upon a liability incurred by him by doing an act in his official capacity or by the omission of an official duty; except the nonpay- ment of money collected upon an execution. 2. An action against any other officer for the escape of a prisoner arrested or im- prisoned by virtue of a civil mandate. § 52. Action for penalty given to common informer. An action upon a statute for a penalty or forfeiture given wholly or partly to any person who will prosecute for the same must be commenced within one year after the commission of the offence, and if the action is not commenced within the year by a private person, it may be commenced within two years thereafter in behalf of the people of the state by the attorney-general or the district-attorney of the county where the offence was committed. § 53. Limitation where none specially prescribed. An action, the limitation of which is not specifically prescribed in this article, must be commenced within ten years after the cause of action accrues. § 54. Certain actions by the people subject to same limitations. The limitations prescribed in this article for actions other than for the recovery of real property apply alike to actions brought in the name of the people of the state, or for their benefit, and to actions by private persons. § 55. Action against noniesident. Where a cause of action, which does not involve the title to or possession of real property within the state, accrues against a person who is not then a resident of the state, an action cannot be brought thereon in a court of the state against him or his personal representative after the expiration of the time limited by the laws of his residence for bringing a like action, provided that if the limitation of the time fixed by the laws of his residence for bringing such action be less than the time fixed by the laws of this state for a like action, the limitation fixed by the laws of this. state shall apply. § 56. Accrual of -action on accoimt. In an action brought to recover a balance due upon a mutual, open and current account, where there have been reciprocal demands between the parties, the cause of action is deemed to have accrued from the time of the last item proved in the account on either side. § 57. Action accruing after death and before grant of letters. For the purpose of computing the time within which an action must be commenced in a court of the state by an executor or administrator, to recover personal property LIMITATIONS OF TIME. 465 taken after the death of a testator or intestate and before the issuing of letters testa- mentary or letters of administration, or to recover damages for taking, detaining or injuring personal property within the same period, the letters are deemed to have been issued within six years after the death of the testator or intestate. But where an action is barred by this section, any of the next of kin, legatees or creditors, who at the time of the transaction upon which it might have been founded was within the age of twenty- one years, or insane, or imprisoned on a criminal charge, may within five years after the cessation of such a disability maintain an action to recover damages by reason thereof; in which he may recover such sum or the value of such property as he would have received upon the final distribution of the estate if an action had been seasonably commenced by the executor or administrator. § 58. Action on bill or note issued as money. This article does not affect an action to enforce the payment of a bill, note or other evidence of debt issued or put in circulation as money. § 59. Acknowledgment or new promise must be in writing. An acknowledgment or promise contained in a writing signed by the party to be charged thereby is the only competent evidence of a new or continuing contract whereby to take a case out of the operation of the provisions of this article relating to the limi- tations of time within which an action must be brought other than for the recovery of real property. But this section does not alter the efi'ect of a payment of principal or interest. § 60. Certain disabilities excluded from time to commence action. If a person entitled to maintain an action other than for the recovery of real prop- crty, except for a penalty or forfeiture, or against a sheriff or other officer for an escape, is at the time when the cause of action accrues, either: 1. Within the age of twenty-one years; or 2. Insane; or 3. Imprisoned on a criminal charge, or in execution upon conviction of a criminal offense, for a term less than for life; the time of such a disability is not a part of the time limited in this article for com- mencing the action; except that the time so limited cannot be extended more than five years by any such disability, except infancy; or in any case more than one year after the disability ceases. § 61. Defense or counterclaim. A cause of action other than for the recovery of real property, upon which an action cannot be maintained as prescribed in this article, cannot be effectually interposed as a defense or counterclaim. 466 CIVIL PEACTICE ACT. ARTICLE 43. EXECUTIONS AGAINST PEOPEBTY. Exemptions Generally. Section 664. Certain special exemptions not affected. Exemptions of Personal Property. 665. Exempt personal property. 666. Woman's exemption as householder. 667. Exemptions to members in military or naval service. 668. Exemption of right of action or damages for taking or injuring personal property. 669. Exemptions of exhibits at exhibitions. Exemptions Generally. § 664. Certain special exemptions not affected. The enumeration in this article of the property which is exempt from levy and sale by virtue of an execution does not repeal any special provision of law relating to such an exemption, which, by its terms, is applicable only to a particular class of persona or corporations, or to a particular locality, or otherwise to a special case. Exemptions of Personal Property. § 665. Exempt personal property. The following personal property when owned by a householder is exempt from levy and sale by virtue of an execution, and each movable article thereof continues to be so exempt while the family or any of them are removing from one residence to another: 1. All stoves kept for use in a dwelling house; one sewing machine, with its appur- tenances. 2. The family bible, family pictures, and school books, used by or in the family; and other books, not exceeding in value fifty dollars, kept and used as part of the family library. 3. A seat or pew occupied by the judgment debtor or the family in a place of public worship. 4. Ten sheep, with their fleeces, and the yarn or cloth manufactured therefrom; one cow; two swine; the necessary food for those animals; all necessary meat, fish, flour, groceries and vegetables, actually provided for family use; and necessary fuel and oil for the use of the family for sixty days. 5. All wearing apparel, beds, bedsteads, and bedding, necessary for the judgment debtor and the family; all necessary coctking utensils; one table; six chairs; six knives; six forks; six spoons; six plates; six tea cups; six saucers; one sugar dish; one milk pot; one tea pot; one coal scuttle; one shovel; and one lamp. 6. The tools and implements of a mechanic, necessary to the carrying on of his trade, not exceeding in value one hundred dollars. 7. In addition to the preceding exemptions, necessary household furniture, working tools, team, professional instruments, furniture and library, not exceeding in value two hundred and fifty dollars, together with the necessary food for the team, for ninety days, are exempt from levy and Bale by virtue of an execution, when owned EXECUTION AGAINST PROPEETY. 467 by a person, being a householder, or having a family for which he provides, except where the execution is issued upon a judgment recovered wholly upon one or more demands either for work performed in the family as a domestic or for the purchase money, of one or more articles, except as prescribed in this section. § 666. Woman's exemption a& householdei. Where the judgment debtor is a woman, she is entitled to the same exemptions from levy and sale by virtue of an execution, subject to the same exceptions, as prescribed in the last section, in the case of a householder. § 667. Exemptions to members in military or naval service. . . The pay and bounty of a non-commissioned officer, musician or private in the military or naval service of the United States or the state of New York; a land war- rant, pension or other reward heretofore or hereafter granted by the United States, or by a state, for military or naval services; a sword, horse, medal, emblem or device of any kind presented as a testimonial for services rendered in the military or naval service of the United States or a state; and the uniform, arms and equipments which were used by a person in that service, are also exempt from levy and sale by virtue of an execution, and from seizure in any legal proceeding. § 668. Exemption of right of action or of damages for taking or injuring personal property. A right of action to recover damages, or damages awarded by a judgment, for taking or injuring personal property exempt by law from levy and sale by virtue of an execution, are exempt, for one year after the collection thereof, from levy and sale by virtue of an execution and from seizure in any other legal proceeding. § 669. Exemptions of exhibits at exhibitions. No execution shall be levied upon articles, goods, wares, merchandise or property of any describtion while the same is en route to or from, or while on exhibition or deposited by exhibitors at any international exhibition held under the auspices or supervision of the United States, within aiiy city or county of the state, nor shall such property be subject to levy or sale, for any cause whatever, in the hands of the authorities of such exhibition or otherwise. 468 CIVIL PEACTICE ACT. ARTICLE 83. SUMMABT PEOCEEDINGS TO EECOVEE POSSESSION OF BEAI, PEOPBETT. Section 1410. When tenant may be removed. 1411. Additional cases in which tenants and others may be removed. 1412 In case of forcible entry or detainer. 1413. Application; to whom made. 1414. Application; by whom made. 1415. Contents of petition. 1416. Notice to be given in certain cases. 1417. Petition by neighbor of bawdy-house or apartment. 1418. Precept; contents. 1419. Precept; return. 1420. Precept; in New York city. 1421. Precept; how served. 1422. Duty of person to whom copy of precept is delivered. 1423. When precept to be served on landlord of bawdy-house or apartment. 1424. Proof of service of precept. 1425. Answer. 1426. Issues upon forcible entry or detainer. 1427. In New York municipal court cause may be transferred to another court for trial. 1428. Trial. 1429. Adjournment. 1430. Final order upon trial. 1431. Amount of costs; how collected. 1432. Warrant to dispossess defendant. 1433. Execution of warrant. 1434. When warrant cancels lease; exceptions. 1435. Stay. 1436. Undertaking; how disposed of. 1437. Redemption by lessee. 1438. Redemption by creditor of lessee. 1439. Effect of redemption upon lease. 1440. Order to be made thereon; liability of persons redeeming. 1441. Appeal. 1442. Effect of appeal limited in certain cases. 1443. Warrants; how stayed, on appeal. 1444. Appellate court may award restitution; action for damages. 1445. Application of article; effect of final order. 1446. How proceedings under this article may be stayed. 1447. Stay and vacation of warrant upon default. § 1410. When tenant may be removed. In either of the following cases, a tenant or lessee at will, or at sufferance, or for part of a year, or for one or more years, of real property, including a specific or undivided portion of a house or other dwelling, and his assigns, undertenants or legal representatives, may be removed therefrom, as prescribed in this article: SUMMAEY PEOCEEDINGS. 469 1. When he holds over and continues in possession of the demised premises or any portion thereof after the expiration of his term without the permission of the landlord, including, elsewhere than in the city of New York, a case where the person to be removed became the occupant of the premises as a servant or employee and the rela- tion of master and servant or employer and employee has been lawfully terminated or the time fixed for such occupancy by the agreement between the parties has expired; but if by such agreement the servant was to be permitted to occupy such premises for a period beyond the term of employment such removal shall not be had under this subdivision unless such period so permitted for occupancy has expired or the relation of master and servant or employer and employee was lawfully terminated before the expiration of such term of employment; but notliing in this subdivision shall be construed as preventing the removal of such occupant in any other lawful manner. 1-a. A public emergency existing, no proceeding as prescribed in subdivision one of this section shall be maintainable to recover the possession of real property in a city of a population of one million or more or in a city in a county adjoining such a city, occupied for dwelling purposes, except a proceeding to recover such possession upon the ground that the person is holding over and is objectionable, in which case the land- lord shall establish to the satisfaction of the court, that the person holding over is objectionable; or a proceeding where the owner of record of the building, being a natural person, seeks in good faith to recover possession of the same or a room or rooms therein for the immediate and personal occupancy by himself and his family as a dwelling; or a proceeding where the petitioner shows to the satisfaction of the court that he desires in good faith to recover premises for the purpose of demolishing the same with the intention of constructing a new building, plans for which new build- ing shall have been duly filed and approved by the proper authority; or a proceeding to recover premises constituting a part of a building and land which has been in good faith sold to a corporation formed under a co-operative ownership plan whereof the entire stock shall be held by the stockholders in proportion to the number of rooms occupied or to be occupied by them in such building and all apartments or flats therein have been leased to stockholders of such corporation for their own per- sonal, exclusive and permanent occupancy to begin immediately upon the termination of any tenancy of the apartments or flats leased by them existing on the date when this subdivision takes effect. In a pending proceeding for the recovery of real property in such a city on the ground that the occupant holds over after the expiration of his term, a warrant shall not be issued unless the petitioner establishes to the satisfaction of the court that the proceeding is one mentioned in the exceptions enumerated in this subdivision. This subdivision shall not apply to a new building in course of construction on Sep- tember twenty-seventh, nineteen hundred and twenty, or commenced thereafter and be in effect only until the first day of Kovember, nineteen hundred and twenty-two. 2. Where he holds over, without the like permission, after a default in the payment of rent, pursuant to the agreement under which the demised premises are held, and a demand of the rent has been made, or at least three days' notice in writing requiring, in the alternative, the payment of the rent, or the possession of the premises, has been served in behalf of the prson entitled to the rent upon the person owing it as pre- scribed in this article for the service of a precept; 2-a. No proceeding as prescribed in subdivision two of this section shall be main- tainable to recover the possession of real property in a city of the first class or in a city in a county adjoining a city of the first class, occupied for dwelling purposes, unless the petitioner alleges in the petition and proves that the rent of the premises described in the petition is no greater than the amount for which the tenant was liable 470 CIVIL PKACTICE ACT. for the month preceding the default for which the proceeding is brought. Nothing in this subdivision shall preclude the tenant from interposing any defense that he might otherwise have. The tenant may interpose the defense that the rent mentioned in the petition is unjust and unreasonable and that the agreement under which the same is sought- to be recovered is oppressive. All the provisions of chapter one hundred and thirty-six of the laws of nineteen hundred and twenty as amended, shall apply to a proceeding brou"ght under this subdivision so far as applicable and not in conflict with the provisions of this subdivision and other provisions of statute governing summary proceedings to recover the possession of real property. This subdivision shall not apply to a room or rooms in a hotel containing one hundred and twenty-five rooms or more, or a lodging house, or rooming house, occupied under a hiring of a week or less; This subdivision as amended shall not apply to a new building in course of construc- tion on September twenty-seventh, nineteen hundred and twenty, or commenced there- after and shall be in effect only until the first day of November, nineteen hundred and twenty-two. 3. Where in any city in this state he holds over and continues in possession of the demised premises, or any portion thereof, after default in the payment, for sixty days after the same shall be payable, of any taxes or assessments levied on such demised premises which he has agreed in writing to pay pursuant to the agreement under which the demised premises are held, and a demand for the payment of such taxes or assess? ments has been made, or at least three days' notice in writing, requiring in the alter- native the payment thereof and of any interest and penalty thereon, or the possession of the premises, has been served in behalf of the landlord upon the lessee, as pre-- scribed in this article for the service of a precept. An acceptance of any rent by the lessor or his legal representatives shall not be construed as a waiver of the agree- ment of the lessee to' pay taxes or assessments so as to preclude the lessor from the benefits of this article; 4. Where he, being in possession under a, lease for a term of three years or less, has during the term taken the benefit of an insolvent act or has been adjudicated a bankrupt under a bankrupt law of the United States; 5. Where the demised premises, or any part thereof, are used or occupied as a bawdy-, house, or house or place of assignation for lewd persons, or for purposes of prostitu- tion, or for any illegal trade or manufacture, or other illegal business. 6. A proceeding seeking to recover possession of real property by reason of the ter? mination of the term fixed in the lease pursuant to a provision contained therein giving the landlord the right to terminate the time fixed for occupancy under such agreement, if he deem the tenant objectionable, shall not be maintainable unless the landlord shall by competent evidence establish to the satisfaction of the court that the tenant is objectionable. § 1411. Additional cases in which tenants and others may be removed. In either of the following cases a person who holds over and continues in posses- sion of real property after notice to quit the same has been given, as prescribed in section fourteen hundred and sixteen of this act, and his assigns, tenants or legal representatives may be removed therefrom, as prescribed in this article: 1. Where the property has been sold by virtue of an execution against him or a person under whom he claims and a title under the sale has been perfected; 2. Where the property has been duly sold upon the foreclosure by advertisement of a mortgage executed by him or a person under whom he claims and the title under the foreclosure has been duly perfected; 3. Where he occupies or holds the property under an agreement with the owner to occupy and cultivate it upon shares or for a share of the crops and the time fixed in the agreement for his occupancy has expired: SUMMARY PROCEEDINGS. 471 4. Where he or the person to whom he has succeeded has intruded into or squatted upon any real property without the permission of the person entitled to the possession thereof and the occupancy thus commenced has continued without permission from the latter; or, after a permission given by him has been revoked, and notice of the revocation given to the person or persons to be removed. § 1412. In case of forcible entry or detainer. An entry shall not be made into real property, but in a case where entry is given by law; and, in such a case, only in a peaceable manner, not with strong hand, nor with multitude of people. A person who makes a forcible entry forbidden by this section, or who, having peaceably entered upon real property, holds the possession thereof by force, and his assigns, under-tenants, and legal representatives, may be removed there- from, as prescribed in this article. § 1413. Application; to whom made. Application for the removal of a person from real property, as prescribed in this article, may be made to a justice of the peace of a town, or if the property is situ- ated in an incorporated village which includes parts of two or more towns, to a jus- tice of the peace of either town who keeps an office in the village. Application also may be made to the county judge or special county judge; or in the county of New York to a judge of the city court of the city of New York; to a justice of the peace of a city; to a judge or justice of any inferior local court of civil jurisdiction in a city; to the recorder of a city; in the city of New York to the municipal court of the municipal court district in which the real property or a portion thereof is situated, or if the justice sitting therein is disqualified, to the municipal court in an adjoining district. Except as provided in this section such jurisdiction shall only be exercised by a court or officer of the county, town, city or municipal court district in which the real prop- erty or a portion thereof is situated. § 1414. Application; by whom made. The application may be made by: 1. The landlord or lessor of the demised premises: 2. The purchaser upon the execution or foreclosure sale; 3. The person forcibly put out or kept out; 4. The person with whom, as owner, the agreement was made, or the owner of the property occupied under an agreement to cultivate the property upon shares or for a share of the crops; 5. The person lawfully entitled to the possession of the property intruded into or squatted upon, as the case requires; 6. The legal representative, agent or assignee of the landlord, purchaser or other person so entitled to apply; 7. The person or corporation authorized by this article to proceed to remove persons using or occupying premises or a part thereof as a bawdy-house, or house or place of assignation for lewd persons, or for purposes of prostitution. § 1415. Contents of petition. The applicant must present to the judge or justice a written petition verified in like manner as a verified complaint in ah action, describing the premises of which the possession is claimed and the interest therein of the petitioner or the person whom he represents, stating the facts which, according to the provisions of this article, authorize the application by the petitioner and the removal of the person in possession, naming or otherwise intelligibly designating the person or persons against whom the special 472 CIVIL PKACTICE ACT. proceeding Is instituted, and, if there are two or more such persons and some are undertenants or assigns, specifying who are principals or tenants and who are under tenants or assigns, and praying for a final order to remove him or them respectively. § 1416. Notice to be given in certain cases. Where the person to be removed is a tenant at will or at sufferance the petition must state the facts showing that the tenancy has been terminated by giving notice as required by law. Where the application is made in a case specified in section three hundred and eighty of this act, the petition must state that a notice in behalf of the applicant requiring all persons occupying the property to quit the same by a day therein specified has been either served personally upon the person or persons to be removed or affixed conspicuously upon the property at least ten days before the day specified therein. § 1417. Petition by neighbor of bawdy-house or apartment. An owner or tenant, including a tenant of one or more rooms of an apartment house or tenement house, of any premises within two hundred feet from other demised real property used or occupied in whole or in part as a bawdy-house, or house or place of assignation for lewd persons, or for purposes of prostitution, or any domestic cor- poration organized for the suppression of vice, subject to or which submits to visitation by the state board of charities and possesses a certificate from such board of such fact and of conformity with its regulations, may serve personally upon the owner or landlord of the premises so used or occupied, or upon his agent, a written notice requir- ing the owner or landlord to make an application for the removal of the person so using or occupying the same. If the owner or landlord, or his agent, does not make such application, within five days thereafter; or, having made it, does not in good faith diligently prosecute it, the person or corporation giving the notice may make an application for such removal on a petition stating the jurisdictional facts, which application shall have the same effect, except as otherwise expressly prescribed in this article, as though the applicant were the owner or landlord of the premises, and shall have precedence over any similar application thereafter made by such owner or land- lord or to one theretofore made by him and not prosecuted diligently and in good faith. Proof of the ill repute of the demised premises or of the inmates thereof or of those resorting thereto shall constitute presumptive evidence of the unlawful use of the demised premises required to be stated in the petition for removal. § 1418. Precept; contents. The judge or justice to whom a petition is presented, as prescribed in either of the foregoing sections of this article, thereupon must issue a precept directed to the person or persons designated in the petition as being in possession of the property and requir- ing him or them forthwith to remove from the property, describing it, or to show cause before him at a time and place specified in the precept why possession of the property should not be delivered to the petitioner, or, in the case specified in the last section, to the owner or landlord. § 1419. Precept; return. The precept must be returnable not less than five nor more than ten days after it is issued; except that, where the proceeding is taken upon the ground that a tenant continues in possession of demised premises after the expiration of his term without the permission of his landlord and the application is made on the day of the expira- tion of the lease or on the next day thereafter, the precept may, in the discretion of the judge or justice, be made returnable on the day on which it is issued at any time after twelve o'clock noon and before six o'clock in the afternoon. SUMMARY PEOCEEDINGS. 473 § 1420. Precept; in New York city. In the city of New York where the application is made to a municipal court, the petition must be filed with, and the precept must be issued by, the clerk of the court; and the precept must be made returnable before the court at the place designated pursuant to law for holding the court; and all subsequent proceedings in the cause must be had at that place, except ara otherwise prescribed in section fourteen hundred and twenty-seven of this act. If, upon the return of the precept, or upon an adjourned day, the justice is unable by reason of absence from the court room or sickness to hear the cause, or it is shown by affidavit that he is for any reason disqualified to sit in the cause, or is a necessary and material witness for either party, the cause may be heard in the municipal court of an adjoining district. § 1421. Precept; how served. The precept must be served as follows: 1. By delivering to the person to whom it is directed, or, if it is directed to a cor- poration, to an officer of the corporation upon whom a summons issued out of the supreme court in an action against the corporation might be served, a copy of tlie precept together with a copy of the petition and at the same time showing him the original precept. 2. If the person to whom the precept is directed resides in the city or town in which the property is situated but is absent from his dwelling-house, service may be made by delivering a copy thereof, together with a copy of the petition, at his dwelling- house, to a person of suitable age and discretion who resides there; or, if no such person can with reasonable diligence be found there upon whom to make service, then by delivering a copy of the precept and petition at the property sought to be recov- ered, either to some person of suitable age and discretion residing there, or, if no such person can be found there, to any person of suitable age and discretion employed there. 3. Where service cannot with reasonable diligence be made as prescribed in either of the foregoing subdivisions of this section, by affixing a copy of the precept and peti- tion upon a conspicuous part of the property. If the precept is returnable on the day on which it is issued, it must be served at least two hours before the hour at which it is returnable; in every other case, it must be served at least five days before the day on which it is returnable. § 1422. Duty of person to whom copy of precept is delivered. A person to whom a copy of a precept directed to another is delivered, as prescribed in this article, must deliver it to the person to whom it is directed, without any avoidable delay, if he can be found within the same town or city; or, if he cannot be so found, to his agent therein; and if neither can be so found after the exercise of reasonable diligence before the time when the precept is returnable, to the judge or justice who issued the same at the time of the return thereof with a written state- ment indorsed thereupon that he has been unable after the exercise of reasonable dili- gence to find the person to whom the precept is directed or his agent within the town or city. A person who wilfully violates any provision of this section is guilty of a misdemeanor; and, if he is a tenant upon the property, forfeits to his landlord the value of three years' rent of the premises occupied by him. A copy of this section must be indorsed upon each copy of a precept served otherwise than personally upon the person to whom it is directed. § 1423. When precept to be served on landlord of bawdy-house or apartment. Where the case is within section fourteen hundred and seventeen of this act, the precept must be directed to and served upon the owner or landlord or his agent and 474 CIVIL PRACTICE ACT. also upon the tenant or occupant of the property. Either or both of them upon the return day may appear and show cause why the tenant or occupant should not be removed from the property. § 1424. Proof of service of precept. At the time when the precept is returnable th& petitioner must, unless the adverse party appears, make due proof of the service thereof showing the time, and the place and manner of service; and, unless service was made personally upon the adverse party or by affixing a copy of the precept, the name of the person to whom a copy of the precept was delivered if his name can be ascertained with reasonable diligence. Where service is made by a sheriff, constable or marshal, it may be proved by his certificate stating the facts. § 1425. Answer. At the time when the precept is returnable without waiting as prescribed in an action before a justice of the peace, or in a municipal court in the city of New York, the person to whom it is directed or his landlord, or any person in possessitin' or claiming possession of the premises or a part thereof, may answer, orally or in writing, denying generally the allegations, or specifically any material allegation of the peti- tion, or setting forth a statement of any new matter constituting a legal or equitable defense, or counterclaim. Such defense or counterclaim may be set up and estab- lished in like manner as though the claim for rent in such proceeding was the subject of an action. If such answer be oral, the substance thereof shall be indorsed upon the petition. If the court finds that a defense or counterclaim has been established in whole or in part, it shall, upon rendering a final order, determine the amount of rent due to the petitioner or make such other proper disposition as shall determine the rights of the parties, and may give affirmative judgment for the amount found to be due on the counterclaim. If such answer be oral the substance thereof shall be endorsed upon the petition. § 1426. Issues upon forcible entry or detainer. Where the Application is founded upon an allegation of forcible entry or forcible holding out, the petitioner must allege and prove that he was peaceably in actual possession of the property at the time of the forcible entry, or in constructive posses- sion at the time of a forcible holding out, and the adverse party must either deny the forcible entry or the forcible holding out, or allege in his defense that he, or his ancestor, or those whose interest he claims, had been in quiet possession of the prop- erty for three years together next before the alleged forcible entry or detainer; and that his interest is not ended or determined at the time of the trial. § 1427. In New York municipal court cause may be transferred to another court for trial. In a municipal court of the city of New York at the time of joining issue the justice sitting in the cause, in his discretion, upon motion of either party, or, if no justice is present, the clerk, by consent of both parties, may make an order transferring the cause for trial to a court of an adjoining district which thereupon has the same juris- diction and power at its own court house as if the property was situate within its district. § 1428. Trial. The issues joined by the petition and answer must be tried by the judge or justice, imless either party to such proceedings, at the time designated in such precept for SUMMARY PEOCEEDINGS. 475 showing cause, shall demand a jury and at the time of such demand pay to such judge or justice the necessary costs and expenses of obtaining such jury. If a jury be demanded and such costs and expenses be paid, the judge or justice with whom such petition shall be filed shall nominate twelve reputable persons qualified to serve as jurors in courts of record, and shall issue his precept directed to the sheriff or one of the constables of the county, or any constable or marshal of the city or town, commanding him to summon the person so nominated to appear before such judge or justice at such time or place as he shall therein appoint, not more than three days from the date thereof, for the purpose of trying the said matters in difference. Six of the persons so summoned shall be drawn in like manner as jurors in justices' courts and shall be sworn by such judge or justice well and truly to hear, try and determine the matters in difference between the parties. After hearing the allegations and proofs of the parties, the said jury shall be kept together until they agree on their verdict by the sheriff or one of his deputies or a constable or by some proper person appointed by the judge or justice for that purpose who shall be sworn to keep such jury as is usual in like cases of courts of record. If such jury cannot agree after being kept together for such time as such judge or justice shall deem reasonable, he may discharge them and nominate a new jury and issue a new precept in manner aforesaid. § 1429. Adjournment. At the time when issue is joined the judge or justice, in his discretion at the request of either party and upon proof to his satisfaction by affidavit or orally that an adjourn- ment is necessary to enable the applicant to procure Bis necessary witnesses, or by consent of all the parties who appear, may adjourn the trial of the issue, but not more than ten days, except by consent of all parties. § 1430. Final order upon trial. If sufficient cause is not shown upon the return of the precept, or if the verdict of the jury, or the decision of the judge or justice upon a trial without a jury, is in favor of the petitioner, the judge or justice must make a final order awarding to the petitioner the delivery of the possession of the property; except that, where the case is within section fourteen hundred and seventeen of this act, the final order must direct the removal of the occupant. In either case the final order must award to the petitioner the costs of the special proceeding. If the verdict or decision is in favor of the person answering, the judge or justice must make a final order accordingly, and awarding to him the costs of the special proceeding. § 1431. Amount of costs; how collected. Costs, when allowed, and the fees of officers, except where a fee is specially given by law, must be at the rate allowed by law in an action in a justice's court, and are limited in like manner; unless the application is founded upon an allegation of forcible entry or forcible holding out, in which case, the judge or justice may award to the successful party a fixed sum as costs, not exceneding fifty dollars, in addition to his disbursements. If the final order is made by a county judge, or a special county judge, or by a recorder, an execution to collect the costs may be issued thereupon as if it was a judgment of a justice of the peace of the same city or county; and for that purpose the officer takes the place of a justice of the peace. In every other case an execution may be issued to collect the costs awarded thereby as if the final order was a judg- ment rendered in the court of which the judge or justice is the presiding officer. § 1432. Warrant to dispossess defendant. Where the final order is in favor of the petitioner, the judge or justice must there- upon issue a warrant under his hand directed to the sheriff of the county or to any 476 CIVIL PEAOTICE ACT. § 1434. When warrant cancels lease; exceptions. constable or marshal of the city in which the property, or a portion thereof, is situated, or, if it is not situated in a. city, to any constable of any town of the county, describ- ing the property, and commanding the officer to remove all persons therefrom, and also, except where the ease is within section fourteen hundred and seventeen, to put the peti- tioner into the full possession thereof. § 1433. Execution of warrant. The officer to whom the warrant is directed and delivered must execute it according to the command thereof, between the hours of sunrise and sunset. The issuing of a warrant for the removal of a tenant from demised premises cancels the agreement for the use of the premises, if any, under which the person removed held them, and annuls accordingly the relation of landlord and tenant, except that it does not prevent a landlord from recovering by action any sum of money which was at the time when the precept was issued payable by the terms of the agreement as rent for the premises, or the rasonable value of the use and occupation thereof to the time when the warrant was issued, for any period of time with respect to which the agree- ment does not make any special provision for payment of rent. § 1435. Stay. The party against whom a final order is made requiring the delivery of possession to the petitioner may stay the issuing thereof at any time before a warrant is issued and also stay an execution to collect the costs, as follows: 1. Where the final order establishes that a lessee or tenant holds over after a default in the payment of rent, or of taxes or assessments, he may eiiect a stay by depositing the amount of the rent due or of such taxes or assessments, and interest and penalty, if any thereon due, and the costs of the special proceeding, with the clerk of the court, or where the off.ce of clerk is not provided for, with the judge or justice who shall thereupon, upon demand, pay the amount deposited to the petitioner or his duly authorized agent; or by delivering to the judge or justice, or the clerk of the court, his undertaking to the petitioner in such sum and with such sureties as the judge or justice approves to the effect that he will pay the rent, or such taxes or assessments, and interest and penalty and costs within ten days, at the expiration of which time a warrant may issue, unless he produces to the judge or justice satisfactory evidence of the payment; 2. Where the final order establishes that a lessee or tenant has taken the benefit of an insolvent act, or has been adjudicated a bankrupt, he may effect a stay by paying the costs of the special proceeding and by delivering to the judge or justice, or the clerk of the court, his undertaking to the petitioner in such a sum and with such sureties as the judge or justice approves to the effect that he will pay the rent of the premises as it has become or thereafter becomes due; 3. Where the final order establishes that the person against whom it is made con- tinues in possession of real property which has been sold by virtue of an execution against his property, he may effect a stay by paying the costs' of the special proceed- ing, and delivering to the judge or justice, or the clerk of the court, an affidavit that he claims the possession of the property by virtue of a right or title acquired after the sale or as guardian or trustee for another; together with his undertaking to the peti- tioner in such a sum and with such sureties as the judge or justice approves to the effect that he will pay any costs and damages which may be recovered against him in an action of ejectment to recover the property brought against him by the peti- tioner within six months thereafter; and that he will not commit any waste upon or injury to the property during his occupation thereof. SUMMAET PKOCEEDII^GS. 476a § 1436. Undertaking; how disposed of. Where an undertaking is given in a case specified in subdivision one of the last section the judge or justice must deliver it to the person against whom the final order was made upon his producing the evidence of payment mentioned in that subdivision. If he does not produce such evidence within ten days, the judge or justice must deliver it to the petitioner. In every other ease specified in the last section the judge or justice must deliver the undertaking to the petitioner immediately after his approval thereof. § 1437. Redemption by lessee. Where the special proceeding is founded upon an allegation that a lessee holds over after a default in the payment of rent, and the unexpired term of the lease under which the premises are held exceeds five years at the time when the warrant is issued the lessee, his executor, administrator or assignee, at any time within one year after the execution of the warrant, may pay or tender to the petitioner, his heir, executor, administrator or assignee, or if, within five days before the expiration of the year, he cannot be found, with reasonable diligence, within the city or town wherein the prop- erty or a portion thereof is situated, then to the judge or justice who issued the war- rant, or his successor in oflF-ce, all rent in arrear at the time of the payment or tender with interest thereupon and the costs and charges incurred by the petitioner. There- upon the person making the payment or tender shall be entitled to the possession of the demised premises under the lease and may hold and enjoy the some according to the terms of the original demise, except as otherwise prescribed in the next section but one. § 1438. Redemption by creditor of lessee. In a case specified in the last section, a judgment creditor of the lessee whose judg- ment was docketed in the county before the precept was issued, or a mortgagee of the lease whose mortgage was duly recorded in the county before the precept was issued, may, at any time before the expiration of one year after the execution of the warrant, unless a redemption has been made as prescribed in the last section, file with the judge or justice who issued the warrant, or with his successor in office, a notice specifying his interest and the sum due to him, describing the premises, and stating that it is his intention to redeem as prescribed in this section. If a redemption is not made by the lessee, his executor, administrator, or assignee within a year after the execution of the warrant, the person so filing a notice, or, if two or more persons have filed such notices the one who holds the first lien, at any time before two o'clock of the day, not a Sunday or a public holiday, next succeeding the last day of the year, may redeem for his own benefit in like manner as the lessee, his executor, administrator or assignee might have so redeemed. Where two or more judgment creditors or mortgagees have filed such notices, the holder of the second lien may so redeem at any time before two o'clock of the day, not a Sunday or a public holiday, next succeeding that in which the holder of the first lien might have redeemed; and the holder of the third and each subsequent lien may redeem in like manner at any time before two o'clock of the day, 476b CIVIL PKAOTICE ACT. not a Sunday or a public holiday, next succeeding that in which his predecessor might have redeemed. But a second or subsequent redemption is not valid unless the person redeeming pays or ttnders to each of his predecessors who has redeemed the sum paid by him to redeem and also the sum due upon his judgment or mortgage; or deposit those sums with the judge or justice for the benefit of his predecessor or predecessors. § 1439. Effect of redemption upon lease. Where a redemption is made, as prescribed in either of the last two sections, the rights of the person redeeming are subject to a lease, if any, executed by the peti- tioner since the warrant was issued, so far that the new lessee, his assigns, under- tenants, or other representatives, upon complying with the terms of the lease, may hold the premises so leased until twelve o'clock, noon, of the first day of May next succeeding the redemption. And in all other respects, the person so redeeming, his assigns and representatives succeed to all the rights and liabilities of the petitioner under such a lease. § 1440. Order to be made thereon; liability of persons redeeming. The person redeeming, as prescribed in the last three sections or the owner of tlie property so redeemed, may present to the judge or justice who issued the warrant, or to his successor in ofiBce, a petition duly verified setting forth the facts of the redemp- tion and praying for an order establishing the rights and liabilities of the parties upon the redemption. Whereupon the judge or justice must make an order requiring the other party to the redemption to show cause before him at a time and place therein specified why the prayer of the petition should not be granted. The order to show cause must be made returnable not less than two nor more than ten days aftei it is granted; and it must be served at least two days before it is returnable. Upon the retmrn thereof, the judge or justice must hear the allegations and proofs of the parties ard must make such a final order as justice requires. The costs and expenses must be paid by the petitioner. The final order, or a certified copy thereof, may be recorded in like manner as a deed. A person, other than the lessee, who redeems as prescribed in the last three sections succeeds to all the duties and liabilities of the lessee accruing after the redemption as if he was named as lessee in the lease. § 1441. Apped. An appeal may be taken from a final order made as prescribed in this article to the same court, within the same time, and in the same manner as where an appeal is taken from a judgment rendered in the court of which the judge or justice is the presiding ofiScer, and with like effect, except as otherwise prescribed in the next two sections. g 1442. Efiect of appeal limited in certain cases. The issuing or execution of the warrant can not be stayed by such an appeal, or by the giving of an undertaking thereupon, otherwise than as prescribed in the next section. An appeal can not be taken to the court of appeals from a final determination of the appellate division of the supreme court upon such an appeal, unless the latter SUMMAKY PKOCEEDINGS. 476e court by an order made at the term of the appellate division where the final order is made, or the next term thereafter, allows it to be taken. § 1443. Warrants; how stayed on appeal. Where an appeal is taken from a final order awarding delivery of possession to the petitioner which establishes that a lessee or tenant holds over after a default in pay- ment of rent, or after the expiration of his term, or from an order or judgment affirm- ing such final order, the issuing and execution of the warrant may be stayed by the order of the county judge, and in the city and county of New York by a justice of the supreme court, or in any case by the appellate court or a justice thereof, upon the appellant's giving the security required to perfect the appeal, and to stay the execu- tion of the order appealed from and also an undertaking to the petitioner in a sum and with sureties approved by the county judge, or in the city and county of New York by a justice of the supreme court, or in any case by the appellate court or a justice thereof, to the effect that if, upon the appeal, a final determination is rendered against the appellant, he will pay, if he holds over after a default in payment of rent, all rents accruing or to accrue upon the premises or, if there is no lease thereof, the value of the use and occupation of the premises subsequent to the institution of the special proceedings; or, if he holds over after the expiration of his term, that he will pay all costs and damages which the petitioner may suffer by reason of the stay herein provided for. The court or justice above referred to may grant such order with or without notice upon the filing of an undertaking approved by such court or justice in an amount equal to not less than three months* rent of the premises at the rate to which the appellant was liable as rent for the montli immediately prior to the insti- tution of the special proceeding. The petitioner, at any time before the appeal is actually heard, may apply to such court or justice to increase the security given by the appellant. Whenever in this section an undertaking is required to be given by the appellant, in lieu thereof, at his election, he may pay into court a sum of money equal to the amount of such undertaking. Where such appeal has been taken piior to Sep- tember twenty-seventh, nineteen hundred and twenty, from a final order awarding delivery of possession to the petitioner on the ground that the tenant holds over after the expiration of his term, a stay may be granted provided such appeal be pending and the circumstances warrant the granting thereof. § 1444. Appellate court may award restitution; action for damages. If the final order is reversed upon the appeal, the appellate court may award resti- tution to the party injured wfEh costs; and it may make any order, or issue any other mandate, necessary to carry its determination into effect. The person dispossessed may also maintain an action to recover the damages which he has sustained by the dispossession. § 1445. Application of article; effect of final order. This article does not impair the rights of a landlord, lessor or tenant in a case not therein provided for. Where a special statutory provision confers a right to take pro- ceedings, in the manner heretofore prescribed by law, for the summary removal of a 476d CIVIL PEAOTICE ACT. person in possession of real property, the proceedings thereunder must be taken as pre- scribed in this article. A final order, made in a special proceeding taken as prescribed in this article, is not' a bar to an action of ejectment to recover the property affected thereby. 1446. How proceedings under this artide may be stayed. Where a petition is presented, as prescribed in this article, the proceedings thereupon before the final order, and if the final order awards delivery of the possession to the petitioner, the issuing or execution of the warrant thereupon, cannot be stayed or suspended by any court or judge, except in one of the following methods: 1. By an order made, or an undertaking filed, upon an appeal in a case and in the manner specially prescribed for that purpose in this article; 2. By an injunction order granted in an action against the petitioner. Such an injunction shall not be granted before the final order in the special proceeding, except in a case where an injunction would be granted to stay the proceedings in an action of ejectment brought by the petitioner, and upon the like terms; or after the final order, except in a case where an injunction would be granted to stay the execution of the final judgment in such an action, and upon the like terms. § 1447. Stay and vacation of warrant issued upon default. Whenever the court in which the proceedings are brought has jurisdiction to vacate a final order rendered upon the default of the tenant, the court, or a judge or justice thereof, pending a motion to vacate a final order rendered upon the default of the tenant, may stay the execution of the warrant which was issued upon such default and, upon the vacation of such final order, shall vacate and set aside such warrant. FORMS IN CIVIL ACTIONS AND PROCEEDINGS AND OF PLEADINGS IN JUSTICE'S COURT. FORMS. (CIVIL PROCEDURE.) Ko. 1. Summons. 2. Constable's proof of service to an individual. 3. On a corporation. 4. Not served. 6. Appointment of guardian ad litem for infant plaintiff. 6. Consent. 7. Appointment of guardian ad litem for infant defendant. 8. Ordinary form of complaint. 9. By assignee of claim. 10. By or against corporation. 11. By or against unincorporated association. 12. By or against executors or administrators. 13. By infant plaintiff. 14. By or against partners. 15. For money loaned. 16. On promissory note. 17. Goods sold. 18. The same where the price was agreed upon.. 19. For services. 20. By a parent for infant's services. 21. For board and lodging. 22. Against maker and indorser. 23. By employee for being discharged. 24. Against buyer for refusing to receive goods. 25. For not delivering goods bought. 26. Warranty for soundness of a horse. 27. For conversion. 28. Trespass. 29. Complaint in replevin. 30. On mechanic's lien. 31. To foreclose a chattel mortgage. 32. Demurrer. 33. Answer. 34. Answer of title to real property. 35. Undertaking on answer of title. 36. Undertaking by defendant on adjournment. 37. Undertaking on adjournment when defendant in custody. 38. Affidavit for adjournment. 39. Subpoena. 40. Subpoena duces tecum. 41. Proof of service of subpoena. 42. Affidavit for warrant of attachment against witness. 43. Warrant of attachment against defaulting witness. 44. Minute of conviction. 479 480 CIVIL PEOCEDUEE. No. 45. Execution thereupon. 46. Notice to produce a paper on the triaL 47. Venire. 48. Constable's return of venire. 49. Venire in action between towns. 50. Affidavit that justice is a material witness. 51. Order transferring action. 52. Juror's oath. 53. Constable's oath on retiring with jury. 54. Oath of witness. 55. Oath to juror before examined. 59. Jury's verdict. 60. Offer of judgment before answer. 61. Plaintiff's acceptance. 62. Judgment thereupon. 63. Confession of judgment. 64. Affidavit when confesssion over fifty dollars. 65. Agreement to stay execution. 66. Judgment on confession. 67. Docket. 68. Execution. 69. Execution against the person. 70. Execution for chattel. 71. Indorsement of levy on execution. 72. Execution when warrant of attachment was not personally served. 73. Constable's notice of sale. 74. Notice of application for commission. 75. Affidavit for commission. 76. Commission. 77. Interrogatories and cross- interrogatories, 78. Depositions. 79. Notice of appeal. 80. Undertaking to stay execution. 81. Notice of delivery of such undertaking. 82. Justice's return. 83. Warrant for a contempt. 84. Record for conviction for contempt. 85. Commitment for contempt. 86. Affidavit to obtain order of aiTest. 87. Undertaking. 88. Order of arrest. 89. Constable's return. 90. Affidavit for attachment of property. 91. Undertaking on attachment. 92. Warrant of attachment. 93. Inventory on attachment. 94. Defendant's undertaking on attachment. 95. Attachment; bond for delivery to third person, 96. Replevin; affidavit for. 97. Undertaking in replevin. FOKMS. 48t No. 98. Requisition to replevy. 99. Notice of exception to sureties. 100. Notice that defendant reclaims chatteL 101. Affidavit to reclaim chattel. 102. Defendant's undertaking in replevin. 103. Affidavit of claim by third person. 104. Undertaking of plaintiff to indemnify constable against claim of third party in replevin. 105. Petition on seizure of strays. 106. Precept on seizure of strays. 107. Final order directing sale on seizure of strays. 108. Warrant to sell on seizure of strays. 109. Notice to pay rent. .110. Petition for removal of tenant on failure to pay rent. 111. Precept to remove tenant. 112. Answer of tenant. 113. Final order. 114. Warrant of dispossession. 115. Verification to a pleading. 116. Transcript of judgment. No. 1. Snnunona. County op ) Town of , \^-'' ■The People of the State of New York to amy constable of the cownty of Qreeting : You are hereby commanded to summon C. D. to appear before the undersigned, a justice of the peace of the said town, on the day of , 19 . . , at o'clock in the noon, at his office in said town to answer the complaint of A. B. in a civil action to his damage of two hundred dollars or under. Given under my hand at the said town this day of , 19 . . . C. W. H., Justice of the Peace. (In an action wherein an order of arrest is granted, the summons, instead of being returnable at a specified time, it will be as follows: "Immediately upon his arrest by virtue of the annexed order of arrest.") (If the action is for a penalty, indorse on the summons: "Pursuant to the pro- visions of chapter , Laws [or such statute as prescribes the penalty].") [Just. Ct. Act, § 45.] No. 2. Constable's Proof of Service of Summons on an Individnal. The within summons was personally served by me on the within named defendant, C. D., in the town of on the day of , 19- •» by personally delivering to and leaving with him a true copy thereof. Dated at the town of the day of , 19. .. A. B. C, Constable. [Just. Ct. Act, § 58.] 31 482 CIVIL PEOCEDURE. No. 3. On a Corporation. The within summons was personally served on E. C, a director of the within named defendant, the S. Co., on the day of , 19. ., in the town of , said county, by personally delivering to and leaving with him a true copy thereof. Dated at the town of the day of , 19 . . . A. B. C, Constable. [See Just. Ct. Act, § 51.] No. 4. Not Served. The within summons was not served on the within named defendant, for the reason he could not be found within the county, although I exercised and made diligent search. (Here state the facts showing diligence.) Dated this day of , 19 . . . A. B. C, Constable. No. 5. Appointment of Guardian ad litem for Infant Plaintiff. To C. W. H., a justice of the peace of the town of , in the county of. ,N. Y. The undersigned, an infant over the age of 14 years, hereby makes application for the appointment of K. C, my father, as my guardian ad litem for the purpose of commencing an action against H. G. to recover damages for (here state facts upon which cause of action is based.) Dated this day of , 19. .. A. B. C, Infant, (If the infant is under 14 years of age the guardian, or relative, or friend should make the application.) rjust. Ct. Act, § 35.] No. 6. Consent. I hereby consent to be appointed and to be guardian ad litem of (the infant, giving his name) pursuant to the foregoing application. Dated this day of 19 . . . R. C • [Just. Ct. Act, § 35.] Appointment. In pursuance of the foregoing application and consent, I, the undersigned, do hereby appoint E. C. as the guardian of A. B. C. for the purpose of an action against H. G., the said E. O. being a competent responsible person. Dated this day of X9. .. C. W. H., Justice of the Peaco. [Just. Ct. Act, § 35.] FORMS. 483 No. 7. Appointment of Guardian ad litem for Infant Defendant. Afpucation. JUSTICE'S COURT. A.B. vs. C. D. To C. W. H., Esq., justice of the peace of the town of The defendant in the above entitled action, being an infant, hereby requests you to appoint M. O. as the defendant's guardian for the purpose of this action. Dated this day of , 19 . . . Signed by applicant. [Just. Ct. Act, § 36.] Appuoahon by Plaintiff. JUSTICE'S COURT. A.B. vs. C. D. To C. W. H., Esq., justice of the peace. The defendant herein, being an infant, and not appearing upon the return of the summons (or having neglected and refused upon the return of the summons, to nominate a guardian) the plaintiff hereby requests that some competent and proper person be appointed guardian ad litem for said defendant herein. Dated this day of 19. .. [Just. Ct. Act, $ 36.] Plaintiff. OOWSBNT. I hereby consent to be appointed guardian ad litem for the said defendant herein Dated this day of , 19 . . . I.. P., [Just. Ct. Act, § 36.] Appointment. In pursuance of the foregoing application and consent, I, the undersigned, hereby appoint L. P. as the guardian of said defendant for the purpose of this action. Dated this day of , 19 . . . C. W. H., Justice of the Peace. [Just. Ct. Act, § 36.] 484 CIVIL PKOCEDUKE. CJOMPIAINTS. No. 8. Ordinary Form. JUSTICE'S COURT. A.B. vs. C. D. The plaintiff in the above entitled action complains of the defendant therein, and alleges: [Here set forth the cause of action.] Whebefobe, the plaintiff demands judgment against the defendant for the sum of dollars with interest thereon from the day of , 19. ., besides the costs of this action. A. B., Plaintiff. [Just. Ct. Act, § 129.] No. 9. By Assignee of Claim. JUSTICE'S COURT. A. B. vs. CD. The plaintiff in the above entitled action complains of the defendant therein, and alleges : First. That between the day of 19 . . , and the day of , 19 . . , one M. N. rendered and performed services for the above named defendant at his special instance and request and upon his promise to pay said M. N. therefor. That the services so rendered as aforesaid were reasonably worth the sum of dollars, and that before the commencement of this action and for a valuable consideration the said M. N. sold, assigned and transferred, all his right, title and interest in and to said claim for services rendered as aforesaid to the plaintiff and that by reason thereof said defendant is indebted to the plaintiff in the sum of dollars and interest thereon from the day of , 19... For which sum he demands judgment against the defendant, besides the costs of this action. A. B., Plaintiff. JUSTICE'S COURT. FOEMS. No. 10. By or Against Corporation. 485 A.B. V8. C. D. First. That the defendant is, and during all time hereinafter stated was a domestic corporation, duly created and organized under the laws of the state of New York. The plaintiff in the above entitled action complains of the defendant therein and alleges : Second. [Here state cause of action.] Whebepoee, The plaintiff demands judgment againat the defendant for the sum of dollars, besides costs. A. B., Plaintiff. No. 11. By or Against TTninoorporated Association. JUSTICE'S COURT. A.B. vs. CD. The plaintiff in the above entitled action complains of the defendant therein, and alleges : First. That the defendant is, and during all the time hereinafter stated was an unincorporated association consisting of seven or more persons duly organized and known as the A. B. C. Association, whose principal offict- and place of meeting is in the town of county of , New York. Second. [Here state cause of action.] Whebefobe, The plaintiff demands judgment against the defendant for the sum of dollars, besides costs. A. B., Plaintiff. 486 CIVIL PROCEDURE. No. 12. By or Against Ezeoutors or AdminiBtrators. JUSTICE'S COURT. A. B., as administrator of the goods, chattels and credits of M. N., deceased. vs. C. D. The plaintiff in the above entitled action complains of the defendant therein, and alleges : B'irst, That on the day of , 19 . . , one M. N., lately of the county of , died intestate, and that thereafter and on or about the day of , 19 . . , letters of administration upon the estate of said M. N., deceased, were duly granted and issued to the said plaintiff by the Surrogate's Court of the county of , appointing the said A. B. administrator of all the goods, chattels and credits, of the said deceased and that the said A. B. thereupon duly qualified as such administrator and entered upon the discharge of the duties of such administrator, and is now acting as such. (If executor, allege as follows: That the said M. N. died on or about the day of , 1-9 .. , leaving a last will and testament in which the said A. B. was named as executor, that thereafter and by due proceedings had in the Surrogate's Court of the county of , the said A. B. was appointed executor of the estate of said deceased and letters testamentary were granted to him, that he has duly qualified and is now acting as such executor. ) Becond. [Here state cause of action.] Whebepoee, The plaintiff demands judgment against the defendant for the sum of dollars, besides costs. A. B., as Administrator, etc.. Plaintiff. No. 13. By Infant Plaintiff. JUSTICE'S COURT. A. B., an infant, by E. F., his guardian ad litem, vs. C. D. The plaintiff in the above entitled action complains of the defendant therein, and alleges : First, that the plaintiff is an infant tinder the age of twenty-one years, and that before the commencement of this action and on the day of 19. ., upon an application duly made E. F., the above named guardian, was duly appointed by this court to be the guardian of the plaintiff for the purposes of this action. Second. [Here state cause of action.] WHEEEroEE, The plaintiff demands judgment against the defendant for dollars and costs. j\^_ B^ by Guardian, etc.. Plaintiff. [See Just. Ct. Act, § 35.] FORMS. 487 No. 14. By or Against Partnera. JUSTICE'S COURT. A. B. vs. j. C. D. and E. F. J The plaintiff in the above entitled action complains of the defendant therein, and First. That the defendants are and during all the time hereinafteer stated, -were copartners doing business in the town of under the firm name and style of C. t). & Co. Second. [Here state cause of action.] Wheeepoee, The plaintiff demands judgment against the defendant for the sum of dollars, besides costs. A. B., Plaintiff. No. 15. For Money Iioaned. JUSTICE'S COURT. A. B. I vs. t CD. I J The plaintiff in the above entitled action complains of the defendant therein, and alleges : First. That on the day of , 19 . . , in the town of the plaintiff loaned to the defendant at his request the sum of dollars upon the condition that it should be repaid to the plaintiff within two months, with interest. That more than two months have elapsed since said money was loaned as aforesaid and payment thereof has been demanded of the defendant by the plaintiff and refused, and that no part thereof has been paid. WHEEEroEE, The plaintiff demands judgment against thp defendant for the sum of - dollars and interest thereon from the day of , 19.., besides costs. A. B., Plaintiff. No. 16. On Promissory Note. JUSTICE'S COURT. A. B. I vs. V C. D. j The plaintiff in the above entitled action complains of the defendant therein, and alleges : First. That on the day of 19 . . , for value received, the defendant executed and delivered to the plaintiff his promissory note in writing and figures, of which the following is a copy: [Here insert copy of note.] 488 CIVIL PEOCEDUEE. Second. That on the day of , 19 . . , when said note by its terms became due and payable, payment thereof was duly demanded and refused. That no part of said note has been paid, that there is now due and owing to the plaintiff the sum of dollars, and interest thereon from the day of , 19... For which sum the plaintifif demands judgment against the defendant, besides costs. A. B., Plaintiff. No. 17. Goods Sold. JUSTICE'S COURT. A. B. j vs. !■ C. D. I The plaintiff in the above entitled action complains of the defendant therein, and alleges : First. That on the day of , 19 . ., at the town of , the plaintiff sold and delivered to the defendant at his request and upon his promise to pay therefor, goods, wares and merchandise, consisting of (here state the articles). That the same were reasonably worth the sum of dollars. That no part thereof has been paid, although payment thereof has been duly demanded and refused. Wheeefobe, The plaintiff demands judgment against the defendant for the sum of dollars, besides costs. A. B., Plaintiff. No. 18. The Same Wliere tbe Price 'Was Agreed TTpom. JUSTICE'S COURT. A. B. vs. CD. The plaintiff in the above entitled action complains of the defendant therein, and alleges : That on the day of 19. ., at the town of , county of , New York, the plaintiff sold and delivered to the defendant at his request and upon his promise to pay therefor, goods, wares and merchandise, consisting of (here enumerate articles). That said defendant then and there promised to pay plaintiff therefor the sum of dollars. That he has failed and refused to pay said sum or any part thereof. Wheeefobe, The plaintiff demands judgment against the defendant for the sum of dollars, besides the costs of this action. A. B. Plaintiff. FORMS. , 48? No. 19. For Serrioes. JUSTICE'S COURT. A.B. vs. Wells Company. The" plaintiflf in the above entitled action complains of the defendant therein, and alleges : That from the day of , .19. ., to the day of , 19. ., at the town of , the plaintiff rendered services to the defendant at the agreed price of twenty dollars per month; that the defendant is justly indebted to the plaintiff in the sum of dollars for such services. That plaintiff has demanded payment thereof from the defendant; that he refused to pay the plaintiff said sum or any part thereof. Whebefobe, The plaintiff demands judgment against the defendant for the sum of dollars, besides costs. A. B., Plaintiff. No. 20. By a Parent for Infant's Serriees. JUSTICE'S COURT. A. B. vs. CD. The plaintiff in the above entitled action complains of the defendant therein, and alleges : That one M. N. rendered services to the defendant at his request as a farm hand from the day of , 19 . . , to the day of , 19. ., at the agreed price of dollars per day (or if no price agreed say, that such services were reasonably worth dollars) . That no part of said eum has been paid except the sum of dollars. Ttiat the said M. K. isi the son of the plaintiff and was then, and is now, under twenty-one years of age, and plaintiff was and is legally entitled to his services and the value thereof. That by reason of all the facts aforesaid, the defendant is indebted to the plaintiff in the sum of dollars. For which he demands judgment against the defendant, besides costs. A. B., Plaintiff. 490, CIVIL PEOCEDUEE. No. 21. For Board and Iiodging. 1 JUSTICE'S COURT. A. B. vs. f. C. D. I J The plaintiff in the above entitled action complains of the defendant therein and alleges : That from the day of , 19.-, until the day of 19.., the plaintiff furnished said defendant at his request with food, and certain rooms, for which the said defendant agreed to pay the plaintiff the sum of dollars per week. That no part thereof has been paid. Wheeepore, The plaintiff demands judgment against the defendant for the sum of dollars, besides costs. A. B., Plaintiff. No. 22. Agaiiut Maker and Indorser. ■JUSTICE'S COURT. A. B. vs. ■C. D. and E. F. The plaintiff in the above entitled action complains of the defendant therein and alleges : That for value received, on the day of , 19 . . , the defendant, C. D., made his promissory note in writing, for the sum of dollars, due and payable by its terms two months after the date thereof, viz., the day of , 19. ., and delivered the same to the defendant, E. F., who indorsed the same before maturity and delivered it to the plaintiff for value. That when it became due, payment thereof was duly demanded of said defendant, C. D., who refused to pay the same or any part thereof. That thereupon said note was duly protested for non- payment. That the cost of protest was That notice of such non- payment and of the protest of said note for the non-payment thereof was duly given to the defendant, E. F. That no part of said note has been paid plaintiff. Wherefoee, The plaintiff demands judgment against the defendants for the sum of dollars, with interest thereon from the day of 19.., besides costs. A. B., Plaintiff. FORMS.. 491 No. 23. By Employee for Being Discharged. JUSTICE'S COURT. A. B. vs. CD. The plaintiff in the above entitled action complains of the defendant therein and alleges: That on the day of , 19. ., the plaintiff and defendant entered into an agreement whereby the plaintiff agreed to render services for the defendant for the term of one year as a cook, in consideration whereof said defendant agreed to pay the plaintiff the sum of dollars per week for the term of one year. That the plaintiff, pursuant to said contract, on the day of , 19 . . , entered upon his employment under said agreement and duly discharged all the duties thereof until the day of , 19 . . , when said defendant, without any icause, unjustly discharged said plaintiff who was then and ever since has been ready and willing to perform all the conditions of said agreement upon his part. That the defendant refused to allow him so to do, or to pay him therefor, to his damage of dollars. For which sum he demands judgment against the defendant, besides costs. A. B., Plaintiff. No. 24. Against Bnyer Befnsing to Receive Goods. JUSTICE'S COURT. A.B. vs. C. D. The plaintiff in the above entitled action complains of the defendant therein and alleges: That on the day of , 19 . . , at the town of , the plaintiff and the defendant entered into an agreement whereby the plaintiff was to deliver to the defendant at the village of , ten tons of hay, at the agreed price of ten dollars per ton. That such delivery was to be made on the day of , 19 . . , and that said defendant was to pay plaintiff therefor on the same day. That the plaintiff duly performed all the conditions of said contract on his part, and had delivered at the place of delivery said hay, which the defendant then and there refused to accept, and refused to pay therefor to the plaintiff's damage of ". dollars. Wherefobe, The plaintiff demands judgment against the defendant for the sum of dollars, besides costs. A. B., Plaintiff. 492 CIVIL PROCEDURE. No. 25. For Not Delivering Goods Bonght. JUSTICE'S COURT. A.B. vs. C. D. The plaintiflf in the above entitled action complains of the defendant therein and alleges : That on the day of 19 . . , at the town of , the plaintiff and defendant entered into an agreement, whereby the plaintiff purchased of the defendant ten tons of hay at the agreed price of ten dollars per ton, and that at the time of said purchase, the plaintiff paid to the defendant the sum of ten dollars thereon, and that said defendant was, by such agreement, to deliver said hay at the depot in the village of , on the day of , 19 . . , at which time by said agreement, plaintiff was to pay the defendant the balance of the purchase price of said hay. That said defendant failed and refused to deliver to the plaintiff at the time and place aforesaid, said hay or any part thereof, to the plaintiff's damage of dollars, for which sum he demands judgment against said defendant, besides costs. A. B., Plaintiff. No. 86. 'Warranty of tbe Sonndaess of a Horse. JUSTICE'S COURT. A. B. vs. C. D. J The plaintiff in the above entitled action complains of the defendant therein and alleges: First. That on the day of 19. ., at the town of the defendant, offering to sell the plaintiff a certain horse, warranted said horse to he sound, kind and true. That the plaintiff, relying upon said warranty, then and there purchased said horse, and paid the defendant therefor the sum of dollars. Second. That at the time of said warranty and sale, the said horse was unsound, unkind, and untrue, and had an infectious disease, two spavins, and was windbroken, and would bite and kick, and was balky. That by reason thereof, he was utterly- worthless. And was so known at the time of such sale by the defendant, and that said horse is now without value, to the plaintiff's damage of dollars for which sum he demands judgment against the defendant, besides costs. A. B., Plaintiff. FORMS. No. 27. For CoftTeraion. JUSTICE'S COURT. A. B. vs. C. D. 493 The plaintiff in the above entitled action complains of the defendant therein and alleges : That on the day of , 19.., the plaintiff delivered to the defendant the sum of twenty-five dollars with the instruction then and there given said defendant by the plaintiff, to pay said sum to one M. N., for and on account of the plaintiff. That said defendant wrongfully and unlawfully used the money on his own account, and did not pay the same or any part thereof to said M. N., but converted the same to his own use, to the plaintiff's damage of twenty-flve dollars. Wheeefoee, The plaintiff demands judgment against the defendant for the sum of twenty-five dollars, with interest thereon from the day of , 19. ., besides costs. A. B., Plaintiff. Ifo. 28. Trespass. JUSTICE'S COURT. A. B. vs. C. D. The plaintiff in the above entitled action complains of the defendant therein and alleges : That on the day of the plaintiff was the owner and in the possession of the following described lands, namely: (here insert a description of the lands). That on said day the defendant, without the consent of the plaintiff, entered upon said lands and gathered and carried away thirty bushels of apples from the orchard thereon, to plaintiff's damage in the sum of dollars. Wheeefobe, The plaintiff demands judgment against the defendant for the sum of dollars, besides costs. A. B., Plaintiff. JUSTICE'S COURT. A.B. US. C. D. Xo. 29. Complaint in Beple-vlii. The plaintiff in the above entitled action complains of the defendant therein and alleges: First. That at the time hereinafter mentioned, the plaintiff was lawfully in posses- sion of (here describe the property) of the value of dollars, then and ever since his property. 494 CIVIL PEOCEDUEE. Second. That on the day of , 19. . , at the town of , the defendant wrongfully took and carried away said goods and chattels from the possession of this plaintiff, and still unjustly detains the same, to the plaintiff's damage in the siim of dollars. Whebefobe, The plaintiff demands judgment against the defendant for the recovery of the possession of said goods and chattels, or for the sum of dollars, the value thereof, in case a delivery cannot be had ; together with dollars his damages besides the costs of this action. A. B., Plaintiff. No. 30. On MeobsiiiG's Iiiens. JUSTICE'S COURT. A. B. vs. C. D. The plaintiff in the above entitled action complains of the defendant therein and alleges; First. That on the day of , 19. . , this plaintiff, by virtue of a contract with the defendant, sold and delivered to the defendant certain building materials consisting of (here describe the materials) of the value of dollars. That by the terms of said contract and sale, the said sum became due on the day of , 19 . . , but the defendant has not paid the same. That the said materials were used in erecting a building on the following described premises (here describe premises). That the said premises were during all the time herein stated and at the time of the filing of the notice of lien hereinafter mentioned, the property of the defendant. Second. That on the day of , 19. ., and after performance of said contract, the plaintiff filed with the clerk of the county of , a notice of lien claimed upon said premises for the indebtedness aforesaid. A copy of which notice of lien is hereto annexed, made a part hereof and marked "A."' Wheeefoee, The plaintiff demands judgment directing a sale of the interest of the defendant in the said premises and directing that the proceeds of such sale be applied to the payment of said claim and the costs of this action. (Add verificatibn as in Form No. 116.) A. B., Plaintiff. No. 31. To Foreclose a Cbattel Mortgage. JUSTICE'S COURT. A. B. vs. CD. The plaintiff in the above entitled action complains of the defendant therein and alleges: First. That heretofore and on the day of , 19 ... the defendant was the owner of the chattel described in a chattel mortgage, a copy of which is hereto FORMS. 495 annexed, made a part hereof, and marked "A." That on the same day for a good and valuable consideration he made, executed and delivered said chattel mortgage to the plaintiff. ■ Second. That said chattel mortgage was duly filed In the town clerk's office of the town of , where the defendant resided, at the time of the execution and filing thereof, on the day of . . . .' , 19. ., and where said 6hattels were situated at the time of such execution and filing; that the sum secured by said mort- gage is due and payable and that the same remains unpaid, and there is now due and secured and owing by and on said mortgage, the sum of dollars, with interest from the day of , 19 . . . That said mortgage became due and payable on the day of , 19 . . , and that no part thereof has been paid, although the same has been duly demanded. Wherefore, Plaintiff demands judgment, for the foreclosure of said mortgage, and sale of the chattels therein described, by a proper person to be designated by the court, and that the proceeds be applied to the payment of the amount due plaintiff and the costs of the action, and that plaintiff have judgment against the said defendant for any costs and deficiency which cannot be satisfied out of the fund realized from the sale of said chattels, after first paying plaintiff the amount due him and secured thereby. A. B., Plaintiff. No. 32. Demurrer. JUSTICE'S COURT. A. B. vs. C. D. The defendant in the above entitled action demurs to the complaint therein upon the grounds that it does not state facts sufficient to constitute a cause of action. Upon the further ground that it is not sufficiently explicit to be understood. C. D., Defendant. [Just. Ct. Act, § 132.] No. 33. Aiui^er. JUSTICE'S COURT. A. B. vs. 0. D. J The defendant in the above entitled action for an answer to the complaint therein: First. Denies each and every allegation, statement and averment therein contained. Second. That before the commencement of this action the defendant had fully paid the plaintiff for all the demands and causes of action stated in said complaint. Third. For a further answer and counterclaim the defendant alleges that before the commencement of this action he sold and delivered to the plaintiff a horse at the agreed price of one hundred dollars. That the plaintiff has not paid the same or any 496 CIVIL PROCEDURE. part thereof, and that by reason thereof there was before the commencement of this action and now is owing the defendant from the plaintiff the sum of one hundred dollars. Wheeefobe, The defendant demands judgment against the plaintiff for the sum of one hundred dollars besides the costs of the action. C. D., Defendant. [Just. Ct. Act, §§ 136, 137.] No. 34. Answer of Title to Beal Property. JUSTICE'S COURT. A. B. vs. C. D. J The defendant in the above entitled action for an answer to the complaint therein : First. Denies each and every allegation, statement and averment therein contained. Second. For a further and separate answer alleges, that the defendant is the owner of the land described in said complaint and that the title to the real property therein described, the whole of which the defendant is the sole owner, will come in question. That the premises are fully described as follows: (Here insert description.) C. D., Defendant. (If the complaint was verified, the answer should also be verified.) I hereby countersign the within answer. Dated this day of , 19. .. C. W. H., Justice of the Peace. [Just. Ct. Act, § 172.] No. 35. XTndertakliig cm Answer of Title. JUSTICE'S COURT. A. B. vs. C. D. Whereas, the defendant in the above entitled action has by his answer alleged facts showing that title to real property will come in question on the trial of said action: Now, therefore, we, the undersigned, do jointly and severally undertake, and become bound, pursuant to the statute, that if the plaintiff within twenty days from *''e day of , 19. ., deposits with the justice before whom this action is brought a summons and complaint in a new action, for the same cause, to he brought in the supreme court or a county court, the defendant will within twenty days thereafter give a written admission of the service thereof. (If the defendant was FORMS. 497 arrested in the action before the justice the undertaking must further provide " that the defendant will at all times render himself amenable to any mandate, which may be issued to enforce a final judgment in the action so to be brought.") Dated this day of , 1&. . . M. N. O. P. State of New Yoek, 1 County of | ®®"' On this day of , 19 . . , before me the subscriber, personally came, M. N. and O. P., to me personally known to be the same persons mentioned and described in and who executed the foregoing undertaking, and they duly severally acknowledged the execution thereof. C. W. H., Justice of the Peace. State op New Yokk, 1 County of | **"' M. N. and 0. P., being duly and severally sworn each for himself says: that he is a resident of and a freeholder within the town of , said county, and is worth the sum of two hundred dollars over and above all the debts and liabilities which he owes or has incurred, and exclusive of property exempt by law from levy and sale under execution. M. N. O.P, Subscribed and sworn to before me ) the day of 19. . . J C. W. H., Justice of the Peace. I hereby approve of the foregoing undertaking as to its form, manner of execution and sufficiency of its sureties. bated this day of , 19. .. C. W. H., Justice of the Peace. [Just. Ct. Act, § 173.] No. 36. Undertaking by Defendant on Adjournment. JUSTICE'S COUET. A.B. vs. C. D. Whereas, the defendant in the above entitled action has made application for an adjournment of the trial thereof on the ground that he cannot safely proceed to trial for the want of some material testimony or witness specified by him in his affidavit: Now, therefore, we do jointly and severally undertake, pursuant to the statute, that if the plaintiff recovers judgment in the action; and if, before the expiration of ten days after the plaintiff becomes entitled to an execution upon the judgment, the defendant removes, secretes, assigns, or in any way disposes of, any part of his property, liable to levy and sale by virtue of an execution, except for the necessary 32 498 CIVIL PKOCEDUEE. support of himself and his family ; and if an execution upon the judgment is returned wholly or partly unsatisfied; we will, upon demand, pay to the plaintiff the sum due upon the judgment. (Date.) (Signatures.) (Add acknowledgment, justification, and approval by the justice, as in No. 35.) [Just. Ct. Act, § 183.] No. 37. Undertaking on Adjonrnment 'When Defendant in Custody. JUSTICE'S COURT. A. B. I vs. l C. D. I J Whereas, the defendant has been arrested in the above entitled action, and has made application for adjournment on the ground that he cannot safely proceed to the trial thereof for want of some material testimony or witness. Now, therefore, we do jointly and severally undertake, pursuant to the statute, that if the plaintiff recovers judgment in the action ; and if an execution is issued thereupon against the person of the defendant, within ten days after the plaintiff is entitled to the same; and if a return is made thereto, on or after the return day thereof, and the defendant cannot be found; we will pay to the plaintiff the amount due upon the judgment. (Date.) (Signatures.) (Add acknowledgment, justification, and approval by the justice, as in No. 35.) [Just. Ct. Act, § 184.] No. 38. Affidavit for Adjournment. JUSTICE'S COURT. A. B. vs. C. D. J County of , ss.: - C. D., being duly sworn, says, that he is the defendant in the above entitled action. That he has fully, fairly and truthfully stated all the facts herein to his counsel, R. C, whose law office is at No street, in the village of N. Y., and that after such statement, made as aforesaid, he is advised by his said counsel that he has a good and substantial defence upon the merits to the complaint herein. That deponent has stated to his said counsel all the facts that he expects to prove by one M. N., who was a witness at the time of the sale of said horse referred to in said complaint, and heard the conversation that resulted in the sale between the FOEMS. 499 parties hereto, and that after such statement he is advised by his said counsel that he cannot safely proceed to the trial of this action without the testimony of said M. N. Tliat since the service of the summons herein said M. N. has been without the state and is not expected to return to his place of residence, viz.: the village of , until on or about the day of , 19. .. Subscribed and sworn to before me ) this day of , 19 . . . ( [Just. Ct. Act, § 182.] No. 39. Snltpoena. County op Town of :,-| /» the Name of the People of the State of New York: To You are hereby commanded and required to appear personally before me, the under- signed, a justice of the peace, of the town of , at my office in the said town of on the day of 19. . , at nine o'clock in the forenoon of that day, to give evidence in a certain civil cause, then and there to be tried, between A. B., plaintiff, and C. D., defendant, on the part of the plaintiff, and fail not at your peril. Givan under my haind, this day of , 19 . . . 0. W. H., Justice of the Peace. [Just. Ct. Act, § 190.] Mo. 40. Snlipoena Duces Tecmn. In the Name of the People of the State of New York : To You are hereby commanded to he, in your own proper person, before me at my office in the town of , on the day of , 19 . . , at ten o'clock in the forenoon, of that day, to testify what you may know in a certain cause then and there to be tried between A. B., plaintiff, and C. D., defendant, on the part of the plaintiff, and that you bring with you, and produce at the time and place aforesaid (here insert paper desired to have witness produce). Given under my hand, this day of , , 19 . . . C. W. H., Justice of the Peace. [Just. Ct. Act, § 190.] 500 CIVIL PEOCEDUEE. No. 41. Proof of Service of Subpoena. County of , ss.: A. B., being duly sworn, says he is over twenty-one years of age and resides in tlie town of , said county, that he did on the day of , 19. ., serve the annexed subpoena on Y. Z. at the town of , by reading the same to him personally and by paying to him the sum of A. B. Subscribed and sworn to before me ) this day of , 19... I C. W. H., Justice of the Peace. [See Just. Ct. Act, § 191.] No. 42. Affidavit for Warrant of Attacliiaent Against Witness. JUSTICE'S COURT. E. F. vs. C. D. State of New York, 1 County of . . C. D., being duly sworn, says, that he is the defendant in the above entitled action; that Y. Z., referred to in the annexed afiSdavit of A. B., is a material and necessary witness for deponent upon the trial of this action, and that without the testimony of the said witness deponent cannot safely proceed to the trial of this action. That the said Y. Z. resides at in said county, and was on the day of , 19 . . , duly subpoenaed to attend the trial of this action as a witness for deponent, as appears by the affidavit of A. B., of the service of a subpoena upon him, hereto annexed, and as deponent is informed by said A. B. and verily believes. That said witness has refused and neglected to obey the said subpoena without any cause to deponent known. Deponent therefore applies for a warrant of attachment against said Y. Z., to compel his attendance on the trial of this cause as provided in section 2971 of the Code of Civil Procedure. CD. Subscribed and sworn to before me ) this day of , 19 ... ( C. W. H., Justice of the Peace. [Just. Ct. Act, § 192.] No. 43. Warrant of Attachment Against Defaulting 'Witness. County of Town of , ss.: The People of the State of New York, to any Constable of said county, Greeting: On reading and filing the affidavits of A. B. and C. D., verified the day of 19- •, and the annexed subpoena, and the undersigned being satisfied FOEMS. '501 of the truth of said affidavits and that said witness Y. Z. was duly subpoenaed and has neglected and refused to obey this subpoena without just cause. Xow, therefore, you are hereby commanded to attach the body of the said Y. Z., if found within this or any adjoining county, and bring him forthwith before me at my office in said town. Dated this day of 19. .. C. W. H., Justice of the Peace. [Just. Ct. Act, § 192.] No. 44. Minute of Conviotion. County op ,1 Town of , I **••■ Be it remembered, that on the day of , 19 . . , Y. Z., a defaulting witness, was brought before me at my office in said town in the custody of , a constable of said town, under a warrant for the arrest of said Y. Z., issued by me on the application of C. D. on the day of , 19 . . , pursuant to the provisions of section 2975 of the Code of Civil Procedure, and that on the return of said warrant the said Y. Z. was allowed a reasonable opportunity to be heard and to produce proof of a reasonable excuse for his default; and such proof not being produced, the said Y. Z. was thereupon on said day of , 19 . . , duly convicted before me of having without reasonable excuse failed to attend as a witness before me at my office in said town on the day of , 19 . . , in obedience to a subpoena duly issued by me and duly served upon him, to give evidence on the part of the defendant in an action then pending before me and then and there to be tried in which E. F. was plaintiff and C. D. was defendant; and that thereupon I imposed upon the said Y. Z. the payment of the sum of dollars as a fine for his failure to attend as aforesaid, and also the payment of the further sum of dollars and cents, the costs of this proceeding. Dated , , 19.. C. W. H., Justice of the Peace. [Just. Ct. Act, § 197.] No. 45. Ezeontion TberenpoB. County of Town of The People of the State of New York, to any ConstaMe of said county, Greeting : Whereas, Y. Z. has been duly convicted for disobeying a subpoena and fined, and a minute of such conviction having been duly entered in the docket book of the under- signed, and the said Y. Z. having neglected to pay the same or any part thereof, you are hereby commanded to collect the sum remaining unpaid of the goods and chattels of the said Y. Z. within the county of , and for want thereof to take him and convey him to the jail of said comity, there to remain until he pays that sum, not exceeding thirty days. Given under my hand this day of '. , 19 . . . C. W. H., Justice of the Peace. [Just. Ct. Act, § 198.] 502 CIVIL PEOOEDUKE. No. 46. Notice to Frodnoe a Paper on tlie Trial. JUSTICE'S COURT. A. B. ■vs. CD. To G. D., defendant: You are hereby required to produce on the trial of this action a certain (here describe paper desired) and in ease of your failure to produce it, secondary evidence will be given of the contents thereof. Dated this day of , 19. . . A. B., Plaintiff. No. 47. Venire. County of , J Town of , ^ **••■ To any Constable of said County, Qreeting; , You are hereby commanded to notify (here insert the names of the jurors drawn), to attend before me, as a justice of the peace, at my office in the town of ,., in said county, on the . . . .' day of , 19. ., at ten o'clock in the forenoon of the same day from which a jury can be selected for the trial of a civil action between A. B., plaintiff, and C. D., defendant. Given under my hand this day of , 19 . . . C.W.H., Justice of the Peace. [Just. Ct. Act, § 227.] No. 48. Constable's Betnm of Venire. I do hereby certify that on the day of 19. ., I personally served the within venire on each of the jurors named therein by reading or stating tlie substance thereof to each of the persons so served. Dated this day of , 19. .. J. H., Constable. [Just. ct. ^ct, § 2.28.] FOKMS. 503 No. 49. Venire in'Actibn Betureen To-wns. County op , ) . Town of , } ««••■ To any Constable of the said Count}/, Greeting: You are hereby commanded to notify twelve men of the said county who are qualified to serve and are not exempt from serving as trial jurors in a court of record, and not interested in the matter at issue, in the within action, to attend before me, a justice of the peace of said town, at my office in said town on the day of , 19. ., at ten o'clock in the forenoon of the same day, to form a jury for the trial of a civil action between the Town of S. and the Town of W. You are further required to deliver to me under your hand a return giving a list of the persons notified. Given under my hand this day of 19 . . . 0. W. H., Justice of the Peace. No. 50. Affidavit that Jastioe is a Material Witness. JUSTICE'S COURT. A. B. vs. C. D. and E. F. CotTNTT OF ,1' Town of J **••■ C. D., being duly sworn, says he is the defendant in the above entitled action. That no issue of fact or law has yet been joined therein. That the justice who issued the summons herein and before whom the said action is now pending is a necessary and with the trial herein without his testimony, and he is unable to prove the facts and circumstances which he expects to prove by said justice by any other person. That deponent expects to prove by said justice the following facts and circumstances (here material witness for the defendant, this deponent, and that he cannot safely proceed state them fully) . C. D. Subscribed and sworn to before me 1 this day of , 19... ( [Just. Ct. Act, § 478.] 504 OIVIL PKOCEDUEE. No. 51. Order Tramaf erring Aotion. JUSTICE'S CXDURT. A. B. vs. CD. On read and filing the aflSdavit of C. D., verified the day of , 19. ., making satisfactory proof to me tBat I am a material witness for the said C. D., the defendant in the above entitled action, and that he cannot safely proceed with the trial without my testimony, it is Obdeeed, That the said action be, and the same hereby is, continued before C. L. Esq., a justice of the peace of the said town of Dated this day of , 1'9. .. C. W. H., Justice of the Peace. [Just. Ct. Act, § 478.] No. 52. Jnror's Oath. You do solemnly swear that you and each of you will well and truly try the matter in difference between A. B., plaintiff, and C. D., defendant, and unless discharged by, me, a true verdict give according to the evidence. So help you God. [Just. Ct. Act, § 240.] FORMS. 505 So. 53. Constalile's Oath on Retiring with the Jury. You do solemnly swear, in the presence of the ever-living God, that you will, to the iitmost of your ability, keep the persons sworn as jurors on this trial, together in some private and convenient place, without any meat or drink, except such as shall be ordered by me; that you will not suffer any communication, orally or otherwise, to be made to them; that you will not communicate with them yourself, orally or other- wise unless by my order, or to ask them whether they have agreed on their verdict, until they shall be discharged; and that you will not, before they render their verdict, communicate to any person the state of their deliberations, or the verdict they have agreed on. So help you God. [Just. Ct. Act, § 255.] No. 54. Oath of Witness. You do swear that the evidence you shall give relating to the matter in difference between A. B., plaintiff, and C. D., defendant, shall be the truth, the whole truth and nothing but the truth. So help you God. [Just. Ct. Act, § 242.] No. 55. Oath to Juror Before Examined. You shall true answers make, to such questions as shall be put to you touching your qualifications to act as a juror in this cause. So help you God. No. 59. Jnry's Verdict. The form of the jury's verdict should be " we find dollars foi the plaintiff," or " we find for the defendant." 506 OIVIL PKOCEDUEE. No. 60. Offer of Judgment Before Answer. JUSTICE'S COURT. A. B. I vs. C C. D. ] The defendant In the above entitled action hereby offers to allow judgment to be taken against him therein and in favor of the above named plaintiflF for the sum of dollars, with costs. Dated this day of , 19. .. C. D., Defendant. [Just. Ct. Act, § 218.] No. 61. Plaintiff's Aeoeptance. JUSTICE'S COURT. 1 A. B. I vs. t C. D. ] I do hereby accept the offer of judgment filed by the defendant herein for the sum of dollars, with costs, to be taken in my favor and against the said defendant. Dated this day of , 19. .. A. B., Plaintiff. [Just. Ct. Act, § 218.] FOKMS. 507 No. 62. Jndgjuent Thereon. JUSTICE'S COURT. A. B. vs. C. D. January 2d, 19 . . . Summons issued in the above entitled action returnable January Sth, 19 . . , at nine a. m. January Sth, 19. ., nine A. M. The said summons was returned as personally served by H. O., constable, on the 2d day of January, 19.. ; fees, forty-five cents. The plaintiff and defendant appeared in person. The plaintiff complained. (Here state complaint.) The defendant filed an offer of judgment in writing, to allow judg- ment to be taken against him in favor of the plaintiff for the sum of dol- lars, with costs. The plaintiff thereupon immediately filed a written acceptance of the offer. Where- upon I did immediately render judgment this Sth day of January, 19 . . , in favor of the plaintiff and against the defendant for the sum of dollars damages and dollars costs (here insert the items of costs) , making a total judg- ment of dollars damages and costs. C. W. H., Justice of the Peace. [Just. Ct. Act, § 218.] No. 63. Confession of Judgment. JUSTICE'S COURT. A. B. vs. c. r>. I, C. D., hereby confess judgment in favor of A. B., for the sum of dol- lars, and I do hereby authorize the entry of a judgment therefor against me by C. W. H., justice of the peace. Dated this day of , 19. .. Filed day of , 19. .. C. W. H., Justice of the Peace. [Just. Ct. Act, § 261.] 508 CIVIL PEOCEDUEE. No. 64. Affidavit when Coiif euion OTer Fifty Dollars. JUSTICE'S COURT. A.B. vs. CD. County of ,88.: A. B., plaintiff, and C. D., defendant, being duly severally sworn each for himself, says that the defendant is honestly and justly indebted to the plaintiff in the sum specified in the annexed confession of judgment over and above all just demands which the said defendant has against the plaintiff; and tha,t said confession is not made or taken with intent to defraud any creditor. A. B. C. D. Subscribed and sworn to before me ) this day of , 19... j [Just. Ct. Act, § 262.] No. 65. Agreement to Stay Ezecntion. JUSTICE'S COURT. A. B. vs. C. D. We and each of us do hereby agree that the issuing on an execution upon the judg- ment confessed herein be stayed days. Dated this day of , 19 . . . A B C. D. [Just. Ct. Act, § 261.] No. 66. JndE^meiit om Confession. JUSTICE'S COURT. A. B. vs. C. D. Upon the 8th day of January, 19.., the defendant in the above entitled action per- sonally appeared before me and filed his confession of judgment duly executed and also the affidavit of the said plaintiff and the said defendant (state substance of it) having been filed with me, judgment is hereby rendered in favor of said A. B., plaintiff, against the said C. D., defendant, for the sum of dollars with dollars costs (here itemize the costs) amounting in all to '. . . dollars It is ordered on filing the agreement of the parties hereto that execution be stayed for days. C. W. H., [See Just. Ct. Act, §§ 261, 270.] j^^t;,, „f tj,, p,^,,. FOEMS. 509 No. 67. Docket. JUSTICE'S COURT. A.B. CD. January 24th, 19 . . , suminons issued in the above entitled action. Returnable January 30th, 19 . . , at 9 a. m., at my office in the town of January 24th, 19.., summons returned personally served on the defendant by R. L., constable. Fees, fifty cents. January 30th, 19 . . , 10 A. m. Plaintiff appeared in person and by A. L., his counsel. Defendant appeared in person and by C. J., his counsel. Plaintiff complained (here state complaint). Defendant answered (here state answer). Defendant demanded a jury, and the following names were drawn (here state names of jurors drawn). By consent case adjourned to February 10th, 19.., at 9 a. m., at my office. February 10th, 19. ., 10 a. m. Parties appeared as before (here state all the proceed- ings of the trial including the names of witnesses and verdict of the jury). Whereupon I did forwith and on the tenth day of February, 19.., render judgment in favor of the said plaintiff (or defendant as the case may be) and against the said defendant (or plaintiff as the case may be) for the sum of dollars damages and dollars costs, amounting in all to the sum of dollars. (Itemize the costs.) Dated February 10th, 19. [Just. Ct. Act, § 468.] C. W. H., Justice of the Peace. No. 68. Ezeoutioii. County op Town of as. In the Name of the People of the State of New York, to amy constable of said county. Whereas, Judgment was rendered by me, a justice of the peace of said town, in favor of A. B., plaintiff, against C. D., defendant, on the day of , 19. ., for the sum of dollars damages, and dollars costs, upon which there is now due the sum of dollars. Now, therefore, you are hereby commanded to satisfy the said judgment, together with your fees, out of the personal property of the said C. D., the judgment debtor, within your county, not exempt from levy and sale by virtue of an execution; and to bring the money before me by the return day of this execution, and do you return this execution within sixty days from the date hereof. Dated this day of , 19. .. C. W. H., Justice of the Peace. [Just. Ct. Act, § 282.] 510 CIVIL PEOCEDUEE. No. 69. Execmtiom Against tte Person. County op ] Town of , ) *■ ■ In the Name of the People of the State of Hiew York, to any constable of said county. Wheeeas, Judgment was rendered by xne, a justice of the peace of said town, in favor of A. B., plaintiff, against C. D., defendant, on the day of , 19. ., for the sum of dollars damages, and dollars costs, upon which there is now due the sum of dollars. Said action having been brought to recover damages for a wrongful conversion of personal property. You are, therefore, hereby commanded to satisfy said judgment, together with your fees, out of the personal property of the said C. D., the judgment debtor, within your county, not exempt from levy and sale by virtue of an execution; and to bring the money before me by the return day of this execution ; you are also commanded, if suf- ficient personal property cannot be found to satisfy the said judgment, to arrest the said C. D., and convey him to the jail of the said county, there to remain until he pays the judgment, or is discharged according to law. And you are to return this execution within sixty days from the date hereof. Dated this day of ,19... C. W. H., Justice of the Fjace. [Just. Ct. Act, § 2S2.J No. 70. Exefmtion for Chattel. COtTNTY OF ) ' Town of .., I *"■•" In the Name of the People of the State of New York, to any constable of said county. Wheeeas, Upon the day of , 19 . . , the undersigned rendered judgment in an action before him, in which A. B. wa,s plaintiflf, and C. D. was defendant, that the plaintiff recover of the ' defendant the possession of the following described chattels (here insert the description) or the sum of fifty dollars, in case a delivery thereof cannot be had, and also that he recover dollars damages, and dollars costs. You are hereby commanded to deliver the said chattels to the said A. B., if the same can be found within your county; and in case a delivery cannot be had, to satisfy the said sum of fifty dollars and interest thereon, and in either case to satisfy the said d^.mages and costs, together with your fees, out of the personal property of the said C. D., the judgment debtor, within said county not exempt from levy and sale by virtue of an execution; and to bring the money before me by the return day of this execution, and do you return this execution within sixty days from the date hereof. Dated this day of , 19 . . . C. W. H., Justice of the Peace. [Just. Ct. Act, § 309.] No. 71. Indorsement of Levy on Ezeontion. On the day of 19. ., by virtue of the within execution, I levied on the following personal property (here describe it). Dated this day of 19. . . H. O., ConstabliL [Just. ct. Act, § 288.] FOKMS. 511 No. 7SS. Ezeoation wHen. Warrant of Attachment was not PersonaUy Served. County of 1 Town of , J **■•■ In the Name of the People of the State of New York, to any constable of said county. Wheeeas, Judgment was rendered by me, a justice of the peace of said town, in favor of A. B., plaintiff, and against C. D., defendant, on the day of , 19. ., for the sum of dollars damages and dollars costs. And, Whebe:a.s, The summons in the said action was not served personally, and the defendant did not appear, that a warrant of attachment was duly issued in said action, and the following property (here describe it) was attached thereunder. You are therefore commanded to satisfy the said judgment, together with your fees out of the said property attached as aforesaid, and to bring the money before me by the return day of this execution. And do you return this execution within sixty days from the date hereof. Dated this day of , 19. . . C. W. H., Justice of the Peace. [Just. a. Act, § 288.] No, 73. Constable's Notice of Sale. By virtue of an execution, issued by a justice of the peace, against the property of C. D., I have levied, seized and taken the following described personal property (here describe it). I shall expose said property for sale at public auction, to the highest bidder, on the day of , 19. ., at nine o'clock in the forenoon, at the premises of the said C. D., in the town of , in the county of Dated this day of , 19. . ; H. O., Constable. [Just. a. Act, § 288.] No. 74. Notice of Application for Commission. JUSTICE'S COURT. 1. A. B. vs. C. D. J Please take notice that the undersigned will make an application before C. W. H., a justice of the peace, at his oflSce in the town of , on the day of , 19 • • , that a commission issue directed to K. C, at the town of to examine N. O., of the same place, as a witness on behalf of the plaintiff in the above entitled action upon interrogatories to be annexed to said commission. Dated this day of 19 . . . A. B., To C. D., Plaintiff. Defendant. [Just. Ct. Act, § 204.] 512 CIVIL PROCEDUEE. No. 75. Affidavit for a Commlssioiu JUSTICE'S COURT. A.B. vs. C. D. State op New Yobk, ) County of , f A. B., being duly sworn, says that he is the plaintiff in the above entitled action, that issue has been joined therein, that due and proper notice of an application for a commission has been personally served upon the defendant herein as more fully appears by the annexed notice and affidavit of service thereof; that N. O., of the town of , in the county of , is a material witness for the plaintiff in this action; that he cannot safely proceed to the trial thereof without the testimony of said witness, and that said K. O. is not within this county or an adjoining county. A. B. Subscribed and sworn to before me this day of 19 . me 1 [Just. Ct. Act, § 204.] H*. 76. GoBuilasloH. JUSTICE'S COURT. A. B. vs. CD. County of 1 Town of , I *'■•■ The People of the State of New York, to R. O., of the town of , in the county of , and State of New York. Whebeas, It appears to the undersigned, a justice of the peace of the town of , by the affidavit of A. B., the plaintiff in the above entitled action, that one N. O., of the town of , in the county of , is a necessary and material witness for the plaintiff on the trial of said action. Now, therefore, we do hereby appoint you commissioner, and authorize you, as such commissioner, to examine the said witness under oath, upon the interrogatories hereto annexed; to take and certify the deposition of said witness, and to return the same by mail, addresesd to me according to the directions contained in the sections of the Code of Civil Procedure, copies of which are heerto annexed. The said commissioner will return said commission to me at in the county of , and State of New York, by mail, on or before the day of 19. . . Dated this day of , 19 . . . C. W. H., Justice of the Peace. (Note. Annex a copy of sections 207 and 208 of the Justice Court Act. can easily be varied to a commission to examine witness orally.) [Juet. Ct. Act, § 202.] This form FOEMS. 513 No. 77. Interrogatories and Cross-Interrogatories. Interrogatories to be administered to N. O., a. witness to be examined under the annexed commission, on behalf of the plaintiff in the above entitled action. First. {Here insert the interrogatories.) A. B., Plaintiff. Cross-interrogatories to be administered to N. 0., a witness to be examined under the annexed commission, on behalf of the defendant in the above entitled action. First. (Here insert the cross- interrogatories.) C. D., Defendant. I hereby settle and approve the foregoing interrogatories and cross-interrogatories. Dated this day of 19. . . C. W. H., Justice of the Peace. No. 78. Depoaltlai JUSTICE'S COURT. A. B. vs. C. D. Deposition of witness produced, sworn and examined the day of , 19.., upon interrogatories and cross-interrogatories under a commission isued herein and hereto annexed, in a cause pending before C. W. H., justice of the peace of the town of , in the county of wherein A. B. is plaintiff and C. D. is defendant, as follows: N. 0., of the town of , in the county of , being duly and publicly sworn, pursuant to the directions hereto annexed, in answer to the said inter- rogatories and cross- inerrogatories, deposes and says as follows: First. To the first interrogatory he says (here insert answer and so on throughout ths interrogatories and cross-interrogatories). Subscribed and sworn to before me ' this day of ,19... E. C, Commissioner. (Note. Commissioner must sign each half sheet.) [Just. Ct. Act, §§ 207, 208.] 33 514 JUSTICE'S COURT. CIVIL PKOCEDUEE. No. 79. Notice of ApfieaL A.B. vs. CD. Gentlemen: Please take notice that the defendant in the ahove entitled action hereby appeals to the county court of the county of from the judgment rendered in the above entitled action by and before C. W. H., justice of the peace, in favor of the plaintiff, and against the defendant, on the day of 19. ., for the sum of ••• dollars damages and dollars costs. Dated this day of , !*• ■ • Yours, &o., C. D., Defendant. To C W H., Esq., justice of the peace, and A. B., plaintiff. (Note. If a new trial is demanded add: . "and the said defendant demands a new trial in the appellate court.") [Just. Ct. Act, §§ 428, 442.] No. 80. Undertak^g to Stay Ezeontiom. JUSTICE'S COURT. A. B. vs. CD. Whebeas, On the day of , 19. ., the plaintiff in the above entitled action recovered a judgment therein against the defendant for the sum of dollars damages and dollars costs, and whereas, the defen- dant intends to appeal from said judgment to the county court of the county of Now, therefore, we, the undersigned, do jointly and severally undertake, pursuant to the statute, that if the appeal is dismissed, or judgment is rendered against the appel- lant in the appellate court, and an execution issued thereupon is returned wholly or partly unsatisfied, we will pay the amount of the judgment or the portion thereof re- maining unsatisfied, not exceeding the sum of dollars. (At least one hundred dollars and not less than twice the amount of the judgment.) Dated this day of , 19. .. (Signatures.) (Add acknowledgments, justification and approval as in form No. 35.) [Just. a. Act, § 434.] rORMS. 515 Ifo. 81. Notioe of DellTerjr o£ Snob. Undertaking. JUSTICE'S COURT. A.B. vs. C. D. Take notice, that an undertaking of which the within is a copy, was deliyered to and filed with C. W. H., Esq., justice of the peace, on the day of , 19... Dated this day of , 19. .. Yours, etc., C. D., Appellant. To A. B., Plaintiff. [Just. Ct. Act, § 434.] No. 82. Jastioe'a Return. JUSTICE'S COURT. A. B. vs. C. D. To the County Court of the county of Pursuant to section 3053 of the Code of Civil Procedure, I, the undersigned justice of the peace do respectfully return that the annexed notice of appeal was served on me on the day of 19 . . , and the costs included in the action, and my fee of two dollars for making the return, was then paid to me, and the annexed undertaking was delivered to me at the same time; that the following were all the pro- ceedings taken in the above entitled action, including all the evidence given therein, and the judgment entered therein: (Here state all the proceedings, the evidence and the judgment. Also annex the notice of appeal and undertaking, if any.) C. W. H., Justice of the Peace. Dated this day of , 19. .. [Just. Ct. Act, § 438.] No. 83. XCTaTTant for a Contempt. COUI^TT OP ,) Town of J ss.: In the Name of the People of the State ef New York, to any Constable of the County of You are hereby commanded to bring A. B. before me, to show cause why he, the said A. B., should not be punished for a criminal contempt, committed on the day of , 19 - • , before me while engaged as a justice of the peace in the trial of an action. Given under my hand, at the town of , this day of , 19... C. W. H., Justice of the Peace. [Just. a. Act, § 21.] 516 CIVIL PKOCEDUEE. No. 84. Record of Conviotion for Contempt. County of ) Town of , \ **• WHEStEAS, on the day of , 19 . . , one A. B. was brought before me, the undersigned, a justice of the peace of said town, in custody of a constable pursuant to a warrant issued by me directed to any constable of the county of commanding him to bring the said A. B. before me to show cause why he should not be punshed for a criminal contempt committed before me on the day of , 19 . . , while engaged as a justice of the peace in the trial of an action, and the said A. B. having thereupon been informed by me of the offense charged, which is hereinafter stated, and having been given an opportunity to be heard in his defense, and having failed to show any defense to such charge or any cause why he should not be punished for the contempt charged, the said A. B. was there- upon by me, the said justice, adjudged guilty and convicted of criminal contempt in having on the day of , 19 . . , ( here state the particular circum- stances of the offense) and also ordered and adjudged that the said A. B. for the con- tempt aforesaid pay a fine of dollars and be imprisoned in the county jail of said county for a term of days. Given under my hand at said town this day of , 19. .. C. W. H., Justice of the Peace. [Just. Ct. Act, § 22.] No. 85. Conunitment for Contempt. COUNTT OP 1 Town of , j **■•■ The People of the State of Ifew York, to any constable of said county, and to the keeper of the common jail of said county, Greeting: Whebeas, a. B. was on the day of , 19. ., brought before me, the undersigned, a justice of the peace of the town of in said county, charged with criminal contempt in having (here state the particular circumstances of the offense) and having been informed of the charge against him and given an oppor- tunity to be heard in his defense thereto, and having failed to make any defense to such charge, was thereupon by me, the said justice, adjudged guilty and convicted of the criminal contempt aforesaid and adjudged to pay a fine of dollars and to be imprisoned in the county jail of county days, Therefore, you, the said constable, are hereby commanded to take, convey and deliver the said A. B. into the custody of the keeper of said jail, and you, the said keeper, are hereby required to receive the said A. B. into your custody in said jail and him there safely keep during the term of days or until he is duly discharged accord- ing to law. Dated this day of , 19. .. C. W. H., Justice of the Peace. [Just. Ct. Act, § 23.] FORMS. 517 No. 86. Affidavit to Obtain Order of Arreati JUSTICE'S COURT. A.B. vs. C. D. County of , ««.; A. B., being duly sworn, says, that he is the plaintiff in the above entitled action; that the defendant is not a resident of the county in which this action is brought. (Here state the facts upon which the order of arrest is asked.) Subscribed and sworn to, etc. A. B. [See Just. Ct. Act, § 62.] No. 87. IJndertaUiiK. JUSTICE'S COURT. A. B. vs. C. D. Wheebas, The plaintiff in the above entitled action has applied for an order of arrest in this action, against the defendant therein. Now, therefore, we do jointly and severally undertake, that if the defendant re- covers judgment herein, the plaintiff will pay all costs which may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceed- ing the sum of dollars (it must be at least one hundred dollars). Bated this day of , 19. . . Signatures. (Add acknowledgments, justification and approval as in Ko. 35.) [Just. Ct. Act, § 62.] Ne. 88. Order of Azreat. JUSTICE'S COURT. A.B. vs. C. D. To the Constable serving the within summons: Whereas, This action is brought to recover damages for (here state cause of action), and it appears to me by the affidavit of A. B., verified the day of , 19. ., that a sufficient cause of action exists against the said defendant, that that he (here state the facts upon which the order is granted) ; 518 CIVIL PEOCEDUKE. Therefore you are hereby directed to arrest, the said defendant O. D., if he can be found within your county, and bring him forthwith before me; and that you notify the plaintiff of the arrest, if you can do so with reasonable diligence. Dated this day of , 19. .. C. W. H., Justice of the Peace. [Just. Ct. Act, § 63.] No. 89. Constable's Return. I hereby certify that I executed the within order of arrest, by arresting the said defendant and taking him forthwith before the justice who issued the same and that I have notified the plaintiff thereof. Dated this day of ,19... H. O., Constable. [Just. Ct. Act, § 66.] No. 90. Affidavit for Attachment of Property. County of , ss.: A. B., being duly sworn, says that he resides in the town of , in said county and that C. D. also resides therein; that on the day of 19. ., deponent loaned to the said C. D. at his request one hundred and thirty dollars, which sum C. D. proriiised and agreed to repay to deponent on the Saturday next follow- ing; that more than thirty days have elapsed since the time so agreed for repayment and no part of said sum has been repaid, and that deponent is entitled to recover of said C. D. one hundred and thirty dollars so loaned, over and above any counterclaims in favor of C. D. known to deponent. And deponent further says that since the making of the loan as above stated seve- ral actions have been commenced against C. D. in the Supreme Court upon sundry promissory notes made or indorsed by hirti;. that he has sold the farm upon which he resides to his son, a minor of about nineteen years of age; and as deponent, is informed and verily believes, the said C. D. is about to depart from the county of with intent to defraud his creditors ; that the sources of deponent's information and the grounds of his belief are as follows: (here state the information and its sources and the facts tending to show such intent.) Wherefore deponent hereby makes application to C. W. H., justice of the peace, that a summons be issued to deponent for the commencement of an action by him against the said C. D. upon the cause of action before stated, and that a warrant of attachment against the property of the said C. D. be granted by said justice to accompany the summons. A. B. Subscribed and sworn to before me 1 this day of , 19 . . . f C. W. H., Justice of the Peace. [Just. Ct. Act, § 75.] FORMS. 519 No. 91. Undertaking ' on Attaobment. JUSTICE'S COURT. A.B. vs. CD. WHEEBiiS, A. B., the above named plaintiff, is about to commence an action for the recovery of money against the above named defendant, and has made (or is about to make) an application for an attachment According to the provisions of the Code of Civil Procedure against the property of the defendant. Now, therefore, we hereby jointly and severally undertake and agree to and with the defendant, that if the defendant recovers judgment, or if the warrant of attach- ment is vacated, the plaintiff will pay all costs which may be awarded to the defendant and all damages which he may sustain by reason of the attachment, not exceeding dollars (which must be at least two hundred dollars) . And that if the plaintiff recovers judgment he will pay to the defendant all money received by him from property taken by virtue of the warrant of attachment, or upon any bond given therefor, over and above the amount of the judgment, and interest thereupon. Dated this day of ., 19. .. (Signatures.) (Add acknowledgments, justification and approval as in form No. 35.) [Just. Ct. Act, § 77.] No. 02. Warrant of Attaclunent. JUSTICE'S COURT. A. B. vs. CD. The People of the State of New York to the Constable to whom the within summons is delivered: Wheeeas, It appears to my satisfaction by the affidavit of A. B., that the plaintiff in the above entitled action has a cause of action to recover a sum of money only (her© state the cause of action), against the defendant. That the amount of the plaintiff's claim is dollars, over and above all counterclaims (here state the grounds upon which the warrant is granted) ; and, Wheeeas, A summons has been issued by me herein in favor of the plaintiff and against the said defendant, and the plaintiff has filed with me an undertaking in due form approved by me; now, therefore, you are hereby commanded and required to attach on or before the day of , 19 . . , and safely keep so much of the property, within your county, which the defendant has, as will satisfy the plain- tiff's demand, with the costs and expenses, and to make return of your proceedings herein to the undersigned when the summons is returnable. Dated this day of , I'S. .. C. W. H., Justice of the Peace. [Just. Ct. Act, § 76.] 520 CIVIL PROCEDUEE. No. 93. InTentoiy on Attaolunent. JUSTICE'S COURT. A. B. vs. Wells Company. I have this day by virtue of the warrant of attachment hereir taken an inventory of the property attached and the estimated value of each and every item or article thereof; and the same is as follows: (Here give the list of articles and value of each article.) Dated this day of , 19. .. H. O., Constable, [Just. Ct. Act, § 78.] No. 94. Defendant's TTndertabing on Attaolunent. JUSTICE'S COURT, A. B. vs. C. D. Wheebas, a. B., the plaintiff above named, has obtained a warrant of attachment against the property of C. D., the defendant, by virtue of which the constable to whom the warrant was delivered has levied upon and taken into his custody certain goods and chattels of the defendant which the defendant desires redelivered to him by said constable. Now, therefore, for the purpose of obtaining such redelivery pursuant to section 2911 of the Code of Civil Procedure, we, C. D., defendant, and E. P. and G. I., sureties, do hereby jointly and severally undertake to said plaintiff in the sum of dollars (that being at least twice the value of the property as stated in the inventory), that if judgment is rendered against the defendant and an execution is issued thereupon within six months after the giving of this undertaking the property attached shall be produced to satisfy the execution. Dated this day of , 19. .. (Signatures.) (Add acknowledgments, justification and approval as in form No. 35.) [Just. Ct. Act, § 81.] FOKMS. . 521 No. 95. Attadunent; Bond for Delivery to Third Pemoxu JUSTICE'S COURT. A,B. vs. C. D. Know all men by these presents, that we, E, F., G. H. and I. F., all of the town of in the county of and State of New York, are held and firmly bound unto A. B. in the sum of dollars to be paid to the said A. B. or to his certain attorney, executors, administrators or assigns, for which payment well and truly to be made we bind ourselves, our heirs, executors and administrators jointly and severally firmly by these presents. Sealed with our seals this day of , 19... Whbbeas, certain goods and chattels, to wit, (describe the goods claimed) have been seized by , a constable under a warrant of attachment issued by C. W. H., a justice of the peace of the town of in the county of , in favor of said A. B. against the property of C. D., and Whebeas, the above bounden E. F. claims the goods and chattels above described as his property and the defendant has not reclaimed the same; Now, therefore, the condition of this obligation is such that if, in an action upon this bond commenced within three months after the filing thereof with said justice, the said E. F. shall establish that he was the general owner of the property above described at the time of such seizure, or in case he fails to do so he shall pay to A. B. the value thereof with interest, then this obligation to be void, otherwise to remain in full force and eflFect. (Signatures and seals.) (Add acknowledgments, justification and approval as in form No. 35.) [Just. Ct. Act, § 82.] No. 96. Replevin; Afftdavit for. JUSTICE'S COURT. A.B. vs. CD. COVSTi OF «*•• . A. B., being duly sworn, says that he resides in the town of , and is the plaintiff in the above entitled action. That he is and during all the time hereinafter stated, was the owner and entitled to the immediate possession of the following de- scribed personal property (here describe property). That the same are of the value of dollars. That on the day of 19-., the above named defendant wrongfully entered the plaintiff's premises and without the knowledge or consent of deponent took and carried away said property, and now wrongfully de- tains the same. That the deponent has no knowledge or information as to the cause of the defendant's taking and detaining said property (if cause of detention is known state it here). That said chattels have not been taken by virtue of a warrant against the plaintiff for the collection of a tax, assessment or fine issued in pursuance of a statute 522 CIVIL PROCEDimE. of the state, or of the United States; that said chattels have not been seized by virtue of an execution or warrant against the property of the plaintiff, or of any other per- son from or through whom the plaintiff has derived title to said property or any part thereof since the seizure thereof; that the actual value oT each of said chattels is as above stated amounting in the aggregate to dollars. A. B. Subscribed and sworn to before me 1 this day of , 19. .. J [Just. Ct. Act, § 95.] No. 97. ITndertaliiiig in Replevin. JUSTICE'S COURT. A. B. 1 ! c. D. m Wheeeas, Affidavit has been made by A. B., the plaintiff in the above entitled action, that the defendant therein wrongfully detains certain chattels mentioned in said affidavit of the value of dollars, and that the plaintiff claims the imme- diate delivery of such chattels to him. Now, therefore, in consideration of the taking of said property, or any part thereof, by virtue of said affidavit and the requisition indorsed thereon, we, the undersigned, do hereby jointly and severally undertake and become bound to the defendant in the sum of dollars (twice the value of the property stated in the affidavit) for the prosecution of the said action, for the return of the said chattels to the said defendant, if possession thereof is adjudged to him, or if said action abates, or is dis- continued before said chattels are returned to the defendant, and for the payment to the defendant of any sum which the judgment awards to him against the plaintiff. Dated this day of , 19 . . . (Signatures.) (Add acknowledgment, justification and approval as in Form No. 35.) [Just. Ct. Act, §§ 94, 97.] No. 98. Beanisitiom to Replevy. JUSTICE'S COURT. A. B. vs. CD. To the constable to whom the armexed summons is delivered: I hereby require you to replevy the chattels mentioned and described in the annexed affidavit on or before the day of , 19 . . . Dated this day of , 19. .. C. W. H., Justice of the Peace. [Just. Ct. Act, § 99.] FOEMS. 523 No. 99. Notice of Ezeeptioii to Snreties. JUSTICE'S COURT. A. B. vs. C. D. i J Please take notice, that the defendant in the above entitled action excepts to the suflBcieney of the plaintiff's sureties, and to the form and sufficiency of the undertaking. Dated this day of , 19. .. C. D., Defendant. To A. B., Plaintiflf. [Just. Ct. Act, § 105.] No. 100. Notice tliat Defendaat Xteclaims Cbattel. JUSTICE'S COURT. A. B. vs. C. D. J Please take notice, that I require the return to me of the chattels replevied in thif. action. Dated this day of , 19 . . . C. D., Defendant. To C. W. H., Justice of the Peace. [Just. Ct. Act, § 106.] No. 101. Affidavit to Beolaim Cliattel. JUSTICE'S COURT. A. B. vs. C. D. C. D., being duly sworn, says that he is the defendant in the above entitled action, and is the owner and entitled to the possession of the chattels mentioned and described in the affidavit of the plaintiff herein (set forth facts showing ownership and the right to possession). O. D. Subscribed and sworn to, etc. [Just. Ct. Act, § 106.] 524: CIVIL PROCEDUKE. No. 102. Defendant's UndeTtaldng in Replevin. JUSTICE'S COURT. A.B. va. C. D. Whebeas, The plaintiff in the above entitled action has replevied from the defendant tlierein the following described chattels (here insert description) of the value of dollars ; and, WHEatEAS, The defendant is desirous of having the said chattels returned to him. Now, therefore, we, C. D., defendant, and E. F. and G. H., sureties, for the procuring of such return, and in consideration thereof, do hereby jointly and severally undertake and become bound in the sum of dollars (at least twice the value of the property as stated), for the delivery of said chattels to the plaintiff, if delivery thereof is adjudged; and for the payment to him of any sum which the judgment awards against the defendant. Dated this day of , 19 . . . (Signatures.) (Add acknowledgment, justification and approval as in Form No. 35.) [Just. Ct. Act, § 106.] No. 103. Affidavit of Claim by Third PeMon. JUSTICE'S COURT. A. B. vs. C. D. E. F., being duly sworn, says that at the time the replevy thereof he was the owner of and entitled to the possession of the chattels described in the plaintiff's affidavit herein, which are described as follows (here insert description) : That he claims as against the defendant herein the right to the possession of said chattels, and that his right thereto arises from (here state the facts showing his right to the possession of said chattels). Subscribed and sworn to, etc, E. F. [Just. Ct. Act, § 107.] No. 104. Undertaking of FlaintifC to Indemnify Constable Against Claim of TUrd Party in Replevin. JUSTICE'S COURT. A. B. vs. C. D. Whereas, H. 0., constable, has replevied in this action and now holds the following described chattels (here insert description) : And, whereas, one E. F. now claims to liave the right to the possession thereof, and has served an affidavit as required by FOEMS. 525 law; and, whereas, the said constable has. served the plaintiff herein with a copy thereof and a notice that he requires to be Indemnified against such claim. Now, therefore, we do hereby jointly and severally undertake and become bound to the said H. 0., constable, that we will indemnify him against any liability for damages, costs or expenses in any action brought against him by the said claimant, or any person deriving title from or through him by reason of the taking or holding of the said chattels, or delivering the same to the plaintiff, not exceeding the sum of dollars. Dated this day of , 19 . . . (Signatures.) (Add acknowledgment, justification and approval as in Form No. 35.) [Just. Ct. Act, § 109.] No. 105 Petition on Seiznre of Strays. To C. W. H., Justice of the Peace: The petition of A. B. respectfully shows: That the following animals (here describe the animals) were on the day of , 19.., running at large in a public street (here name the street or highway) bordering upon real property owned and occupied by your petitioner; that said animals did on that day enter upon the real property of your petitioner so owned and occupied by him and trespassed upon the said real property; that said animals having entered thereupon from said public street. That your petitioner, seized and now has the said animals in his possession and that the owner thereof is M. N. Whebetore, Your petitioner prays for a final order directing the sale of said animals seized as aforesaid and the application of the proceeds thereof as prescribed by law. Dated this day of , 19 . . . A. B. County of , ss.: A. B., being duly sworn, says that he has read the foregoing petition by him sub- scribed and knows the contents thereof, that the same is true to his own knowledge except as to the matters therein stated to be alleged on information and belief, snd as to those matters he believes it to be true. A. B. Subscribed and sworn to, etc. [Just. Ct. Act, § 349.] No. 106. Precept on Seizure of Strays. In the Name of the People of the State of New York: To M. N. Wheeeas, a. B. presented a petition dated and verified the day of , 19.., (state substance of the petition and describe the animals), and praying for a final order directing the sale of said animals, and the application of the proceeds as prescribed by law. You are, therefore, hereby required to show cause before me at my office, in the town of , on the day of 19 . . , at o'clock la the noon of the same day why the prayer of the petitioner should not be granted. Dated this day of , 19. .. C. W. H., Justice of the Peace. [Just. a. Act, S 350.] 526 CIVIL PKOCEDUEE. No, 107. Final Order Directing Sale on Seizure of Strays. WHBaiEiis, A. B. presented to me his petition dated and verified the day of , 19 . . , stating ( here state the substance of the petition ) ; and, Whereas, a precept was directed to M. N., having been issued upon said petition directing (here state substance of precept), and such precept having been served personally on said M. N. on the day of 19, and he having failed to appear on the return day thereof, it is Ordered, That the said animals be sold and the proceeds thereof be applied as prescribed by law. Dated this day of , 19. . . C. W. H., Justice of the Peace. [Just. Ct. Act, § 354.] No. 108. Warrant to Sell; on Seiznre of Strays. In the Name of the People of the State of New York: To any Constable of the county of : Whereas, a final order was made by me on the day of , 19 . . , upon the petition of A. B., and due proceedings had thereon, directing the sale of the following described animals (here insert description), and the application of the proceeds thereof as prescribed by law. You are, therefore, hereby directed to sell the said animals at public auction, for the best price which you can obtain therefor, and to make return thereof to me on the day of ,19... Pated this day of , 19. . ., C. W. H., Justfce of the Peace. [Just. Ct. Act, § 354.] No. 109. Notice to Pay Bent. SlB : Take notice that I hereby require that you either pay me the sum of dollars for the rent of (here describe premises) now occupied by you, or the possession thereof on or before the day of , 19. .. (At least three days after service.) Dated this day of 19. . . A. B., To,M. N., tenant. Landlord. [Civ. Prae. Act, § 1410.] No. 110. Petition for Removal of Tenant on Failure to Pay Bent. To C. W. H., Justice of the Peace, of the tovm of in the county of : The petition pf A. B. respectfully shows that you petitioner is the owner and lessor of the following described premises (here describe them accurately) : That on or about the day of , 19 . . , your petitioner entered into a contract with M. N. whereby it was agreed that the said M. N. should have and occupy the said premises for the term of one year at the monthly rent of dollars, payable each and every month in advance. That on the day of , 19 . . , there became due and owing to FORMS. 527 your petitioner from said M. N. the sum of dollars, as and for the rent of said premises for the month of That payment thereof was demanded and refused by said M. N. That thereafter and on the day of , 19 . . , your petitioner personally served upon the said M. N. a notice, a duplicate of which is hereby annexed, made a part hereof, and marked "A" (annex the notice as in form No. 109). That said M. N. has not paid said rent or any nart thereof, or surrendered the possession of said premises. Wherefore, your petitioner prays for a final order removing said M. N. from said premises. Dated this day of , 19. .. (Petitioner's Signature.) (Add verification as in Form No. 105.) [Civ. Prae. Act, § 1415.] No. 111. Precept to Remove Tenant. In the Name of the People of the State of New York, to M. N.: Wheeeias, On the day of 19. ., A. B. duly presented hia verified petition to me, stating ( here give substance of petition and an exact description of premises) and praying for a final order to remove you from the said premises. You are therefore commanded forthwith to remove from the said premises, or to show cause before me at my office in the town of , on the day of , 19. ., at ten o'clock in the forenoon, why possession of said Tjremises should not be delivered to the said petitioner. Dated this day of 19... C. W. H., Justice of the Peace. [Civ. Prac. Act, § 1418.] No. 112. Answer of Tenant. A. B., Landlord, vs. M. N., Tenant. M. N., for an answer to the petition of A. B., dated the day of , 19.., praying for the removal of this defendant from the premises described in said petition : First. Denies that he owes said A. B. any rent on account of said lease or occupancy of said premises. Second. ■ Alleges that he has fully paid said A. B. for the rent of said premises, according to the terms of said contract (or any other defense which the tenant may have). Wherefore, the defendant demands judgment dismissing the petition with costs. M. N., Defendant. (Add verification as in Form No. 115. [Civ. Prac. Act, § 1425.] 528 CIVIL PROCEDURE. No. 113. Final Order. A. B., Landlord, vs. M. N., Tenant. Whereas, A. B., having presented to me his petition duly verified and a precept, returnable this day, having been issued by me thereupon, and the same having been duly served on M. N., and the said M. N., upon the return thereof having failed to show any cause as required by the said precept: it is Ordered and adjudged that dollars became due to A. B. from the said M. N. on the day of , 19. ., for rent of the premises described in the said petition, that the same remains wholly unpaid; and the said M. N. still holds possession of said premises without permission of the said petitioner; that possession of the said premises be delivered to the petitioner, that he recover the sum of dollars for the costs of this proceeding, against the said M. N., and that a warrant issue to put him in possession thereof, and an execution issue to collect the said costs (here itemize the costs). Dated this day of , 19. .. C. W. H., Justice of the Peace. [Just. Ct. Act, § 1430.] No. 114. Warrant of Dispossession. In the Name of the People of the State of New York: to any Constable in the town of , in the county of : Whereas, A. B. duly presented to me his petition duly verified on the day of , 19'. ., {here state substance of petition and a particular description of the premises) and praying for a final order to remove M. N. from said premises; that thereupon I issued a precept requiring the said M. N., forthwith (here state the whole substance of the precept) which was returned with due proof that personal service thereof was made on the said M. N. on the day of , 19. ., and said M. N. not appearing before me on the return thereof, and no cause having been shown by him why the prayer of said petitioner should not be granted. Now, therefore, you are commanded to remove all persons from the premises, and put the said petitioner into the full possession thereof. Dated this day of 19 . . . C. W. H., Justice of the Peace. [Just. Ct. Act, § 1432.] No. 115. Verification to a Pleading. County of , ss.: A. B., being duly sworn, says, that he is the plaintiff (or defendant as the case may be) in this action, and has read the foregoing complaint (or answer as the case may be) and knows the contents thereof; that the same is true to the knowledge of deponent, except as to the matters therein stated to be alleged upon information and belief, and as to those matters he believes it to be true. A. B. Subscribed and sworn to, etc. [See Just. Ct. Act, § 154.] FOKMS. 529 No. 116. TranBoript of Jvdgmeat. JUSTICE'S COURT. A. B. vs. I C. D. I I Judgment in this action was rendered for the plaintiff and against the defendant April 17th, 19... Recovery $ Costs $ Total $ I hereby certify that the foregoing is a true transcript from my docket of a judgment rendered by me herein. Dated this day of , 19... C. W. H., Justice of +hp Peace. [Just. Ct. Act, § 272.] PART III. Criminal Actions and Proceedings. CHAPTER I. OEIMINAL STATUTES IN GENEEAl ; PBEVENTION OF CEIME. Section 1. Criminal law statutes. 2. Independence of civil and criminal laws. 3. Security to keep the peace. 4. Prevention and suppression of riots. § 1. Criminal law statutes. In 1909 the Legislature of the State of New York passed an act enti- tled "An act for the punishment of crime, constituting chapter forty of the consolidated laws," to be known as the Penal Law. This statute specifies the classes of persons who are deemed capable of crimes, and liable to punishment therefor ; defines the nature of the various crimes ; and prescribes the kind and measure of punishment to be inflicted for each. (Penal Law, § 20.) It is in fact a substantial re-enactment of the former Penal Code, which was, in. turn, a revision of prior laws upon the same subject and a substitute for the scattered and fragmentary legislation that preceded it. Whenever a question arises as to whether an act or omission charged as wrongful constitutes a crime, or what kind or degree of crime, this statute must be resorted to for its determination. This statute left untouched the procedure against persons charged with crime; the courts and oflBcers having jurisdiction of criminal offenses; and the various steps in a criminal action or proceeding from its incep- tion to its termination. This necessary part of the criminal statutes was furnished by chapter 442 of the Laws of 1881, entitled "An act to establish a code of criminal procedure," known as the Code of Criminal Procedure of the State of New York. This act, as amended, contains the rules governing the procedure in courts having criminal jurisdiction. It is divided into six parts. The first relates to courts having original jurisdiction in criminal actions; the second relates to the prevention of crime; the third relates to the judicial proceedings for the removal of public officers by impeachment or otherwise; the fourth relates to the 531 532 CKIMINAL ACTIONS AND PKOCEEDINGS. proceedings in criminal actions prosecuted by indictment ; the fifth relates to proceedings in special sessions and police courts ; and the sixth relates to special proceedings of a criminal nature. (Code dim. Pro., § 2.) In the following pages the matters embraced in Part First of the Code of Criminal Procedure will not be considered except incidentally; the. matters treated in Part Second will be considered briefly in this chapter; the matters embraced in Part Third are of no special interest to magis- trates not in danger of impeachment and will be omitted; the matters embraced in Part Fourth will be considered in chapter second of this outline so far as it relates to proceedings before a magistrate, but no further; and the matters embraced in Parts Fifth and Sixth will be the subject of chapter third. § 2. Independence of civil and criminal laws. Before taking up the subject of this article it may be well to consider what relation, if any, the civil and the criminal law of this State bear to each other. It is well settled both by statute and the decisions of our courts that the civil and criminal laws of this State are so far independent of each other, that where the violation of a right admits of a civil action and also of a criminal prosecution, the one is not merged in the other, and that both remedies may be prosecuted successively or at the same time. {People V. Snyder, 90 App. Div. 422, 86 N. Y. Supp. 415 ; City of New York V. Williams, 48 Misc. 77, 96 N. Y. Supp. 237 ; Neiuton v. Porter, 5 Lans. 416. See also Civ. Prac. Act, § 9; Code Crim. Proc, § 5-a; Penal Law, §§ 23, 24.) This has been made by statute a part of the policy of this State from early times. Thus, where a statute provides a penalty for the doing of a prohibited act, and also makes the doing of the act a misdemeanor, a party guilty of doing that act may be proceeded against in a civil action to recover the amount of the penalty, and also in an independent criminal action to punish him for the crime, notwithstanding the fact that an action for a penalty is quasi criminal in character, that both remedies are prosecuted in the name of the people, and that the evidence which will support a judgment for the penalty may also support a conviction for the crime. (See People v. Stevens, 13 Wend. 341 ; People v. Snyder. 90 App. Div. 422. 86 N. Y. Supp. 415; People v. Meahin, 133 N. Y. 214, 224.) The general rules of evidence in civil and in criminal actions and pro- ceedings are the same, although in a criminal prosecution the mode of eliciting proof is more restricted than in a civil case, the taking of the evidence of a nonresident witness by commission at the instance of the CKIMINAL STATUTES IN GENEEAL. 533 people is not permissible, and the evidence must be such as to satisfy the jury of the guilt of the defendant beyond a reasonable doubt. § 3. Security to keep the peace. One of the modes in which crimes may be prevented by the intervention of the officers of justice is by requiring security to keep the peace. (Code Crim. Pro., § 82.) An information may be laid before any magistrate (see Id., §§ 146, 14Y), that a person has threatened to commit a crime against the person or property of another. (Id., § 84.) The form of a complaint or informa- tion on an application for the intervention of the magistrate to prevent the commission of the threatened crime is given in a subsequent part of this volume. (See Form. 'No. 1.) When such an information is laid before a magistrate he must examine the complainant on oath, and any veitnesses he may produce, reduce the examination to vrriting, and cause them to be subscribed by the parties making them. (Code Crim. Pro., § 85. See Form No. 2.) If it appears from such examination that there is just reason to fear the commission of the crime threatened by the person complained of, the magistrate must issue a warrant as prescribed in section 86 of the Code. (See Form No. 3.) When the person complained of is brought before the magistrate, if the charge is controverted, the magistrate must take testimony in relation thereto, and the evidence must be reduced to writing and subscribed by the witnesses. (Code Crim Pro., § 87.) This necessarily presupposes that the magistrate has informed the party of the charge made against him. If it appear that there is no just reason to fear the commission of the crime alleged to have been threatened, the person complained of must be discharged (Id., § 88) ; and if there is reason for such fear he may be required to give the security prescribed by section 89 of the Code of Criminal Procedure (see Form No. 4), and on giving it will be dis- charged. (See Form No. 8.) If the undertaking is not given the magis- trate must commit him to prison as required by section 90 of that act. (For form of warrant of commitment see Form No. 5.) The person so committed may be discharged by any two justices of the peace of the county, or police or special justices of the city, upon giving the security. (Code Crim. Pro., § 91. For Form see No. 7.) The statute further provides that a person, who, in the presence of a court or magistrate, assaults or threatens to assault another, or to commit a crime against his person or property, or who contends with another m angry words, may be thereupon ordered by the court or magistrate, to 534 CKIMINAL ACTIONS AND PEOCEEDINGS. give security as provided in section 89, or if he refuses to do so, may be committed as provided in section 90. (Code Crim. Pro., § 93. See Form No. 6.) The further proceedings are in the County Court. " Security to keep the peace, or to be of good behavior, cannot be required, except as pre- scribed in this chapter." (Code Crim. Pro., § 99.) § 4. Prevention and suppression of riots. When a sheriff or other public oflBcer, authorized to execute process, has reason to apprehend that resistance is about to be made to the execution of process, he may command as many male inhabitants of his county as he thinks proper, to assist him in overcoming the resistance, and, if neces- sary, in seizing, arresting and confining the resisters and their aiders and abettors, to be punished according to law. (Code Crim. Pro., § 102.) The oflBcer must certify to the court from which the process issued the names of the resisters and their aiders and abettors, to the end that they may be proceeded against for contempt. (Code Crim. Pro., § 103.) Every person commanded by a public officer to assist him in the execution of process, as provided in section one hundred and two, who, without lawful cause, refuses or neglects to obey the command, is guilty of a misdemeanor. (Code Crim. Pro., § 104.) When persons, to the number of five or more, armed with dangerous weapons, or to the number of ten or more, whether armed or not, are unlawfully or riotously assembled in a city, village or town, the sheriff of the county and his under sheriff and deputies, the mayor and alder- men of the city, or the supervisor of the town, or president or chief executive officer of the village, and the justices of the peace or the police justices of the city, village or town, or such of them as can be forthwith collected, must go among the persons assembled and command them in the name of the people of the state, immediately to disperse. (Code Crim. Pro., § 106.) If the persons assembled do not immediately disperse, the. magistrates and officers must arrest them, or cause them to be arrested, that they may be punished according to law ; and for that purpose, may command the aid of all persons present or within the county. (Code Crim. Pro., § 107.) If a person so commanded to aid the magistrates or officers, neglects to do so, he is deemed one of the rioters, and is punish- able accordingly. (Code Crim. Pro., § 108.) If a magistrate or officer having notice of an unlawful or riotous assembly, mentioned in section one hundred and six, neglects to proceed to the place of the assembly, or as near thereto as he can with safety, and to exercise the authority with which he is invested for suppressing the CEIMINAL STATUTES IN GENEEAL. 585 same and arresting the offenders, he is guilty of a misdemeanor. (Code Crim. Pro., § 109.) If the persons assembled, and commanded to dis- perse, do not immediately disperse, any two of the magistrates or officers mentioned in section one hundred and six, may command the aid of a sufficient number of persons, and may proceed in such manner as in their judgment is necessary, to disperse the assembly and arrest the offenders. (Code Crim. Pro., § 110.) 536 CEIMINAL ACTIONS AND PKOCEEDINGS. OHAPTEK n. PBOCEEDINGS IN CRIMINAL ACTIONS PEOSECUTED BY INDICTMENT. Section 1. Information. 2. Depositions. 3. Summons or warrant. 4. Execution of warrant. 6. Arrest without warrant. 6. Defendant to be informed of charge and of right to counsel. 7. Waiver of examination. 8. Adjournment. 9. Reading of depositions and examination of witnesses. 10. Statement by defendant. 11. Discharge or commitment of defendant. 12. Bail. 13. Undertaking for witnesses to appear. 14. Miscellaneous matters. § 1. Information. The first step in the proceeding before the magistrate, where the defendant is not already before him under arrest without a warrant, is the presentation to that officer of an information, which is defined by statute as the allegation that a person has been guilty of some designated crime. (Code Crim. Pro., § 145. See Cook's Annotated Criminal Code, p. 84-) This definition would seem to require, where the real defendant is known, a designation of the person so sufficiently clear that there would be no justification for attempting to make him a witness against himself, as might be the case' in a John Doe proceeding, and at the same time a designation of the crime which it is alleged such person has committed, not by an argumentative, blanket allegation of facts and conclusions, but by a plain and concise statement that some known crime, such as murder, arson, burglary, grand larceny, conspiracy or assault has been committed. (People ex rel. Sampson v. Dunning, 113 App. Div. 3'5.) The office of the information is that of a complaint, and it was called the complaint in the Revised Statutes. It is the basis of all future pro- ceedings before the magistrate and the foundation for his jurisdiction. (McKelvey v. Marsh, 63 App. Div. 396, 398 ; People ex rel. Sampson v. Dunning, 113 App. Div. 35, 39.) In the court of special sessions it parr forms the same office that an indictment performs in a court of record, and, while it is not expected to be drawn with the technical accuracy of PEOCEEDIjSTGS I^ CRIMIISTAL ACTIONS. 53T an indictment, it should state with sufficiency accuracy the crime charged, that the defendant may know the exact offense which it is claimed he has committed and be enabled to prepare his defense to meet the charge. (People V. Olmsted, 74 Hun, 323, 26 N. Y. Supp. 818; People v. Hicks, 15 Barb. 153; People ex rel. Sandman v. Tuthill, 79 App. Div. 24; People ex rel. Lewensohn v. Wyati, 39 Misc. 458 ; People v. Pillion 78 Hun, 74.) It should allege the time of the commission of the offense, not only that he may prepare his defense, but also, in case a subsequent charge is brought against him for the same offense, that he may use it as a plea in bar. (People v. Stocking, 60 Barb. 573 ; People v. Olmsted, 74 Hun, 323.) If the information is defective in failing to designate the crime charged it will not be aided by the warrant, as the defendant is to be tried upon the information, and the only office of. the warrant is to bring the defendant into court. (Id.) While the statute does not expressly require that an information should be made upon oath, that requirement is nevertheless necessarily implied. (People ex rel. Livingston v. Wyatt, 186 N. Y. 383.) And while the information need not be as full and positive in its statement of facts as is requisite in a deposition, still it cannot rest wholly on information and belief, and facts enough must be stated to show that the complainant is acting in good faith and that he has reasonable grounds to believe that a crime has been committed by some person named or described. (Id. ; see People v. Cramer, 22 App. Div. 189; Blodgett v. Race, 18 Hun, 132; Cook's Annotated Crim. Code, p. 84.) It may be conceded that there is nothing in the statute expressly requiring that the information shall be in writing, or that, where an arrest is made without a warrant, there shall be a formal written informa- tion. (See People v. Zaher, 44 Misc. 632, affd., 103 App. Div. 594.) But an information in the form of a deposition in such case is necessarily required by implication from the provisions of the Code relating to the arraignment of a prisoner and holding him for examination. (People ex rel- Farley v. Crane, 94 App. Div. 397. See People v. James, 11 App Div. 609. See Forms of Informations, ISTos. 46-84, inclusive.) § 2. Depositions. The next step in the proceedings is the taking of the depositions of the prosecutor and his witnesses as prescribed in sections 148 and 149 of the Code of Criminal Procedure. Depositions are the authority for the summons or warrant; and the magistrate must be satisfied therefrom that the crime complained of has been committed, and that there is reasonable ground to believe that the 538 CEIMINAL ACTIONS AND PEOCEEDINGS. defendant has committed it, before issuing the summons or warrant of arrest. (Code Crim. Pro., § 150; People ex rel. Livingstone v. \Wyaii, 186 N. Y. 383 ; People ex rel Hegeman v. Corrigcm, 129 App. Div. 62 ; People ex rel. Perkins v. Moss, 187 N, Y. 410; Cook's Annotated Criminal Code, p. 90.) It is not necessary that the evidence before the magistrate in the form of depositions should be conclusive in order to authorize the issuing of the summons or warrant or even such as to satisfy the magistrate beyond a reasonable doubt. (Pratt v. Bogardus, 49 Barb, 89, 94; Bmith v. Bell & Fyfe Foundry Co., 127 App. Div. 278; Krauskopf v. Tollman, 32 App. Div. 273.) But if it fails to establish, or to tend to establish, some fact essential to the existence of the crime charged, the magistrate will be wholly without jurisdiction io issue a summons or warrant, and if a summons or warrant is issued in such case, all proceedings under it will be absolutely void. {Hewitt v. Newhurger, 141 N. Y. 538; People ex rel. Perkins v. Moss, 187 N. Y. 410.) Although the statute provides that " the sittings of every court within this State shall be public, and every citizen may freely attend the same, except " as therein stated (Judiciary Law, § 4), this does not compel a magistrate to admit the public when he entertains an information and application for the issue of a warrant. He is not then holding a " court " within the meaning of the statute, and the proceeding is not a " court." (People ex rel. Kenney v. Cornell, 6 Misc. 568.) § 3. Summons or warrant. Under the present practice, a magistrate after the presentation of an information and the taking of depositions, issues either a summons or a warrant of arrest. If the magistrate be satisfied, from the depositions, that the crime complained of has been committed, and the crime charged is one of which a court of special sessions has exclusive jurisdiction or is one of the offenses enumerated in section fifty-six of the Code of Criminal Procedure, and the person charged with the commission of the crime is a citizen of the Stat© and a resident of the city or town where the information is laid, or if the charge be against a child accused of an offense of the grade of or under section 2186 of the Penal Law per- mitted to be tried as a misdemeanor or an offense for which such child can be found guilty of juvenile delinquency, and in any other case in which the magistrate has power to commit children as provided by law, the magistrate may, in his discretion, instead of issuing a warrant as here- inafter provided, issue a summons which shall be substantially in the following form : PEOCEEDINGS m CKIMINAL ACTIONS. 539 (Jourtj Oomity of j City or town of In the Name of the People of the State of New York: To Complaint having been made this day by that you (here briefly state the nature of offense in regard to which complaint is made), you are hereby summoned to appear before me (here insert title of magistrate issuing summons), at (location of court) on the day of , 19. ., at o'clock .... M., to the end that an investigation may be made of said complaint; and upon your failure to appear at the time and place herein mentioned, you are liable to a fine of not exceeding twenty-five dollars. Dated, at , the day of (Here insert o£Scial title of magistrate) Upon said summons shall be, indorsed the name of the complainant and of the person summoned and also a brief description of the offense complained of. A record shall be kept of the issuance and disposition of each summons in the same manner as in proceedings under which a ■warrant is issued. Such summons may be served by the complainant, or by a peace officer, or by any other person designated by the magistrate. Upon the return of the summons the rhagistrate shall inquire and investigate into the subject matter of the complaint in the same manner as if defendant were brought before the magistrate upon a warrant of arrest. If a person summoned does not appear, such failure to appear shall constitute a contempt, which the magistrate is empowered to punish by a fine of not exceeding twenty-five dollars. If the magistrate be satisfied from the depositions that the crime charged has been committed and, that there is reasonable ground to believe that the defendant has committed it, and if the case is one that does not come within the provisions relative to the issuing of a summons, he must issue a warrant of arrest. If a summons has been issued, and the person summoned fails to appear, and the magistrate determines that there is reasonable ground therefor, a warrant of arrest may be issued. (Code Crim. Pro., § 150.) The general form of the warrant is given in the statute (Id., § 151), and in Form !N"o. 9, post. It must contain the name or description of the defendant ; a statement of an offense in respect to which the magistrate has authority to issue the warrant ; the time when and place where it was issued; must be signed by the magistrate with the name of his office (Code Crim. Pro., § 152) ; and be directed to the peace officer (Id., § 153) ; or, in a proper case, as specified in sections 155 or 156. It is never necessary to state in the warrant the evidence by which the charge is to be supported. It is sufficient to recite the accusation. 540 CKIMINAL ACTIONS AND PEOCEEDINGS. {People V. McLeod, 1 Hill, 377; Pratt v. Bogardus, 49 Barb. 87.) The defendant is not to be tried upon the warrant but upon the information, and the warrant will have fulfilled its office when it has brought the defendant into court. That is its only function. {People v. Olmsted, 74 Hun, 323; People ex ret. Gimn v. Webster, 75 Id. 278.) § 4. Execution of warrant. If the warrant is to be executed in a county other than that of the magistrate issuing it, it should be indorsed as prescribed in section 156 (see Form No. 11), on proof made of the handwriting of the magistrate who issued it as required by section 157. (Fox v. Barry, 87 App. Div. 291.) This proof may be in the form of an affidavit as in Form No. 10. Failure to procure the indorsement of the warrant until after the arrest is not, however, a jurisdictional defect. {People v. Hamer (1912), 75 .Misc. 399, 135 N. Y. Supp. 529.) The warrant will be executed by the proper peace officer (see Code Crim. Pro., §§ 153, 154), who, if the crime charged in the warrant be a felony (see Penal Law, § 2), must take the defendant before the magis- trate who issued the warrant, or, in case the magistrate is unable to act, before some other magistrate of the same county as provided in section 164. (See McCarg v. Burr, 106 App. Div. 275, 280.) If the crime alleged in the warrant is a misdemeanor, and the defendant be arrested in another county, the officer must, upon being required by the defendant, take him before a magistrate of that county, who must admit the defend- ant to bail for his appearance before the magistrate who issued the war- rant, and take bail from him accordingly. (Code Crim. Pro., §§ 158, 159.) The defendant must in all cases be taken before the magistrate without unnecessary delay, and he may give bail at any hour of the day or night. (Id., § 165.) Sections 550-554 of the Code of Criminal Procedure should be con- sulted in respect to taking bail, and sections 167-178 of that act in respect to arrests by officers under a warrant. (See Cook's Annotated Criminal Code.) The officer must make return of his proceedings under the warrant. (See Forms Nos. 12-14.) § 5. Arrest without warrant. In the preceding pages the steps necessary to obtain a warrant for the arrest of a person charged with crime and to bring him before the magis- trate have been considered. The are cases in which a peace officer may. PROCEEDINGS IN CEIMINAL ACTIONS. 541 without a warrant, arrest a person and take him before a magistrate to be dealt with accoring to law. (Code Crim. Pro., §§ 177-182. See Cook's Criminal Code, p. 100.) So in a proper case a person, not an officer, may arrest another for crime and take him before a magistrate or deliver him to a peace officer. (Id., §§ 183-185. See Cook's Criminal Codo, p. 104; Grinnell v. Weston, 95 App. Div. 454, 457.) There must always be a sufficient ground for an arrest without a. warrant. A police officer is not justified in making an arrest without a warrant merely because the person arrested was acting in a suspicious manner. (Phillips v. Leary, 114 App. Div. 871.) When the defendant is taken before the magistrate under an arrest with- out a warrant, a written information in the form of a deposition should be filed unless waived, or, unless the examination is to be proceeded with at once. If the examination is to be adjourned, and the defendant is to be committed pending the examination, a proper information In writing must be filed by the magistrate to give him jurisdiction to issue the com- mitment. So if the examination be entered upon by consent without a formal information in writing, and without adjournment, if the defend- ant is to be committed pending an adjournment of the examination or tc await trial or the action of the grand jury, there must be as the basis for such commitment a deposition or other evidence, not oral and depend- ing upon the recollection of the magistrate, but in writing, and tending to show that the prisoner has committed a crime. (People ex rel. Farley V. Crane, 94 App. Div. 397.) § 6. Defendant to be informed of charge and of right to counsel. The first duty of the magistrate, when the defendant is brought before him under arrest, either with or without warrant, is to inform him of the charge against him and his right to the aid of counsel in every stage of the proceedings. (Code Crim. Pro., § 188. See Cook's Annotated Criminal Code, p. 107.) This section is merely a codification of the common law rule (People v. Molineaux, 168 N. Y. 331), and is in terms applicable only to proceedings prosecuted by indictment (People v. Cooh, 45 Hun, 36; People v. Oiles, 12 App. Div. 495; People v. Burns, 19 Misc. 680), but the rule is applied to proceedings upon a coroner's inquest convened to inquire into a crime for which a person is under arrest, or formally accused, and is called upon to testify (People v. Molineux, 168 N. Y. 331), but not otherwise. (People v. Strollo, 191 N. Y. 42.) Not only must the defendant be informed of his right to counsel, but he must also have the opportunity to procure counsel prescribed by section 189 of the Code of Criminal Procedure, even though it requires an 642 CEIMINAL ACTIONS AND PEOCEEDINGS. adjournment of the examinatioiu (See Cook's Annotated Criminal' Code, p. 109.) • § 7. Waiver of examinatioiu Upon the appearance of counsel, or after waiting a reasonable time therefor, the magistrate must proceed to examine the case unless the defendant waives examination and elects to give bail, in which case the magistrate must admit the defendant to bail if the crime is bailable. (Code Crim. Pro., § 190. See Sutherland v. St. Lawrence County, 101 App, Div. 299. See also, Cobles Annotated Criminal Code, p. 109.) § 8. Adjournment. The examination must be completed at one session unless the magis- trate for good cause shown adjourns it (Code Crim. Pro., § 191), and, commits the defendant for examination, or discharges him from custody, upon his giving bail to appear during the examination, or upon a deposit of money to make sure of his appearance at the time to which the examination is adjourned. (Id., § 192. See Sutherland v. St. Lawrence County, 101 App. Div. 299; and see Form No. 33.) If an adjournment is had and bail is not given or money deposited in lieu of bail, a warrant of commitment for examination must be made in the form prescribed by section 193. > , , , ; § 9. Reading of depositions and examination of witnesses. At the examination the magistrate must in the first place read to the defendant the depositions of the witnesses examined on the taking of the information, and if the defendant requests it, or elects to have the examination, must summon for cross-examination the witnesses so examined if in the county, and issue subpoenas for additional witnesses required by the prosecutor or the defendant. (Code Crim. Pro., § 194.) The witnesses must be examined in the presence of the defendant and may be cross-examined in his behalf. (Id., § 195.) This is a constitutional right. (People v. Billis, 58 Misc. 150. See also. Cook's Annotated Criminal Code, p. 111.) . After the defendant is given the opportunity of making a statement, as stated in the following section, the magistrate must proceed to swear and examine any witnesses produced by the defendant (Code Crim. Pro., § 201), and may keep the witnesses apart (Id., § 202), and may exclude from the examinations all persons except those specified in section 203. , jThe testimony given by each witness must be reduced to writing, as a PKOCEEDINGS IN CRIMINAL ACTIQJ^S. 543 deposition, by the magistrate, or under tis direction, and authenticated as provided in section 204. (See Form No. 24.) The magistrate or his clerk must keep the depositions taken on the information or on the examination and the statement of the defendant, if apy, until they are returned to the proper court; and must not permit any person to inspect them except the persons named in section 205; but if the defendant is held to answer the charge, must, on payment of .the legal fees, furnish to the defendant or his counsel, within two days after demand, a copy of the depositions and statement, or permit either of them to take a copy. (Code Crim. Pro., § 206; Cook's Annotated Criminal Code, p. 115.) ^ IQ. Statement by defendant. "When the evidence on the part of ; the people is closed the magistrate must inform the defendant of his right to make a statement as required by section 196, and if the right is waived, must make a note of it as prescribed in section 197. (See Form No. 20.) If the defendant elects to make a statement, the magistrate must proceed to take it in writing, without oath, as prescribed in section 198. ;, (See Form No. 21.) The statement must then be read to the defendant and corrections and additions made until it is made conformable to what he declares to be the truth. (Code Crim. Pro., § 199.) It must then be reduced to writing and authenticated as provided in secition 200. (See Form No. 22.) § 11. Discharge or commitment of defendant. If on the hearing of the proofs and th^ istatement of the defendant, if he has made one, it appears either that a crime has not been committed, or that there is not sufficient cause to believe the defendant guilty thereof, the magistrate must order the defendant to be discharged, as directed in pection 207. (See Forms No^. 26, 26 and. 30. ) In such case a. discharge of the defendant is a legal right. (People ex rel. Brewing Co. v. Lyman, 53 App. Div. 470.) If, however, it appear from the. examination that a crime has been committed and that there is sufficient cause to believe the defendant guilty thereof, the magistrate must, in like manner, indorse on the depositions and statement, an order, signed by him, to the follow- ing effect: "It appearing to me by the within depositions (and state- ment, if any), that the crime therein mentioned (or any other crime, according to the fact, stating generally the nature t&ereof), has been committed, and that there is sufficient cause to believe the within named 4- B. guilty thereof, I order that he be held to answer the same." (Code 644 CKIMIN"AL ACTIONS AND PKOCEEDINGS. Crim. Pro., § 208. See Form JSTo. 27.) If the crime is not bailable, there should be added to the above indorsement the following words, or words to the same effect : " and that he be committed to the sheriff of the county of " [or in the city and county of New York, " to the keeper of the city prison of the city of New York." ] (Code Crim Pro., § 209. See Form No. 28.) If the crime be bailable, and bail be taken by the magistrate, the following words, or words to the same effect, must be added to the indorsement mentioned in section 208 : " and I have admitted him to bail to answer, by the undertaking hereto annexed." (Code Crim. Pro., § 210. See Form No. 29.) The authority of a magistrate to commit, can only be exercised if it appear (1) that a crime has been committed, and (2) that there is suffi- cient cause to believe the defendant guilty upon the proofs ; and unless it so appears he is without jurisdiction to commit the defendant. He has no arbitrary power. (People ex rel. Bungart v. Wells, 57 App. Div. 140; Matter of Henry, 13 Misc. 735.) The defendant may ascertain on habeas corpus whether there was such evidence (Id.) ; and in case the informa- tion laid before the magistrate furnished no legal evidence of the com- mission of a crime by the defendant, he is not obliged to await an examination before the magistrate, but may waive the provisions of the statute for his benefit and immediately sue out a writ of habeas corpus and have the legality of his detention under arrest inquired into. {People ex rel. Perkins v. Moss, 187 N. Y. 411.) A committing magistrate need not exact the full measure of proof necessary to procure a conviction, and is obliged to hold one accused of crime if there be " reasonable ground to believe him guilty." {People ex rel. Willett v. Quinlan, 150 App. Div. 813, 135 N. Y. Supp. 477. See also Cook's Annotated Criminal Code, p. 117.) § 12. Bail. If the crime with which the defendant is charged is bailable, and the defendant is admitted to bail, but bail has not been taken, the order of commitment indorsed on the depositions and statements must contain the directions as to bail required by section 212 in addition to the requirements of section 208. (See Form No. 31.) If the crime charged is not bailable, or if the defendant is admitted to bail and bail has not been taken, the magistrate must make out a commit- ment, signed by him, with his name or office, to the effect specified in section 214, and deliver it, with the defendant, to the officer to whom he is committed, or if that officer be not present, to a peace officer, who must immediately deliver the defendant into the proper custody, together PKOCEEDINGS IN CKIMINAL ACTIONS. 545 with the commitment. (Code Crim. Pro., §§ 213, 214; Cook's Annotated Criminal Code, p. 119.) § 13. Undertaking for witnesses to appear. On holding the defendant to answer, the magistrate may take from each of the material witnesses examined before him on the part of the people, a written undertaking, to the effect that he will appear and testify at the court to which the depositions and statement are to be sent, or that he will forfeit the sum of $100. (Id., § 215. See Form No. 36. ) This section does not expressly require, or authorize the magistrate to require, that a witness, not deemed to be 'an accomplice of the defendant, to give an undertaking with sureties. An undertaking, without sureties is a« com- pliance with the statute. (People ex rel. Troy v. Pettit, 19 Misc. 280.) But where the magistrate is satisfied by proof on oath that there is reason to believe that any material witness examined before him is an accom- plice in the commission of the crime charged, he may order the witness to enter into a written undertaking, with such sureties, and in such sum as he may deem proper, for his appearance to testify at the court to which the depositions and statement are to be sent. (Code Crim. Pro., § 216. See Form No. 35.) Children under the age of sixteen years, when witnesses, may be com- mitted as providedby sections 486 and 487 of the Penal Law, subject to the order of the trial court. (Code Crim. Pro., § 217.) A witness who refuses to enter into the undertaking required by the magistrate will be committed to prison until he complies or is discharged. (Code Crim. Pro., § 218. See Cook's Annotated Criminal Code, p. 121.) § 14. Miscellaneous matters. The statute provides for the conditional examination of witnesses (Code Crim. Pro., § 219) ; requires the keeping of a " justice's criminal docket," and prescribes the manner in which it shall be kept ; requires the magis- trate to return the depositions, statement, and other matters (Id. § 221) ; and requires that every recognizance taken by any court, or by any magistrate, coroner or other officer, to appear and answer at any court, and the complaint, inquisition, affidavits, and other papers upon which such recognizance is founded, shall be filed in the office of the clerk of the court at which the party is thereby recognized to appear, within ten days after the same is so taken. (Id., § 221-a. See Cook's Annotated Criminal Code, p. 123.) The further proceedings are not within the jurisdiction of the magis- trate, as such, and need not be considered here. 35 ^46 CEIMINAL ACTIONS AND PKOOEEDINGS. CHAPTEE III. ' PROCEEDINGS IN COOETS OF SPECIAI, SESSIONS AND POLICE COUETS. Section 1. Jurisdiction of courts of special sessions. 2. Removal of cases. ' 3. Reading of charge and plea of defendant. i 4. Jury. ' I . , 5. Punisliment. ., j 6. Acquittal. 7. Certificate of conviction. 8. Suspension of sentence; 1 1 - ' 9. Probation officers. 10. Procuring attendance of witnesses. 11. Punishing jurors tor non-attendance. 12. Bail. ■ '■■■■ ^' - 13. Fees of justices and constables. 14. Special sessions in New York City. § 1. Jurisdiction of courts of special sessions. Subject to the power of removal provided for in chapter 1 of title 6. of part 1 of the Code of Crinainal Procedure, Courts of Special Sessions, except in the city and county of New York and the city of Albany, hay^ in the first instance exclusive jurisdiction to hear and determine the charges of misdemeanor committed within , their respective counties which are enumerated in section 56 of jtjhat ^Rt. (See, Cook's Annotated Criminal Code, p. 39.) ;,,,,, - , Courts of Special Sessions have also exclusive jurisdiction to try and determine, according to law, all complaints for violations of sections 1221, 1912 and 1913 of the Penal Lay7. , (Code Crim. Pro., § 56-a.) The offenses so referred to are intoxication in a public place (Penal Law,. § 1221) ; procuring liqiior for persons to whom sale is forbidden by the Liquor Tax Law (Id., § 1912) and the employment by a common carrier of a person addicted to intoxication. (Id., § 1913.) A Court of Special Sessions, having jurisdiction in the place where any of the crimes specified in section 56 of the Code of Criminal Pro- cedure is committed has jurisdiction to try and determine a complaint for such a crime, and to impose the punishment prescribed, upon conviction, iimless the defendant obtains the certificate and gives the bail mentioned in section 57 of that act. (Code Crim Pro., § 59.) A Court of Special Sessions is a court of limited jurisdiction with the powers prescribed by the statute. If a justice of the peace, having juris- PEOCEEDINGS IN COUETS OF SPECIAL SESSIONS 547 diction to issue a warrant for the arrest of a person who has committed in another town a misdemeanor which a Court ' of Special Sessions has jurisdiction to try, makes the warrant returnable before himself, instead of before a magistrate of the town, where' the 'offense was committed, and a'ssumes to try, convict and sentence the defendant to imprisonment, disre- garding the objections of the defendant to the jurisdiction of the court, all his acts under the warrant are without jurisdiction and void, and render him liable to the defendant in an action for false imprisonment. (McCarg v.Burr, 106 App. Div. 275, 186 IST. Y. 467-.) A Court of Special Sessions has jurisdiction to try a case of petit larceny when a first offense, although the information, does not charge the crime to have been committed as a first offense. {People v. Johnson, 112 App. Div. 812.) The statute provides specially as to the jurisdiction of the Courts of "Special Sessions in the city of Brooklyn (Code Crim. Pro., § 60) ; in the city of Oswego (Id., § 61) ; in the city of New York (Id., §§ 64, 64-a) ; and in the city of Albany (Id., §§ 68, 68-a.) : Police justices have such jurisdiction, and such only, as is specially conferred upon them by statute. The courts held by police justices are called Police Courts, and Courts of SpeciaV Sessions are also called Police Courts, and are so designated in different parts of the Code. (Id., § 74.) > Unless provision is otherwise made by law, a Court of Special Sessions must be held by one justice of the peace of the town or city in which the same is held. (Id., § 62.) ' The general provisions of the Code should also be kept in mind in respect to the subject of jurisdiction, namely, that no person can bo punished for a crime except upon a legal conviction in a court having jurisdiction thereof (Id., § 3) ; and thait crimes must be prosecuted by indictment except as stated in section 4 of that act, one of the exceptions being " such crimes as are hereinafter or in special statutes specified as cognizable by courts of special sessions and police courts." § 2. Removal of cases. When a person is brought before a magistrate charged with a crime triable only by the magistrate sitting as a Court of Special Sessions, it is the duty of the magistrate to inform the defendant of his right to apply to the county judge of the county or to any justice of the Supreme Court for a certificate that it is reasonable that such charge be prosecuted by indictment, and fixing the sum in which the defendant shall give bail to appear before the grand jury ; and of his right to an adjournment to 548 CKIMINAL ACTIONS AJ^D PEOCEEDIlfGS. • make such application. (See Code Grim. Pro., §§ 57, 58. See Cook's Annotated Criminal Code, p. 46.) If the defendant asks that his case be presented to the grand jury the proceedings must be adjourned for not less than five nor more than ten days. (Id., § 58.) The defendant has an absolute right to such adjournment for the purpose of making an application for the certificate. {People V. Crowie, 88 Hun, 498, 34 N. Y. Supp, 888; People v. Barry, 16 App. Div. 462.) Both the right to an adjournment, and the right to apply for a certificate that it is reasonable that the charge should be prosecuted by indictment, are substantial rights and do not rest in the discretion of the magistrate. (Id., People o. Freileweh, 11 App. Div. 409.) The application to the county judge or to a justice of the Supreme Court ' may be based upon an affidavit stating the grounds of the application. (See Form No. 114.) At least three days' notice of the time and place of the application for the certificate must be given to the complainant or to the district attorney of the county. (Code Crim. Pro., § 57. See Form No. 113.) If the officer to whom the application is made deems it " reasonable " (see People v. Butts, 121 App. Div. 226, 227), that the charge be prose- cuted by indictment, he will grant the certificate and fix the sum in which the defendant shall give bail to appear before the grand jury. (See Form No. 115.) The granting of the certificate is largely discretionary, and the reasons which would justify it must be something more than a preference of the defendant for a jury trial. Facts must be brought to the attention of the judge to whom the application is made tending to show that the case is of an exceptional character, and that for some special reason the defendant cannot have a fair trial in the Court of Special Sessions, or that there are exceptional features in the case which render it desirable and proper that the action should be tried before a jury rather than by a Court of Special Sessions. (See People v. Levy, 24 Misc., 469, 53 N. Y. Supp. 643 ; People v. Wade, 26 Misc. 585 ; People v. Rosenberg, 59 Misc. 342.) If the certificate is granted, on filing it with the magistrate, and giving the bail as therein specified, all proceedings before the magistrate shall be stayed; and he shall, within five days thereafter, make a return to the district attorney of the county of all proceedings had before him upon the charge, together with such certificate and the undertaking given by the defendant thereon, and the district attorney shall present such charge to the grand jury. (Code Crim. Pro., § 57.) PEOCEEDmGS IN COUKTS OF SPECIAL SESSIONS 549 If the certificate is not filed with the magistrate on or before the adjourned day and bail given as therein prescribed, the magistrate must proceed with the trial. (Id., § 58.) § 3. Reading of charge and plea of defendant. When the defendant is brought before the magistrate upon a warrant issued upon the information of the prosecutor and depositions of his witnesses, if any, the first proceeding then to be had is the " arraignment," that is, the reading of the charge to the defendant and his pleading thereto. (See Code Crim. Pro., § 699. See Cook's Annotated Criminal Code, p. 424.) The requirements of section 699 of the Criminal Code cannot be waived. (^People ex rel. Hall v. Munson, 83 Misc. 308.) The practice and procedure in the taking of the information and depositions and the issuing of the warrant have been noticed in a preceding article. When the de- fendant on being before the magistrate, requests a trial by a Court of Special Sessions, the preliminary examination of the case is dispensed with. (Id., § 732.) The justice sits as a Court of Special Sessions when the defendant is brought before him, but does not act as a court when he receives the information and issues the warrant. {People ex rel. Kenney v. Cornell, 6 Misc. 568.) He holds a Court of Special Sessions commencing with and including the arraignment, down to and including the rendering of judgment. The magistrate should be careful to inform the defendant of every right to which he is entitled, and especially of his right to apply for a certificate that it is reasonable that the charge against him be prosecuted by indictment as required by section 58. It is to be presumed that the magistrate informed the defendant of his right to the aid of counsel in every stage of the proceedings when brought before him upon arrest, as required by section 188 ; it is, however, advisable for the court to inform the defendant of the right and allow him time to procure counsel, and have the facts relating thereto noted in his minutes. The minutes of the justice should show that all the statutory provisions have been strictly complied with. The defendant may plead the same pleas as upon an indictment as provided in section 332. His pleas must be oral and entered upon the minutes of the court. (Code Crim. Pro., § 700.) Sections 332 to 342 inclusive apply as far as may be to proceedings in all Courts of Special Sessions or Police Courts. (Id., § 62.) In making the application the word " information " should be deemed substituted for the word " indictment " used in the statute. 550 CKIMINAL ACTIONS AND PKOCEEDINGS. There are three kinds of pleas to an indictment : (1) A plea of guilty; (2) a plea pf not guilty; and (3) a plea of a former, judgment of cofr viction or acquittal of the crime charged, which may be pleaded eithe? with or without the plea of not guilty. (Code Crim. Pro., § 332.) The plea must be entered in substantially the following form : ;; (1) If the defendant plead guilty to the crime charged in the indict- ment, " the defendant pleads that he is guilty." (2) If he pleads guilty to any lesser crime than that charged in the indictment, " the defendant pleads guilty to the crime of " (naming it). (3) If he pleads not quilty, " the defendant pleads not guilty." (4) If he pleads a former conviction or acquittal, " the defendant pleads that he ha^S already been convicted (or acquitted as the case may be) of the crime charged in this indictment, by the judgment of the court of ; (naming it) rendered at (naming the place) on the day of " (Id., §334.) A plea of guilty can only be put in by the defendant himself in open court, except upon indictment against a corporation, in which case it may be put in by counsel. (Id., § 335.) The court may in its discretion, at any time before judgment on a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted'. (Id., § 337.) '; The plea of not guilty is a' denial of every material allegation in the indictment (Id., § 338) ; and all matters of fact, tending to establish a defense, other than a plea of former judgment of conviction or acquittal, may be given in evidence under the plea of not guilty. (Id., § 339.) ' If the defendant refuses to answer an indictment by demurrer or plea; a i)lea of not guilty must be entered. (Id., § 342.) § 4. Jury. Upon a plea other than a plea of guilty, if the defendant do not demand a trial by jury, the court must proceed to try the issue. (Id., § 701.) Before the court hears any testimony upon the trial, the defends ant may demand a trial by jury. (Id., § 702.) When a jury trial is demanded a jury must be summoned as provided in sections 703 and 704 (see Form No. 116), and a proper return made by the officer who summoned the jurors. (See Form No. 117.) The jury for the trial of the issue will then be drawn as directed in sections 705. 706, and 708. (See Cook's Annotated Criminal Code, p. 428.) The same challenges may be taken by either party, to the panel of jurors, or to an individual juror as on the trial of an indictment for a ■ PROCEEDINGS m COURTS OF SPECIAL SESSIONS 551 BQisdemeanor, so far as applicable'.; and the challenge must in all cases be tried by the court. (Code Ci-im., Pro., '§ 707.) The provisions of the statute in respect to challenges are contained in -sections 359 to 387, inclusive, of the Code of Criminal Procedure, and are made applicable to Courts of Special Sessions by section ,62 of thatiact. A challenge to the panel is not of as frequent occurrence as a challenge to individual jurors, and is governed by sections 360 to 368 inclusive. ■, .Before a juror is called, the defendant must be informed by the court, or under its direction, that if he intend to challenge an individual juror, he must do so v^hen the juror appears and before he is sworn. (Code Crim. Pro., § 369.) The challenge to the individual juror may be peremptory or for cause. (Id., § 370.) But five peremptory challenges are allowed to each party. (Id., § 373.) , When six jurors appear and are accepted they form the jury (Id., § 710), and the court must then swear the jury in the form prescribed. (Id., § 711.) After the jury are sworn they must sit together and hear the proofs and allegations of the parties, which must be delivered in public and in the presence of the defendant. (Id., § 712.) The trial should proceed in the order prescribed by section 388 of the Code of Criminal Procedure, which, with the sections following, including the section relating to polling the jury (§ 450), apply to Courts of Special Sessions, (Id., § 62.) ■ The jury, may either decide in court or retire; and if they do not immediately agree an officer must be sworn to attend them, as prescribed in section 713, where the form of oath is given. When the jury have agreed on their verdict they must deliver it publicly to the court, and the court must enter it on its minutes. Id., § 714.) The jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict, unless, for some cause within the meaning of sections 428 and 429, the court sooner discharges them. (Id., §715.) The causes which will justify the court in discharging the jury before agreement are as follows: (1) Upon the -occurrence of some injury or casualty affecting the defendant, the jury or some of them, or the court, rendering it inexpedient to keep them longer together; or (2) when after the lapse of such time as shall seem reasonable to the court, they shall declare themselves unable to agree upon a verdict; or (3) when, with the leave of the court, the public prosecutor and the counsel for the defend- ant consent to such discharge. (Id., § 428.) Whenever the jury is dis- charged without a verdict, the reason for the discharge must be entered pn the minutes. (Id., § 429.) The court may proceed again to the trial. 552 CKIMINAL ACTIONS AND PEOCEEDINGS. in the same manner as upon the first trial, and so on until a verdict is rendered. (Id., § 716. See Cook's Annotated Criminal Code, p. 430.) § 5. Punishment. When the defendant pleads guilty, or is convicted either by the court or by a jury, the court must render judgment thereon, of fine or imprison- ment, or both as the case may require; but the fine cannot exceed fifty dollars, nor the imprisonment six months. (Id., § 717. See Cook's Annotated Criminal Code, p. 430.) A Court of Special Sessions is a court of limited jurisdiction, and the limit of its povrer to punish is prescribed by the section last cited. (People V. De Graff, 56 Misc. 429 ; People v. Carter, 48 Hun, 165 ; People ex rel. Siohes v. Risley, 38 Hun, 280 ; People ex. rel. Kane v. Sloane, 98 App. Div. 450, 4:b?>; People v. Schermerhom, 59 Misc. 146 ; People v. Henschel, 35 1^. Y. St. Eep. 275.) If the fine imposed is for a greater sum than a Court of Special Sessions is authorized to impose, the sentence is absolutely void and the judgment entered thereon unauthorized. (Id.) But a judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied; specifying the extent of the im- prisonment, which cannot exceed one day for every one dollar of the fine. (Code Crim. Pro., § 718.) If the judgment is to pay a fine and that the defendant be imprisoned until it is paid, the court upon imposing sentence may direct that the execution of the sentence of imprisonment be suspended for such period of time, and on such terms and conditions as it shall determine, and shall place such defendant on probation under the charge and supervision of a pro- bation ofiieer during such suspension, provided, however, that upon pay- ment of the fine being made, the judgment shall be satisfied and the probation cease. The court may, upon consent of the defendant and as one of the conditions of suspension of sentence, or of probation, require him while under suspended sentence or on probation to make restitution or reparation to the aggrieved parties in an amount to be fixed by the court, not to exceed the actual losses or damages caused by his offense; or the court may require the defendant while under suspension of sentence or on probation to support his children. (Code Crim. Pro., § 483, subd. 2.) § 6. Acquittal. If the defendant is acquitted either by the court or jury he must be immediately discharged ; and if the court certify or the jury find that the prosecution was malicious or without probable cause the court must order the prosecutor to pay the costs of the proceedings, or to give satisfactory PKOCEEDINGS IN COUKTS OF SPECIAL SESSIOJ^S 553 security, by a written undertaking, with one or more sureties, to pay the same to the county within thirty days after the trial. (Id., § 719. For form of the order see Form No. 118.) If the prosecutor do not pay the costs or give security therefor the court may enter judgment against him as provided in section 720. (See Form No. 119.) § 7. Certificate of conviction. When a conviction is had upon a plea of guilty, or upon a trial, the court must make and sign a certificate in substantially the form pre- scribed by section 721, making the change directed by section 722 if the defendant has pleaded guilty. The certificate must be filed in the office of the county clerk within twenty days after the conviction, and the certificate or a certified copy thereof is conclusive evidence of the facts stated therein. (Code Crim. Pro., §§ 723, 724.) The judgment must be executed by the sheriff of the county, or by a constable, marshal or police- man of the city, village or town in which the conviction is had, upon re- ceiving a copy of the certificate certified by the court or the county clerk. (Id., 725. See Cook's Anotated Criminal Code, pp. 433-436.) The requirement that the certificate shall briefly designate the offense is substantially and sufficiently complied with by stating the crime according to its statutory definition. (People v. Johnson, 110 N. Y. 134; People ex rel. Allen v. Ragan, 170 N. Y. 46 ; Matter of Bartholomew, 106 App. Div. 371; Peple ex rel. Bidwell v. Pitts, 111 App. Div. 319; People ex rel. Dinsmore v. Keeper of Penitentiary, 125 App. Div. 137 ; People ex rel. Ryan v. Webster, 86 Sun, 68.) A substantial complianca with the statute in the certificate of conviction is all that is required. (People ex rel. CooTc v. Pitts, 111 App. Div. 321.) But the statute is not complied with where the certificate does not designate the offense, and merely states the conviction as for a violation of a specified section of the Penal Law that refers to a number of different or distinct acts, some of which are or niay be lawful, some of which are felonies, and others the subject of merely civil penalties. (People ex rel. Allen v. liagan, 170 N. Y. 46.) The statue does not require that any judgment should be entered in the minutes of the court. There is but one mode of rendering judgment and that is by pronouncing sentence, and there is but one record of the judgment and that is the certificate of the sentence pronounced. (People ex. rel. Cool v. Smith, 28 N, Y. St. Eep. 306, 308.) The certified copy of the certificate under which the defendant is held is a commitment. (People ex rel. Dinsmore v. Keeper of Penitentiary, 125 App. Div. 137.) A failure to state in the certificate the time, or the place, or the person 554 CKIMINAL ACTIONS AND PEOCEEDINGS. from whom a larceny was committed, ot that it was committed in the county, does not render the certificate defective. (People ex rel. Sullivan y. Sloan, 39 App. Div. 265 ; People ex rel. Bidwell v. Pitts, HI App. Div 319.) § 8. Suspension of sentence. , Section 2188 of the Penal Law provides as follows: " The several sections of this chapter which declare certain crimes to he punishable as therein mentioned devolve a duty upon the court or magistrate authorized to pass sentence to determine and impose the punishment prescribed; hut a court or magistrate authorized to impose sentence upon conviction of any crime not punishable by death or life imprisonment, or in any case of juvenile delinquency, or in any other proceeding of a criminal nature, whether the defendant has previously been convicted of a crime or not, may suspend sentence or impose sentence and suspend the execution of the whole or a part of the judgment and may in either case place the defendant on probation in accordance with the provisions of section eleven-a of the code of criminal procedure. No provision of this ehaptOi.* or of the code of criminal procedure or of any general statute shall be construed to prevent the court or magistrate authorized to impose sentence from exercising discretion to suspend sen- tence or suspend the execution of the whole or a part of the judgment or to place on probation as hereinabove provided. If sentence shall have been suspended or, if sentence shall have been imposed and execution of the whole or a part of the judgment shall have been suspended, at any time thereafter within the longest period for which a defendant might have been committed in the first instance or, if the defendant is on pro- bation and the period of probation exceeds the period for which the de- fendant might have been sentenced, at any time while the defendant re- mains on probation, the court or magistrate having jurisdiction may issue process for the rearrest of the defendant, and when such defendant is arraigned may, if sentence shall have been suspended, impose any sentence pr make any commitment which might have been imposed or made at the time of conviction or may, if sentence shall have been imposed and execu- tion of the whole or a part of the judgment suspended, revoke the order sus- pending execution of judgment and order executed the judgment or the part thereof the execution of which shall have been suspended or may modify the judgment so as to provide for the imposition of any punishj men which might have been imposed at the time of conviction." The power to suspend sentence existed and was recognized and exer- PKOCEEDlNGS IN COUETS OtF SPECIAL SESSIONS 555 cised at common law from the earliest times. (See People ex rel. Forsyth ■v/Court of Sessions^ 14:1 N.Y:i88,29S.) ' . Section 470-a of the Code of Criminal Procedure provides that : " If, after a plea or verdict of guilty or after a verdict against the defendant upon a plea of former conviction or acquittal, sentence shall have been suspended, the court may impose any sentence or make any commit- ment which might have been imposed or made at the time of conviction. If sentence shall have been imposed and execution of the whole or a part of the judgment suspended, the court may revoke the order suspending exe- cution of judgment and order executed the judgment or the part thereof the execution of which shall have been suspended or may modify the judgment so as to provide for the imposition of any punishment which might have been imposed at the time of conviction. " The court may impose sentence or order judgment executed with or without modification as hereinabove provided at any time after such suspension of sentence or suspension of execution of judgment within the longest period for which the defendant might have been sentenced or, if the defendant is on probation and the period of probation exceeds the period for which the defendant might have been sentenced, at any time while the defendant remains on probation ; b^ut not after the expiration of such period or periods, unless the defendant shall have been convicted of another crime committed during such period. Provided, however, that the imprisonment directed by the judgment shall not be suspended or interrupted after such imprisonment shall h^ve commenced." And section 470-b provides : " If judgment be not pronounced as in the last section provided, nevertheless: " 1. For the purpose of ,ind,ictment and, conviction of a second offense, the plea or verdict and suspension of sentence or suspension of execution of the whole or a part of the judgment after sentence shall be regarded as a conviction, and shall be pleaded according to the fact " 2. The said plea or verdict and suspension of sentence or suspension of execution of the whole or a part of the judgment after sentence may be proved in the manner provided by statute for proving a conviction for the purpose of affecting the weight of the defendant's testimony in any action or proceeding, civil or criminal." § 9. Probation officers. ■''■ The statute authorizes tM appointment of probation officers by the magistrates of the courts having original jurisdiction of criminal actions 'and prescribes the duties of the probation officers. (Code Crlm. Pro., § 11-a. See Cook's Annotated Criminal Code; p. 17.) 656 CRIMINAL ACTIONS AND PEOCEEDINGS. § 10. Procuring attendance of witnesses. The court may issue subpoenas for witnesses as provided in section 608 and punish disobedience thereof as provided in section 619. (Code Crim. Pro,, § 729.) The statute prescribes the form of the subpoena. (Id,, § 612. See Form No. 106.) If a chattel, books, papers or documents is required, a direction to the following effect must be countained in the subpoena : " and you are required to bring with you the following " [describe intelligbly the chattels, books, papers or documents required.] (Code Crim. Pro., § 613. See Form No. 107. The subpoena will be served by a peace officer who will make a written return of service, (Code Crim. Pro., § 614. See Perm No. 108.) Disobedience to a subpoena, or a refusal to be sworn or to testify, may be punished by the court or magistrate as for a criminal contempt in the manner provided in the Judiciary Law. (Code Crim. Pro., § 619.) No fees are payable to a witness for his services or attendance in a Court of Special Sessions. (Id., § 731.) § 11. Punishing jurors for nonattendance. If a person summoned as a juror fail to appear, he may be punished by a fine not exceeding five dollars imposed by the court, by an order entered in his minutes. The order is deemed a judgment, in all respects, in favor of the poor of the town or city, (Code Crim. Pro,, § 730.) No fees are payable to a juror for his services or attendance in a Court of Special Sessions. (Id., § 731.) § 12. Bail. During the time allowed to the defendant to give bail, and until judg- ment is given, he may be continued in the custody of the oflacer, or com- mitted to the jail of the county to answer the charge as the magistrate may direct. (Code Crim. Pro., § 733.) A commitment will be in the form given in section 734, and executed as directed in section 735, The statute prescribes when, how and by whom bail may be taken, the form of the undertaking, and the effect and consequences of a failure of the defendant to appear. (Id., §§ 736-740.) § 13. Fees of justices and constables. The fees of a justice of the peace in a criminal case are specified in section 740-a of the Code of Criminal Procedure, and the fees of a con- stable in a criminal case are stated in section 740-b of that act. (See Cook's Annotated Criminal Code, pp. 439-441.) PKOCEEDINGS IST COUETS OF SPECIAL SESSIONS 557 § 14. Special sessions in New York City. The offenses over wMch Courts of Special Sessions in the city of New York have jurisdiction are enumerated in the Greater New York Charter (Greater N. Y. Charter, § 1409 ; Code Crim. Pro., § 64. See Cook's Anno- tated Criminal Code, pp. 51-52) ; but the legislative authority conferred upon the court with reference to the arraignment of the defendant, the plea and the trial is that contained in the Code of Criminal Procedure regulating the authority of Special Sessions generally throughout the State {People v. Harbor, 100 App. Div. 317, 322; Code Crim. Pro., § 741), with the exceptions mentioned in section 741 of that act. (Sea Cook's Annotated Criminal Code, pp. 442-445.) For the purpose of the administration of criminal justice the city is divided into two divisions (Greater N. Y. Charter, § 1390), and the Court of Special Sessions of either of the two divisions must be held by three of the justices of the court. (Id., § 1408.) The justices of the first and second divisions respectively appoint a clerk and deputy clerk of the court and necessary officers and attendants. (Id., § 1407.) The justices of the courts are magistrates, and have and exercise all the jurisdiction and powers conferred by law upon magistrates which are not inconsistent with the charter. (Id., § 1411.) There are certain pro- visions in the charter of the city relating to methods of procedure in Courts of Special Sessions designed to conform them to those in the Courts of General Sessions. (Id., §§ 1410, 1412.) All trials in these courts are without a jury. (Id., § 1410.) This is not in violation of the Constitution, as a person accused of a misdemeanor has no constitutional right to a trial by jury. {People ex rel Murray v. Justices, 74 N. Y. 406 ; People ex rel. Comaford v. Butcher, 83 N, Y. 240 ; People v. Stein, 80 App. Div. 357; People ex rel. Bums v. Flaherty, 119 App. Div. 462.) All sessions of the court are attended by the district attorney of the county in person or by an assistant (Greater N.,Y. Charter, § 1415) ; and all criminal actions in these courts, except in the parts devoted to the trial of children under sixteen years of age and known as Children's Courts, must be prosecuted by information made and signed by the district attorney in substantially the form prescribed by section 742 of the Code of Criminal Procedure. The duties of the district attorney are defined by section 743 of that act. (See People v. Spier, 120 App. Div. 786.) The court may send its process and other mandates in any matter of which it has jurisdiction into any county of the State for service or execution in like manner and with the same force and effect as similar process ou mandates of the Court of General Sessions of the city and county of New York, and of County Courts in counties other than New York, as pro- 558 CEIMINAL ACTIONS AND PEOCEEDINGS. vided by the Code ; and particularly to compel the attendance of wit- nesses, to order the conditional examination of witnesses, without the State, to inquire into the insanity of a defendant and to dismiss the prosecu- tion of an action in like manner as the prosecution of actions by indict- ment may be dismissed conformably to the prbvisions of title twelve of part four of the Code of Criminal Procedure. (Code Crim. Pro., § 64.) The clerk of the court signs the subpoenas for witnesses and the certifi- cate of the judgment, and enters all the proceedings of the court and the sentences upon conviction in a book of minutes, and, when necessary,' certifies the proceedings of the court. (Id., § 744.) No transcript of a conviction had in this court need be certified or filed.; but a copy of the minutes of the conviction, certified by the clerk, is conclusive evidence of the facts contained therein. (Id., § 746^) The statute prescribes the procedure on appeals from Courts of Special Sessions. (Id., §§ 749-772. See Cook's Annotated Criminal Code, pp. 446-455.) PART IV. THE CODE OF CEIMINAL PKOOEDUEE WITH POEMS. (ExpLANATOET NoTE. — The following pages contain such portions only of the Code of Criminal Procedure as are applicable, in whole or in part, to criminal actions or proceedings in Courts of Special Sessions or Police Courts, or before magistrates. These provisions form a part of chapter 442 of the laws of 1881, entitled " An Act to establish a Code of Criminal Procedure," and, as here given, embrace all amendments thereto, including those passed in 1909. The divisions into parts, titles, chapters and sections are those of that act. Forms adapted to the pro- cedure prescribed are placed immediately after the "Code provisions.) The People of the State of New York, represented in Senate and Assembly, do enaot as follows: AN ACT TO ESTABLISH A CODE OF CRIMINAL PKOOEDUEE. FBGLIMINABY PROVISIONS. Section 1. Title of the Code. 2. Divisions of the Code. 3. No person punishable but on legal conviction. 4. Crimes, how prosecuted. 5. Criminal action defined. 6. Parties to a criminal action. 7. The party prosecuted known as defendant. 8. Bights of defendant in a criminal action. 9. Second prosecution for the same crime prohibited. 10. No person to be a witness against himself in a criminal action or to be unnecessarily restrained. 10a. Searching prisoners. 10b. Prisoners brought into court without habeas corpus. 10c. Disposition of fines imposed for violation of laws relating to the game of policy. § 1. Title of the Code. This act shall be known as the Code of Criminal Procedure of the State of New York. § 2. Divisions o^ the Code. This Code is divided into six parts. The first relates to the courts having original jurisdiction in criminal action; The second relates to the prevention of crime ; The third relates to the judicial proceedings for the removal of public officers by impeachment or otherwise; The fourth relates to the proceedings in criminal actions prosecuted by indictment; The fifth relates to proceedings in special sessions and police courts; The sixth relates to special proceedings of a criminal nature. 559 560 CODE OF CEIMINAL PEOCEDUEE. § 3. No person punishable but on legal conviction. No person can be punished for a crime except upon legal conviction in a court having jurisdicticu iliereof. § 4. Crimes, how prosecuted. A crime must be prosecuted by indictment, except: 1. Where proceedings are had for the removal of a civil ofScer of the state on impeachment by the assembly for willful or corrupt misconduct in office. 2. Where proceedings are had for the removal of justices of the peace, police justices and justices of justices' courts and their clerks; 3. A crime arising in the militia when in actual service, and in the land and naval forces in time of war, or which this state may keep with the consent of congress in time of peace; 4. Such crimes as are hereinafter or in special statutes specified as cognizable by courts of special sessions and police courts. § 5. Criminal action define The proceeding, by which a party charged with a crime is accused and brought to trial and punishment, is known as a criminal action. § 5a. Criminal and civil prosecutions not merged. Where the violation of a right admits of a criminal and also of a civil prosecution, the one is not merged in the other. § 6. Parties to a criminal action. A criminal action is prosecuted in the name of the people of the State of New York, as plaintiffs, against the party charged with crime. § 7. The party prosecuted known as defendant The party prosecuted in a criminal action is designated in this code as the defendant. § 7a. Preference in trial or hearing. A criminal action, including an appeal or other proceeding in a criminal causS, is entitled, under the direction of the court, to preference in the trial or hearing thereof, over all civil actions and special proceedings, except as prescribed in section one hun- dred and thirty-nine of the civil practice act. § 8. Sights of defendant in a criminal action. In a criminal action the defendant is entitled: 1. To a speedy and public trial; 2. To be allowed counsel as in civil actions, or he may appear and defend in person and with counsel; and 3. To produce witnesses in his behalf, and to be confronted with the witnesses against him in the presence of the court, except that (a) where the charge has been prelim- inarily examined before a magistrate, and the testimony reduced by him to the form of a deposition in the presence of the defendant, who has, either in person or by counsel, cross-examined, or had an opportunity to cross-examine, the witness; or (b) where the testimony of a witness on the part of the people, has been taken according to the provisions of section two hundred and nineteen of this code, the deposition of the witness may be read upon its being satisfactorily shown to the court that he is dead or insane, or cannot with due diligence be found in the state; or (c) where the defend- ant is charged with a violation of the provisions of the tenement house law, being chapter sixty-one of the consolidated laws, as it now exists or shall be amended, the certificate under his hand and official seal of the commissioner or other head of the department charged with the enforcement of said chapter that the house at or in respect to which such crime is charged was at the time of the alleged crime recorded and registered in said department as a tenement house in accordance with the pro- visions of said tenement house law shall be presumptive evidence that such house is a tenement house within the meaning of such chapter. § 9. Second prosecution for the same crime prohibited. No person can be subjected to a second prosecution for a crime for which he has once been prosecuted, and duly convicted or acquitted. FKELIMINARY PROVISIONS. 561 § 10. No person to be a witness against himself, or unnecessarily restrained. No person can be compelled in a criminal action to be a witness against himself, nor can a person charged with a crime be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge. § 10a. [Added, 1909.] Searching prisoners. Any magistrate who shall commit any person, charged with any offense, to prison, or by whom any vagrant or disorderly person shall be committed, may cause such person to be searched for the purpose of discovering any property he may have; and if any property be found, the same may be taken and applied to the support of sucli person while in confinement. § 10b. [Added, 1909.] Prisoners brought into court without habeas corpus. When it shall be necessary for any purpose, to bring any prisoner confined in a county jail, before the supreme court, a county court or a court of general sessions, which may be sitting in such county, such court may by order, and without issuing any writ of habeas corpus, or other process, direct such prisoner to be brought before them accordingly. § 10c. Order to bring up prisoner to testify as witness. 1. A court of record, other than a justice's court of a city, or a judge of such a court, or a justice of the supreme court, has power, upon the application of a party to a criminal action or proceeding pending therein, to make an order for the purpose of bringing before the court, a prisoner, detained in jail or prison within the state, to testify as a witness in the action or proceeding in behalf of the applicant. 2. Sections four hundred and sixteen to four hundred and nineteen of the civil practice act apply to such an application and the proceedings thereon. 3. Any officer upon whom an order granted as prescribed in this section, is served, must obey the same, according to the exigency thereof, and make a return accordingly. If he refuses or neglects so to do, he forfeits to the people, if the order was granted upon the application of the attorney-general or a district attorney, or, in any other case, to the party on whose application the order was granted, the sum of five hundred dollars. But where the prisoner is confined under a sentence to death, a return to that effect is a sufficient obedience to the order, without producing him. 4. An order to bring up a prisoner sentenced to death may be granted by the appel- late divisions of the supreme court in any department, or by the presiding justice thereof, upon such terms and conditions, and under such regulations as such appellate division or presiding justice prescribes, upon the application of or notice to the district attorney of the county in which the attendance of the prisoner is desired and upon proof that such prisoner is a necessary and material witness in a criminal action then pending and that the interest of public justice require his attendance. § lOd. [Added, 1909.] Disposition of fines imposed for -violation of laws relating to the game of policy. All fines, penalties and forfeitures imposed and collected under the provisions of every act passed, or which may be passed, relating to or affecting the game of policy, in every case where the prosecution shall be instituted or conducted, by a society incorporated and having as an object the prevention or suppression of the game of policy, must be paid on demand to such society. § 10e. Abatement of action or proceeding not affected by failure of term. When a term of court fails or is adjourned, or the time or place of holding the same is changed, a criminal action, special proceeding, writ, process, recognizance, or other proceeding, returnable, or to be heard or tried, at that term, is not abated, discon- tinued, or rendered void thereby ; but all persons are bound to appear, and all proceed- ings must be had, at the time and place to which the term is adjourned or changed, or, if it fails, at the next term, with like effect as if the term was held, as originally appointed. § lOf. Continuance of trial or hearing beyond term. Where the trial or hearing of an issue of fact, joined in a criminal action or special proceeding, has been commenced at a term of a couri of record, it may, notwithstand- ing the expiration of the time appointed for the term to continue, be continued to the completion thereof; including, if the cause is tried by a jury, all proceedinsrs taken therein until the actual discharge nf the iurv. or, if it is tri'-l by the court without a jury, until it is finally submitted for a dec'-ion upon the merits. 562 CODE OF CI^IMINALPi^pCEDUKE. PART L Of ConETS Having OBiaiNAi, JtraisDicnoN in Cbiminai, Actions. TITLE I. OF COUBTS HAVING OEIQINAI, JDKISDICTION IN QENEEAL. Section 11. Of the courts of original criminal jurisdiction. 11a. Probation officers. § II. Of tlie courts of original criminal jurisdiction. The following are the courts of justice in this state having original jurisdiction ot criminal actions : 1. The court for the trial of impeacements. , 2. The supreme court. 3. The county courts in counties other, than New York. 4. The city courts of Utica and Oswego. 5. The mayor's court of the city of Hudson. 6. The court of general sessions in the city and county of New York. 7. The courts of special sessions. 8. The police courts. The courts of special sessions and police courts are deemed inferior courts of recor^ within the section of the constitution which provides for the removal of justices of the peace and judges, or justices of inferior courts not of record, and their clerks, by such county, city or state courts as are designated by law; but for no other purpose. § 11a. [Amended, 1903, 1904, 1905, 1908, 1909, 1910.] Probation officer; appointment; duties; power; procednre; transfers. 1. The magistrates of the courts having original jurisdiction of criminal actions in the state, may from time to time appoint a person or persons to perform the duties of probation officer or officers as hereinafter described, within the jurisdiction of the courts of such magistrates and under the direction of such magistrates, to hold such office during the pleasure of the magistrate or magistrates malting such appointment and of their successors. Such probation officer or officers may be chosen from among the officers of a society for the prevention of cruelty to children or of any charitable or benevolent institution, society or association now or hereafter duly incorporated under the laws of this state, or be reputable private citizens, male or female. The appointment of a probation officer must be made in writing and entered on the records of the court of the magistrate or magistrates making such appointment, and copies of the order of appointment must be delivered to the officer so appointed and filed with the state probation commission. , Any officer or memljer of the police force of any city or incorporated village who may be detailed to do duty in such courts, or any constable or peace officer, may be appointed as probation officer upon the order of any magistrate as herein provided. Whenever in a city of the first class members of the police force have been appointed probation officers as hereinabove provided and are serving as probation officers under the direction of a majority of the members of a board of city magistrates, the commissioner of police upon the request of any other magistrate of such board shall detail to such other magistrate a member of the police force who may COURTS HAVING ORIGINAL JURISDICTION. 563 be appointed by sucli' magistrate as a, probation officer. No probation officer appointed under tbe provisions of this section shall receive compensation for his services as such probation officer until allowed by proper ordinance or resolution, as hereinafter pre- scribed, but this shall not be construed to deprive any officer or member of the police force, or any constable or peace officer, appointed probation officer as herein provided, from receiving the salary or compensation attached to his said official employment. The board of estimate and apportionment in the city of New fork and the appropriate municipal board or body of any other city or village, or the board of supervisors of any county, may in their discretion determine whether probation officers, not detailed from other branches of the public service, shall receive a salary, and if they shall so determine, they may fix the amount thereof and provide for its payment, and they may also provide for the necessary expenses of probation officers. Whenever provision is made for the payment of a salary by the appropriate municipal board or body in any city or village to a probation officer who is to be attached to a court presided over by a magistrate sitting alone, the appointment of such probation officer shall be made by that magistrate. Whenever provision is made for the payment of a salary by the appropriate municipal board or body in any city or village to a probation officer who is to serve in a court wherein several magistrates are sitting tof,ether, or in rotation, or in a court or courts wherein there is a board of magistrates, the appointment of such probation officer shall be made by all the magistrates jointly, or by a majority thereof, except that when a probation officer is to serve in a division of a court in which there is a board of ttagisti'ates the appointment shall be made by all the magis- trates of such board jointly, or by a majority thereof. Whenever provision is made for the payment of a salary to a probation officer by the board of supervisors of any county, such probation officer shall be appointed by the county judge, or if there be more than one county judge, by the cotinty judges jointly, of such county, and such probation officer shall serve in the supreme and county courts of that county, and in any other courts in the county at the request of the magistrates holding such other courts, except the courts of criminal jurisdiction Of cities of the first and second class. 2. Duties. Every probation officer, when sft directed by the court, or by a magistrate of the court, in which he is serviiig, shall inquire into the antecedents, character, and circumstances of any person or persons accused within the jurisdiction of such court, and into the mitigating or aggravating circumstances of the offense of such person, and shall report thereon in writing to such court or magistrate. The term " proba- tioner " shall mean a person placed on probation. It shall be the duty of every probation officer to furnish to all persons .placed on probation under his supervision a statement of the period and conditions of their probation, and to instruct them concerning the same; to keep informed concerning their conduct and condition; to aid and encourage them by friendly advice and admonition, and by such other measures, not inconsistent with the conditions imposed by the court or magistrate, as may seem most suitable, to bring about improvement in their conduct and condition; to report in writing at least monthly concerning their conduct and condition to the court having jurisdiction over such probationers, or to a magistrate thereof; to keep records of their work; to keep accurate and complete accounts- of all moneys collected from probationers, to give receipts therefor and to make at least monthly returns thereof; to perform such other duties in connection with such probationers as the court or magistrate may direct; and to make such reports to the state probation commission as the commission may require. Any probation officer may act as parole officer for any state penal or reformatory institution when so requested by the authorities thereof, and when requested by the county judge shall act as parole officer over persons released on parole under section nine hundred and ten. 3. Powers. Every probation officer may require such reports by probationers under his care as are reasonable or necessary and not inconsistent with the conditions imposed by the court or magistrate. Every probation officer shall have, as to persons placed on probation under his care, the powers of a peace officer. 4. Methods of procedure. When any court suspends sentence and places a defendant on probation it shall determine the conditions and period of probation, which period of probation shall not exceed, in the cases of children, their eighteenth birthday; in tlie case of any other defendant convicted of an offense less than a felony, two years; and in the case of any other defendant convicted of a felony, five years. The conditions of probation shall be such as the court shall in its discretion prescribe, and may include among other conditions any or several of the following: That the probationer (a) shall indulge in no unlawful, disorderly, injurious or vicious habits; (b) shall avoid places or persons of disreputable or harmful character; (c) shall report to the probation officer as directed by the court or probation officer; (d) shall permit the 564 CODE or CKIMmAL PKOCEDUKE. probation oflticer to visit him in a reasonable manner at bis place of abode or else- where; (e) shall answer any reasonable inquiries on the part of the probation officer concerning his conduct or condition; (f) shall, if a child of compulsory school age, attend school; (g) shall, if an adult, or if a child but not required to attend school, ■nork faithfully at suitable employment; (h) shall remain or reside within a specified place or locality; (i) shall abstain for a reasonable period from the use of alcoholic beverages, if the use of the same contributed to his offense; (j) shall pay in one or several sums a fine imposed at the time of being placed on probation; (k) shall make reparation or restitution to the aggrieved parties for actual damages or losses caused by his offense; and (I) shall support his wife or children. The court or a magistrate thereof may modify the conditions and the period of probation; may in case of viola- tion of the probationary conditions issue a warrant for the arrest of the probationer; and may at any time discharge the probationer; and in case of violation of the probationary conditions, the court may impose any penalties which it might have imposed before placing the defendant on probation, provided that, if committed, he be committed to an institution authorized by law to receive commitments for .the offense of which he was originally convicted, and of persons of his age at the time of his commitment. If a probationer without permission disappears from oversight, or departs from the jurisdiction of the court, the time during which he keeps his where- abouts hidden or remains away from, the jurisdiction of the court may be added to the original period of probation. 5. Transfers. A court or magistrate may transfer a probationer from the super- vision of one probation officer to that of another probation officer, and such transfer shall be reported by the court or magistrate, to bpth of such probation officers and to the probationer, and a record of the transfer shall be filed with, the records of the case. Whenever a probationer resides in a county " other than the county in which he has been convicted and placed on probation, or whenevei: a probationer desires to remove to a county other than that in which, 'he has .been placed on probation, and it seems likely that such removal will pjomote his welfare and will not make him a menace or public charge to such other county, the court placing him on probation, or a magistrate thereof, may transfer him to a salaried probation officer of the city or county to which the probationer is to move, provided such probation officer sends the court or magistrate desiring to make such transfer a written statement that he will exercise supervision over the probationer, and provided such statement is approved in writing by the magistrate of the court to which such probation officer is attached. Such probation officer shall report concerning the conduct and condition of such probationer to the court or magistrate making the transfer. (Amended by L. 1909, ch. 482, and L. 1910, ch. 610, in effect Sept. 1, 1910.) § 111). Jurisdiction of courts with respect to yiolations of law, relating to intoxicating liquors. All proceedings instituted for the punishment of any violations of the provisions of article one hundred and thirteen of the penal law shall be prosecuted by indictment by the grand jury of the county in which the crime was committed, and by trial in a coifft of record having jurisdiction for the trial of crimes of the grade of felony; except that any magistrate of the county in which such violations occur shall have jurisdiction, and shall examine on oath the informant and prosecutor and any witnesses which he may produce and shall issue subpoenas for such witnesses as may be named by such prosecutor or informant and examine them on oath and shall issue a warrant of arrest upon such information and depositions, and shall examine the case as provided by chapter two of title three of this code; except that where the defendant is required to be taken before the magistrate who issued the warrant, he may, if that magistrate be absent or unable to act, be taken before any magistrate in the county in which the magistrate before whom the warrant is returnable resides. If it shall appear upon any such examination that a crime consisting of a violation of such article of the penal law has been committed, and that there is sufficient cause to believe that the person or persons charged with such crime are guilty thereof, such magistrate shall admit such person or persons to bail in an amount to be fixed by the magistrate, and in default of bail shall commit him or them to the sheriff of the county or if in the city of New York to the keeper of the city prison of such city. A magistrate before whom any person shall be brought; charged with a violation of the provisions of such article of the penal law, shall immediately notify the district attorney of the county in writing of the fact of such arrest and the disposition of the case, stating the name and residence of each person accused, the date when held for trial or discharged, the name, residence and address of the complainant, and of each witness sworn in support of the charge in case a preliminary examination shall have been had. COUKTS HAVING OEIGINAL JUKISDIOTION. 565 TITLE IV. OP THE CITY COUBTS. CHAPTER I. THE CITT COUBTS. Section 31. City courts. 32. By whom held. § 31. City courts. The city courts having original criminal jurisdiction, arc the recorder's court of Utica, the recorder's court of Oswego, and the mayor's court of Hudson. Their juris- diction in criminal matters is defined hy special statutes, and continues as thus defined. § 32. By whom held. These courts for the exercise of their criminal jurisdiction must he held by the following officers : 1. The city courts of Utica and Oswego by the recorders of those cities respectively. 2. The mayor's court of Hudson, by the mayor of that city. TITLE VI. OP THE COTJETS OP SPECIAL SESSIONS AND FOUCE COUBTS. Chafteb I. The special sessions except in the cities of New York and Albany. II. The special sessions in the city and county of New York. III. The special sessions of the city of Albany. IV. The police courts. CHAPTER I. THE SPECIAL SESSIONS, EXCEPT IN THE CITIES OP NEW TOBK AND .4I,BANT. Section 56. Jurisdiction of courts of special sessions. 57. Removing case to grand jury. 58. Procedure in such cases. 59. Trial and punishment of certain crimes. 60. Special sessions in Brooklyn. 61. Id.; in Oswego. 62. By whom held. 63. Recorder of a city to hold court. § 56. Jurisdiction of courts of special sessions. Subject to the power of removal provided for in this chapter, courts of special sessions, except in the city and county of New York and the city of Albany, have in the first instance exclusive jurisdiction to hear and determine charges of misdemeanor committed within their respective counties, as follows: 1. Petit larceny, charged as a first offense. 2. Assault in the third degree. 566 CODE OE OKIMIl^AL PEOCEDUKE. , 3. Racing, running or testing the speed of any animal witiiin one mile of the place where any court is held. 4. Wrongfully severing any produce or article from the freehold, not amounting to grand larceny. 5. Selling poisonous substances not labeled as required by law. 6. Wrongfully and maliciously removing^ defacing or cutting down monuments or marked trees. 7. Wrongfully destroying or removing mile-stones, mile-boards or guide-boards, or altering or defacing any inscription thereon. 8. Wrongfully destroying any publitS or toll-gate, or turn-pike gate. 9. [Am'd., 1890.] Intoxication of a person engaged in running any locomotive engine upon any railroad, or while acting as a conductor of a car or train of cars, on any such railroad, or a misdemeanor committed by any person on a railroad car or train. 10. Setting up or drawing unauthorized lotteries, or printing and publishing an account, of any such illegal lottery, game or device, or selling lottery tickets, or pro- curing them to be sold, or offering for sale or distributing any property depending upon, any lottery, or for selling any chances iii any lottery contrary to the provisions of lawi 11. Unlawfully running, trotting or pacing horses or any other animals. 12. Making or selling slung-shot or any similar weapon. ,, 13. Unlawfully disclosing the finding of an indictment. 14. Unlawfully bringing to or carrying letters from any county jail, penitentiary or state .prison. 15. Unlawfully destroying or injuring any Hiill-dam or. embankment necessary for the support of such dam. 16. [Am'd., 1905.] Unlawfully injuring any telegraph or telephone wire, post, pier, abutment, materials or property belonging to any line of telegraph or telephone, wilfully giving a false alarm of fire, or wilfully tampering, meddling or interfering with any station or box of any fire alarm telegraph or telephone system, or injuring any box, station, wires, poles, supports and appliances connected with or forming a part of any fire alarm telegraph or telephone system. 17. Unlawfully counterfeiting any representation, likeness, similitude or copy of a private stamp, wrapper or label of any mechanic or manufacturer. 18. [Am'd., 1889.] Malicious trespass on lands, trees or timber, or injuring any fruit or ornamental or shade trees or vines. 19. Maliciously breaking or lowering any canal walls, or wantonly opening any lock- gate, or destroying any bridge, or otherwise unlawfully injuring such canal or bridge. 20. Unlawfully counterfeiting or defacing marks on packages. 21. Unlawfully setting fire to wood or fallow land, or allowing the same to extend to lands of others, or unlawfully refusing to extinguish any fire. 22. Unlawfully or negligently cutting out, altering or defacing any mark on any logs, timber, wood or plank floating in any waters of this state, or lying on the banks or shores of any such waters, or at any saw-mills, or on any island where the qame may have drifted. 23. Unlawfully frequenting or attending a steamboat landing, railroad depot, church, banking institution, broker's office, place of public amusement, auction room, store, auction sale or private residence, passenger car, hotel, restaurant, or any other gather- ing of people. 24. Unlawfully taking and carrying away the oysters of another,, lawfully planted ijpon the bed of a river, bay, sound or other waters within the jurisdiction of this state. 25. Kemoving property out of the county, with intent to prevent the same from being levied upon by execution, or secretihg, assigning, conveying or otherwise disposing of property with intent to defraud any creditor, or to prevent the property being made liable for the payment of debts, or for receiving property with such intent. COtJETS HAVING ORIGINAL JUEISDICTIOK 567 26. [Am'd, 1901, 1902.] Driving any carriage upon any turnpike, road or high- way for the purpose of running horses; or wilfully and without authority riding a bicycle upon a sidewalk or foot-path constructed, maintained, or allowed to remain for the exclusive use of pedestrians, in any street where a sidepath for bicycles is maintained outside of an incorporated city or village; or for driving or operating any automobile or motor vehicle upon any plank road, turnpike or public highway at an unlawful rate of speed. 26a. [Added, 1918.] Eeckless driving in violation of subdivision one of section fourteen of the general highway traffic law. 27. [Am'd, 1905, 1909.] Cruelty to animals or children or offenses of children under section twenty-one hundred and eighty-six of the penal law. 28. Cheating at games. 29. Winning or losing at any game or play, or by any bet, as much as twenty-five dollars within twenty-four hours. 30. Selling liquors in a court-house or jail contrary to law. 31. [Added, 1893.] Exposure of the person contrary to law. 32. [Am'd, 1889.] Crimes against the provisions, of existing laws for the preven- tion of wanton or malicious mischief. 33. [Am'd, 1889.] When a complaint is made to, or a warrant is issued by, a committing magistrate for a violation of the laws relating to excise and the regulation of taverns, inns or hotels, or for unlawfully selling or giving to any Indian spirituous liquors or intoxicating drinks. 34. [Am'd, 1889.] Frauds on hotel, inn, tavern and boarding-house keepers. 35. [Am'd, 1896, 1906.] All violations of the provisions of the agricultural, poor and general business laws. 36. [Added, 1903, Am'd, 1909.] When a complaint is made to or a warrant is issued by a committing magistrate for a violation of the provisions of section forty- three or seven hundred and twenty of the penal law of the State of New York. 37. [Am'd, 1903.] Such other jurisdiction as is now provided by special statute or municipal ordinance authorized by statute. 38. [Am'd, 1903.] When a complaint is made to or a warrant is issued by a committing magistrate for any misdemeanor not included in the foregoing subdivisions of this section, if the accused shall elect to be tried by a court of special sessions, as; provided by section two hundred and eleven. But this subdivision shall not apply to any misdemeanor pxmishable by a fine exceeding fifty dollars, or by imprisonment exceeding six months. 39. [Added, 1906.] All violations of the law regulating the junk business and requiring persons engaged in such business to procure a license. § 56a. [Added, 1909.] Exclusive jurisdiction. Courts of special sessions shall have exclusive jurisdiction to try and determine, according to law, all complaints for violations of sections twelve hundred and twenty- one, nineteen hundred and twelve and nineteen hundred and thirteen of the penal law. § 57. [Am'd, 1909.] Removing case to grand jnry. Upon filing with the magistrate, before whom is pending a charge for any of the crimes specified in section fifty-six, a certificate of the county judge of the county, or of any justice of the supreme court, that it is reasonable that such charge be prosecuted by indictment, and fixing the sum in which the defendant' hhall give bail to appear before the grand jury; and upon the defendant giving hail, as specified in the certifi- cate, all proceedings before the magistrate shall be stayed; and he shall, within five days thereafter, make a return to the district attorney of the county of all proceedings had before him upon the charge, jtogether with such certificate and the imdertaking 568 CODE OF CEIMINAL PEOCEDUEE. given by the defendant thereon; and the district attorney shall present such charge to the grand jury; provided, however, that no such certificate shall he given except upon at least three days' notice to the complainant or to the district attorney of the county oJE the time and place for the application therefor. § 58. Iiimitation. When a person is brought before a magistrate charged with the commission of any flf the crimes mentioned in section fifty-six, and asks that his case be presented to the grand jury, the proceedings shall be adjourned for, not less than five nor more than ten days, and if on or before the adjourned day the' certificate mentioned in section flfty- seven is not filed with the magistrate before whom the charge is pending, and bail given by the defendant as therein prescribed, the magistrate shall proceed with the trial, and when the defendant is brought before the magistrate, it shall be the duty of the magistrate to inform him of his rights under section fifty-seven and this section. § 59. Trial and pnnisliinent of certain crimes. A court of special sessions having jurisdiction in the place where any of the crimes specified in section fifty-six is committed has jurisdiction to try and determine a com- plaint for such crime, and to impose the punishment prescribed upon conviction, unless the defendant obtains the certificate and gives the bail mentioned in section fifty-seven. § 60. Special sessions in Brooklyn. Subject to the power of removal provided for by sections fifty-seven and fifty-eight of this code, the courts of special sessions in the city of Broolclyn shall, in the first instance, have jurisdiction, except in case of public oflBcers and conspiracy, to try and determine all complaints made before them, or before a police magistrate, or justice of the peace, for misdemeanor committed in said city, where the term of imprisonment does not exceed one year, with or without fine, and to impose the same punishment as is authorized by statute in like cases to be infiicted by the county court of the county of Kings. Where any jury is required for the trial of any crime or misdemeanor in said courts of special sessions in the city of Brooklyn, the said court shall have power to summons as many jurors as the court may deem necessary for the trial of such action or misdemeanor. The said court of special sessions in the city of Brooklyn shall have power to take bail in a reasonable amount for all misdemeanors and shall have power to take undertakings in bail, either with or without the defendant thereon in the discretion of the said courts. All fines imposed by the said courts of special sessions in the city of Brooklyn, or by police magistrates in said city, upon defendants con- victed in said courts or by such magistrates, of crimes, misdemeanors or violations of any city ordinance of the city of Brooklyn, which are paid by such defendants so con- victed, to the sheriif of the county of Kings or to the keeper of the penitentiary of said city, shall be paid monthly by the said sheriff or said keeper, to the respective clerks of the courts in which the said fines were imposed; provided, however, that the said sheriff or keeper of the penitentiary of Kings county may, in his discretion, pay all of such fines so paid to them, or either of them, directly to the city treasurer of the city of Brooklyn. In an examination held in any criminal proceeding by a police magistrate in the city of Brooklyn, the testimony of each witness may, in the discretion of the magistrate, be taken as a deposition by the official stenographer of the court in which said magistrate holds such examination. Such minutes of the testimony, when so taken and when certified by the stenographer and by the magistrate who held such examination, shall, both with reference to such examination, and in all procedure in connection with such examination, provided for by any section of this code, not incon- sistent herewith, be regarded as actually taken down in writing by such magistrate and subscribed by the witness or witnesses at such examination. COUETS HAVING OEIGINAL JUEISDICTION. 569 § 61. Special sessions in Osxrego. The court of special sessions in the city of Oswego, where held by the recorder, has also jurisdiction over all cases of offences, crimes' against public decency, selling unwholesome provisions, cheats, breaches of the peace, disobeying the commands of officers to render assistance in criminal cases, obstructing officers in the discharge of their duties, adulterating distilled spirits, not delivering marked property, defacing marks or putting false marks on floating timber, all violations against the laws and ordinances of or applicable to the city, when such violation is a misdemeanor, and all attempts to commit any crimes herein named or referred to when such attempt is a misdemeanor. § 62. By whom held. Unless provision is otherwise made by law, a court of special sessions must be held by one justice of the peace of the town or city in which the same is held, and sections two hundred and ninety-three, two hundred and ninety-four, two hundred and ninety- five, three hundred and ten, three himdred and thirty-two, three hundred and thirty- three, three hundred and thirty-four, three hundred and thirty-five, three hundred and thirty-six, three hundred and thirty-seven, three hundred and thirty-eight, three hun- dred and thirty-nine, three hundred and forty, three hundred and forty-one, three hundred and forty-two and three hundred and fifty-nine to four hundred and fifty, both inclusive, shall apply as far as may be to proceedings in all courts of special sessions or police courts. § 63. Recorder of a city to hold conrt. A recorder of a city has power to hold a court of special sessions therein. CHAPTER II. THE SPECIAL SESSIONS IN THE CITY AI»D COUNTY OP NEW YOBE. Section 64. Jurisdiction. 64a. Exclusive jurisdiction, 65. Seal. § 64. Jurisdiction. The court of special sessions in the city of New York, within their respective divi- sions, have jurisdiction : 1. Such is conferred on them by the Greater New York charter and other existing statutes. 2. To send process and other mandates in any matter of which they have jurisdic- tion into any county of the state, for service or execution, in like manner and with the same force and effect as similar process or mandates of the court of general sessions of the city and county of New York, and of county courts in counties other than New York, as provided by the code; and particularly, to compel the attendance of witnesses to order the conditional examination of witnesses, to issue commissions for the examina- tion of witnesses without the state, to inquire into the insanity of a defendant and to dismiss the prosecution of an action in like manner as the prosecution of actions by indictment may be dismissed, conformably to the provisions of title twelve of part four of this code. § 64a. [Added, 1909.] Exclusive jurisdiction. Court of special sessions shall have exclusive jurisdiction to try and determine, according to law, all complaints for violations of section twelve hundred and twenty- one, nineteen hundred and twelve and nineteen hundred and thirteen of the penal law. 570 CODE OF CKI^HNAL PKOCEDUEE. § 65. Seal The seal heretofore provided for the courta of special sessions in said city on which is engraved the arms of the state and the words " court of special sessions of the city of New York " with the number of the division of the court, shall continue to be the seal of the court, and all process issued by said court shall be sealed with the said seal and signed by the clerk of said court. [Amended by L. 1904, chap. 563.] CHAPTER IIL THE SPECIAL SESSIONS IN THE CITY OP AT.BANT. SEonoN 68. Jurisdiction. 68a. Exclusive jurisdiction. 69. Recognizances returnable, where. 70. When persons held to trial. 71. Officers to attend. 7l Clerk. 73. Court, when and where held. § 68. Jnrisdiction. The court of special sessions in the city of Albany has jurisdiction; 1. To try and determine all cases of petit larceny charged as a first offence, and all misdemeanors, not being infamous crimes, committed within the city, when a person accused of such crime or misdemeanor demands to be tried before such court of special sessions held by the recorder of said city, instead of before a police justice; 2. To take recognizances to appear before the court at a succeeding term from per- sons charged with a crime or misdemeanor, or triable therein. 3. To impose and enforce sentence of fine or imprisonment, or both, in the discretion of the court, and all cases within its jurisdiction, upon conviction to the same extent as the county court of the county of Albany could do in like cases. 4. To punish a contempt of court in the same manner and to the same extent as the supreme court could do in like cases. 5. In eases where a jury trial is remanded by a defendant, to draw from the jury box containing the names of jurors who reside in the city of Albany, such number of names as the recorder or county judge may direct, and to require the sheriff of the county to summons the persons so drawn to appear at the time designated for trial, to impanel a jury of twelve men, to require the attendance of additional jurors and to punish a juror or witness neglecting to appear, in the same manner and to the same extent as the supreme court could do in like cases. 6. On the motion of the district attorney, to issue a warrant for the arrest of a per- son who neglects to appear agreeably to the requirements of a recognizance to appear thereat, commanding the officer executing the same to bring the party forthwith before the court, if in session, otherwise to commit him to the common jail of the county, there to remain until delivered by due course of law. § 68-a. [Added, 1909.] Esclnsive jurisdiction. Courts of special sessions shall have exclusive jurisdiction to try and determine, according to law, all complaints for violations of sections twelve hundred and twenty- one, nineteen hundred and twelve and nineteen hundred and thirteen of the penal law. COURTS HAVING ORIGINAL JURISDICTION. 571 § 69. Recognizances returnable, nrhere. Upon charges for offences triable by this court, the police magistrate or any other magistrate in the city hearing the same, shall; if ordered, take recognizances in the cases provided by law returnable at the court of special sessions; and all such recog- nizances as shall have been so taken shall be returned to and filed with the district attorney of the county of Albany. If no such recognizance be offered, the magistrate or magistrates shall commit the defendant to the common jail of the county of Albany nntil he shall be thence delivered in due course of law, and the trial of such person shall be had before the court of special sessions, except that where a police justice or other magistrate of the city has jurisdiction, the defendant may elect to be tried before such police justice or other magistrate. § 70. Wlien persons held for trial. Whenever a person is brought before a police justice or other magistrate of the city, charged with any of the following crimes, viz.: Petit larceny charged as a first offense, offenses against the laws relating to excise and the regulation of taverns, inns and hotels, offences being misdemeanors against the laws relating to gaming, assaults upon, and interference with a public officer in the discharge of his duty, and it shall appear to the magistrate that the crime has been committed and that there is suflScient cause to believe the defendant guilty thereof the magistrate must order him to be held to answer the charge before the court of special sessions. § 71. OfiScers to attend. The court of special sessions in the city of Albany must be held by the recorder of the city, with or without one or more of the justices of the peace to be associated with him. In case of the absence or inability of the recorder to act, the county judge of the county of Albany must act in his place. If the recorder and county judge are both unable, by reason of absence or other cause, to hold the court, the clerk must adjourn the court to the next following Tuesday, and continue such adjournments until the recorder or county judge attends. Not more than two officers shall be designated or appointed by the sheriff or other authority to attend the court of special sessions of the city of Albany, unless the court shall, by an order entered in its minutes, require the attend- ance of a greater number. § 72. Clerk. The county clerk of Albany county is clerk of the court of special sessions of the city of Albany, and must attend the same in person or by deputy. § 73. Court, irlien and -nrliere held. The court of special sessions of the city of Albany must be held at the city hall in the city of Albany on Tuesday of each week, and may be held and continued for such length of time as it deems proper. 572 CODE OF CKIMINAL PEOCEDUEE. CHAPTER IV. THE POLICE CODBTS. Section 74. Jurisdiction. 75. Election of justices. 76. Justice to take and file oath of office, etc. 77. Justice, how to hold office. 78. Compensation of justice. § 74. Jurisdiction. Police justices have such jurisdiction, and such only, as is specially conferred upon them by statute. The courts held by police justices are called police courts, and courts of special sessions are also called police courts, and are so designated in different parts of the code. §§ 75, 76, 77. [Repealed. Chap. 414, Laws of 1897.] § 78. Compensation of justice. A police justice cannot retain to his own use any costs or fees, but may receive for his service an annual salary, to be fixed in villages by the board of trustees, and in cities by the common council, except where the same is otherwise fixed by law; and such salary shall not be increased or decreased during his term of office. THE PKEVENTIOIf OF OEIME. 673 PART II. Of the Prevention op Cbime. TITLE I.— Of Lawful Resistance. TITLE II.— Of the Intervention of the Olficers of Justice. TITLE I. OF LAWFUL RESISTANCE. Chapter I. General Provisions respecting lawful resistance. II. Resistance by the party about to be injured. III. Resistance by other parties. CHAPTER I. general provisions respecting LAWFUL BESISTANOE. Section 79. Lawful resistance; by whom made § 79. Lawful resistance; by whom made. Lawful resistaace to the commission of a crime may be made: 1. By the party about to be injured; 2. By other parties. CHAPTER II. RESISTANCE BY THE PARTY ABOUT TO BE INJURED. Section 80. In what cases ; to what extent. § 80. In -what cases; to what extent- Resistance suflBcient to prevent the crime may be made by the party about to b* injured : 1. To prevent a crime against his person; 2. To prevent an illegal attempt by force to take or injure property in his lawful possession. CHAPTER III, RESISTANCE BY OTHER PARTIES. Section 81. In what cases. § 81. In what cases. ' Any other person, in aid or defense of the person about to be injured, may make resistance sufficient to prevent the injury. 574 CODE OF CEIMIIfAL PEOCEDUEE. TITLE II. OF THE INTEEVENTION OP THE OFFICEatS OP JUSTIOB, Chafteb I. Intervention of public officers in general. II. Security to keep the peace. III. Police in cities and villages, and their attendance at exposed places. IV. Prevention and suppression of riots. CHAPTER I. INTEEVENTION OP PUBLIC OPFICEBS IN GENEBAL, •Section 82. In what oases. 83. Persons acting in their aid, justified. § 82. In -what cases. Crimes may be prevented by the intervention of the officers of justice: 1. By requiring security to keep the peace; 2. By forming a police in cities and villages, and by requiring their attendance in exposed places; 3. By suppressing riots. 5 83. Persons acting in their aid, justified. When the officers of justice are authorized to act in the prevention of crime, other persons, who by their command act in their aid, are justified in so doing. CHAPTER II. seoubity to keep the peace. Section 84. Information of threatened crime. 85. Examination of complainant and witnesses. 86. Warrant of arrest. 87. Proceedings, on complaint being controverted. 88. Persons complained of, when to be discharged. 89. Security to keep the peace, when required. 90. Effect of giving or refusing to give security. 91. Person committed for not giving security, how discharged. 92. Undertaking to he transmitted to county court. 93. Security, when required, for assault, etc., in presence of a court or magis- trate. 94. Appearance of party bound, upon his undertaking. 95. Person bound may be discharged, if complainant does not appear. 96. Proceedings in sessions, on appearance of both parties. 97. Undertaking, when broken. 98. Undertaking, when and how to be prosecuted. 98a. Security to keep the peace by convicts. 99. Security of the peace not required except according to this chapter. § 84. Information of threatened crime. An information may be laid before any magistrate that a person has threatened to commit a crime against the person or property of another. THE PKEVENTION OF CRIME. 575 § 85. Examination of complainant and iritnesses. When the information is laid before a magistrate, he must examine on oath the com- plainant and any witnesses he may produce, and must reduce their examination to writing, and cause them to be subscribed by the parties making them. § 86. Warrant of arrest. If it appears from such examination that here is just reason to fear the commission of the crime threatened, by the person complained of, the magistrate must issue a war- rant, directed generally to the sheriff of the county, or any constable, marshal or police- man of the city or town, reciting the substance of the information, and commanding the officer forthwith to arrest the person complained of, and bring him before the magistrate. § 87. Proceedings, on complaint being controverted. When the person complained of is brought before the magistrate, if the charge be controverted, the magistrate must take testimony in relation thereto. The evidence must be reduced to writing, and subscribed by the witnesses. S 88. Person complained of, Trlien to lie discharged. If it appear that there is no just reason to fear the commission of the crime alleged to have been threatened, the person complained of must be discharged. 5 89. Security to keep the peace; when reqnired. If, however, there be just reason to fear the commission of the crime, the person complained of may be required to enter into an undertaking, in such sum, not exceed- ing one thousand dollars, as the magistrate may direct, with one or more sufficient sureties, to abide the order of the next county court of the county, held for the trial of indictment, and in the meantime to keep the peace toward the people of this state, and particularly toward the complainant. § 90. Effect of giving or refusing security. If the undertaking required by the last section be given, the party complained of must be discharged. If it is not given, the magistrate must commit him to prison, specifying in the warrant, the cause of commitment, the amount of security required, and the omision to give the same. § 91. Person committed, how discharged. If the person complained of be committed for not giving security, he may be dis- charged by any two justices of the peace of the county, or police or special justices of the city, upon giving the security. § 92. XTndertahing to be transmitted to county court. An undertaking given as provided in section eighty-nine, must be transmitted by the magistrate to the next term of the county court of the county. § 93. Security for assault, in presence of court, etc. A person who, in the presence of a court or magistrate, assaults or threatens to assault another, or to commit a crime against his person or property, or who contends with another in angry words, may be thereupon ordered by the court or magistrate, to give security as provided in section eighty-nine, or if he refuses to do so, may be com- mitted as provided in section ninety. 576 CODE OF OKIMINAL PKOCEDUEE. § 94. Appearance of party bound, etc. A person who has entered into an undertaking to keep the peace, must appear on the first day of the next term of the county court of the county. If he do not, the court may forfeit his undertaking, and order it to be prosecuted, unless his default be excused. § 95. Discharge, if complainant does not appear. If the complainant do not appear, the person complained of may be discharged, unless good cause to the contrary be shown. § 96. Proceedings in sessions, on appearance of both parties. If both parties appear, the court may hear their proofs and allegations, and may either discharge the undertaking, or require a new one, for a time not exceeding one year. § 97. IJndcrtahing, -when broken. An undertaking to keep the peace is broken, on the failure of the person complained of to appear at the county court, as provided in section ninety-four, or upon his being convicted of any crimes involving a breach of the peace. § 98. Undertaking, when and how prosecuted. Upon the district attorney producing evidence of such conviction to the county court to which the undertaking is returned, that court must order the undertaking to be prosecuted; and the district attorney must thereupon commence an action upon it in the name of the people of the state. § 98-a. [Added, 1909.] Security to keep the peace by convicts. Every court of criminal jurisdiction, before which any person shall be convicted of any criminal offence, not punishable with death or imprisonment in a state prison, shall have power, in addition to such sentence as may be prescribed or authorized by law, to require such person to give security to keep the peace, or to be of good behavior, or both, for any term not exceeding two years, or to stand committed until such security be given. But this section shall not extend to convictions for writing or publishing any libel; nor shall any such security be hereafter required by any court, upon any complaint, prosecution or conviction, for any such writing or publishing. No recog- nizance given under this section, shall be deemed to be broken, unless the principal therein be convicted of some offence amounting in judgment to law, to a breach of such recognizance. The sam-e proceedings for the collection of such recognizance when for- feited, shall be had as are prescribed in the preceding sections of this chapter, in rela- tion to recognizances to keep the peace. § 99. Security for the peace not required except according to this chapter. Security to keep the peace or be of good behavior, cannot be required, except as prescribed in this chapter. CHAPTER III. POLICE IN CITIES AND VILLAGES, AND THEIB ATTENDANCE AT EXPOSED PLACES. Section 100. Organization and regulation of the police. 101. Force to preserve the peace, at public meetings when and how ordered. § 100. Organization and regulation of the police. The orgainization and regulation of the police in the cities and villages of this state are governed by special statutes. THE PREVENTIOl^ OF CRIME. 511 § 101. Force to preserve the peace at public meetings, -when and hotr ordered. The mayor or other officer having the direction of the police in a city or village, muat order a force, sufficient to preserve the peace, to attend any public meeting, when he is satisfied that a breach of the peace is to be apprehended. CHAPTER IV. PEEVENTION AND SUPPRESSION OF BIOTS. Section 102. Powers of sheriff or other officer, in overcoming resistance to process. 103. His duty to certify to court the names of resisters and their abettors. 104. Duty of a person commanded to aid the officer. 105. When governor to order out a military force, to aid in executing process. 106. Magistrates and officers to command rioters to disperse. 107. To arrest rioters, if they do not disperse. 108. Consequences of refusal to aid the magistrates or officers. 109. Consequences of neglect or refusal of a magistrate or officer to act. 110. Proceedings, if rioters do not disperse. 111. Officers who may order out the military. 112. Commanding officers and troops to obey the order. 113. Armed force to obey orders. 114. Conduct of the troops. 115. Governor may, in certain cases, proclaim a county in a state of insur- rection. f 116. May call out the militia. 117. May revoke the proclamation. § 102. Powers of sheriff or other officer in overcoming resistance to process. When a sheriff or other public officer, authorized to execute process, has reason to apprehend that resistance is about to be made to the execution of the process, he may command as many male inhabitants of his county as he thinks proper, to assist him in overcoming the resistance, and, if necessary, in seizing, arresting and confining the resisters and their aiders and abettors, to be punished according to law. (Amended by L. 1916, ch. 353, in effect May 1. 1916.) § 103. His duty to certify to court the names of registers and their abettors. The officer must certify to the court from which the process issued the names of the resisters and their aiders and abettors, to the end that they may be proceeded against for contempt. § 104. Duty of a person commanded to aid the officer. Every person commanded by a public officer to assist him in the execution of process, as provided in section one hundred and two, who, without lawful cause, refuses or neglects to obey the command, is guilty of a misdemeanor. § 105. When governor to order out a military force to aid in executing process. (Repealed by L. 1916, ch. 553, in effect May 1, 1916.) 37 678 CODE OF CEIMINAL PEOCEDUKE. § 106, Magistrates and officers to command rioters to disperse. When persons, to the number of five or more, armed with dangerous weapons, or to the number of ten or more, whether armed or not, are unlawfully or riotously assembled in a city, village or town, the sheriff of the county and hia under sheriff and deputies, the mayor and aldermen of the city, or the supervisor of the town, or president or chief executive of the village, and the justices of the peace or the police justices of the city, village or town, or such of them as can forthwith be collected, must go among the persons assembled and command them, in the name of the people of the state, immediately to disperse. § 107. To arrest rioters, if they do not disperse. If the persons assembled do not immediately disperse, the magistrates and officers must arrest them, or cause them to be arrested, that they may be punished according to law; and for that purpose, may command the aid of all persona present or within the county. § 108. Consequences of refusal to aid the magistrates or officers. If a person so commanded to aid the magistrates or officers, neglects to do so, he is deemed one of the rioters, and is punishable accordingly. § 109. Consequences of neglect or refusal of a magistrate or officer to act. If a magistrate or officer having notice of an unlawful or riotous assembly, men- tioned in section one hundred and six, neglects to proceed to the place of assembly, or as near thereto as he can with safety, and to exercise the authority with which he is invested for suppressing the same and arresting the offenders, he is guilty of a mis- demeanor. § 110. Proceedings, if rioters do not disperse. If the persons assembled, and commanded to disperse, do not immediately disperse, any two of the magistrates or officers mentioned in section one hundred and six, may command the aid of a sufficient number of persons, and may proceed in such manner as in their judgment is necessary, to disperse the assembly and arrest the offenders. § 111. Officers who may order out the military. (Repealed by L. 1916, eh. 353, in effect May 1, 1916.) § 112. Commanding officer and troops to obey the order. (Repealed by L. 1916, ch. 353, in effect May 1, 1916.) § 113. Armed force to obey orders. (Repealed by L. 1916, eh. 353, in effect May 1, 1916.) § 114. Conduct of the troops. (Repealed by L. 1916, ch. 353, in effect May 1, 1916.) § 115. Governor may, in certain cases, proclaim a county in a state of insurrection. When the governor is satisfied that the execution of civil or criminal process has been forcibly resisted in any county, by bodies of men, or that combinations to resist the execution of process by force exist in any county, and that the power of the county has been exerted, and has not been sufficient to enable the officer having the process to execute it, he may, on the application of the officer, or of the district attorney or county THE PKEVENTION OF CRIME. 579 judge of the county, by proclamation to be published in the state paper, and in such papers in the county as he may direct, declare the county to be in a state of insurrection. § 116. After proclamation. After the proclamation mentioned in the last section, the governor may order into the service of the state such number and description of volunteer or uniform com- panies, or other militia of the state, as he deems necessary, to serve for such term, and under the command of such officer or officers as he may direct. § 117. May revoke the proclamation. The governor, when he thinks proper, may revoke the proclamation authorized by section one hundred and fifteen, or declare that it shall cease, at the time and in the manner directed by him. § 117-a. Duties of public ofScers in relation to complaints' and prosecutions for vio- lations of laws relating to intoxicating liquor; It shall be the duty of every sheriff, deputy sheriff, police officer, constable, state trooper or other peace officer having knowledge of any violation of the provisions of article one hundred and thirteen of the penal law, to immediately exercise all powers and authority vested in him as such sheriff, deputy sheriff, police officer, constable, ptate trooper or other peace officer to apprehend, arrest and prosecute any person or persons committing such violation and to immediately notify the district attorney of the county in which such violation occurs, by a statement under oath, of the facts of such violation, together with the names of all witnesses to any such violation of whom he has knowledge or whom he can discover with reasonable diligence, and it shall be the duty of such district attorney when the complaint or oath is made of such viola- tion, forthwith to cause the arrest, if said violator has not already been arrested, and attend the examination personally or by an assistant, of each person so complained of, unless a term of court with a grand jury in attendance shall be appointed to be held in such county within ten days from the time of the receipt by a district attorney of such verified complaint or unless such accused person shall have been examined before such jury and admitted to bail or committed thereon. It shall be the duty of the district attorney to prepare and present to the grand jury of the county all evidence tending to show a violation in each case within his knowledge, or reported to him pur- suant to the provisions of this section or reported to him by the verified complaint of any reputable citizen, and the said district attorney shall prosecute any person violat- ing any of the provisions of such article of the penal law and for such and every violation thereof. 580 CODE or CEIMINAL PEOCEDUKE. PART III. Op Jtjdiciai, Pboceedings foe the Removal of Public Officebs, by Impeachment, OB Othebwise. TITLE I. — Of Impeachments. TITLE II. — Of the Removal of Justices of the Peace, Police Justices, and Justices of Justices' Courts and their Clerks. TITLE II. OF THE BEMOVAL OF JUSTICES OF THE PEACE, POLICE JUSTICES, AND JUSTICES OF JUSTICES' COURTS, AND THEIB CLERKS. § 132. [Am'd. 1909.] Justices of the peace, police justices, justices of justices' courts and their clerks, removable by the appellate diTision of the supreme court. Justices of the peace and judges, and justices of inferior courts, not of record, and their clerks, may be removed, as provided by the constitution, by the appellate division _ of the supreme court. The appellate division shall have power to order the proofs upon any proceedings hereunder to be taken before a referee to be appointed by such appellate division and to certify the reasonable expenses of such referee, which amount, so certified, is hereby declared to be a charge, against the city, town or village within such justices of the peace, judge, or justice of inferior court, not of record, or clerk, exercises the duties of his office. Such court may also in its discretion require the person or persons instituting proceedings for the removal of either of the officials above named to give security, to be approved by such court, for the expenses incident to the hearing and determination thereof, in case the charges against such official are not sustained. PEOCEEDINGS IN CKIMII^AL ACTIONS. 581 PART IV. Of the Peoceedings in Criminal Actions Pbosecutbd by Indictment. TITLE I. — Of the local jurisdiction of public offenses. II. — Of the time of commencing criminal actions. Ill- — Of the information and proceedings thereon to the commitment inclusive. IV. — Of the proceedings after commitment, and before indictment. V. — Of the indictment. VI. — Of the proceedings on the indictment before trial. VII.— Of the trial. VIII. — Of the proceedings after trial before judgment. IX. — Of the judgment and execution. X. — Greneral provisions relating to punishment of crime. XI. — Of appeals. XII. — Of miscellaneous proceedings. TITLE I. OF THE LOCAIi JUBISDICTIGN OP PtTBIJC OFFENSES. Section 133. Where a person leaves this state to elude its laws. 134. When a crime is committed partly in one county and partly in another. 135. When a crime is committed on the boundary of two or more counties or within Ave hundred yards thereof. 136. Jurisdiction of crime on board a vessel. 137. Of crime committed in the state on board of any railway train, etc. 138. Indictment for libel. 139. Conviction on acquittal in another state, a bar, where the jurisdiction is concurrent. 140. Conviction or acquittal in another county, a bar, where the jurisdiction is concurrent. § 133. When a person leaves this state to elude its laws. A person who leaves this state, with intent to elude any law thereof against duelling or prize-fighting, or challenges thereto, or to do any act forbidden by such a law, or, who being a resident of this state, does an act out of it, which would be punishable as a violation of such a law, may be indicted and tried in any county of this state. § 134. When a crime is committed partly in one county and partly in another. When a crime is committed, partly in one county and partly in another, or the acts or effects thereof, constituting or requisite to the consummation of the offense, occur in two or more counties, the jurisdiction is in either county. § 135. When a crime is committed on the boundary of two or more coun- ties, or within five hundred yards thereof. When a crime is committed on the boundary of two or more counties, or within five hundred yards thereof the jurisdiction is in either county. 582 CODE OF CKIMINAL PKOCEDUEE. § 136. Jurisdiction of crime on board a vessel. When a crime is committed in this state on board a vessel navigating a river, lake or oanal, or lying therein in the course of her voyage, or in respect to any portion of the cargo or lading of such boat or vessel, the Jurisdiction is in any county through which, or any part of which, such river or canal passes, or in which such lake is situated, or on which it borders, or in the county where such voyage terminates, or would terminate if completed. § 137. Of crime committed in the state on board of any railway train, etc. When a crime is committed in this state, in or on board of any railway engine, train or car, making a passage or trip on or over any railway in this state, or in respect to any portion of the lading or freightage or any such railway train or engine car, the jurisdiction is in any county through which, or any part of which, the railway train or car passes, or has passed in the course of the same passage or trip, or in any county where such passage or trip terminates, or would terminate, if completed. § 138. Indictment for libel. When a crime of libel is committed by publication in any paper in this state, against a person residing in the state, the jurisdiction is in either the county where tlie paper is published, or in the county where the party libeled resides. But the defendant may tave the place of trial changed to the county where the libel is printed, on executing a bond to the complainant in the penal sum of not less than $250, nor more than $1,000, conditioned, in case the defendant is convicted, for the payment of the complainant's reasdhable and necessary traveling expenses in going to and from his place of residence and the place of trial, and his necessary expenses in attendance thereon, which bond must be signed by two sufficient sureties, to be approved by the judge of a court of record exercising criminal jurisdiction. Whenever the crime of libel is committed against a person not a resident of this state, the defendant must be indicted and the trial thereof had in the county where the libel is printed and published. But if the paper does not, upon its face, purport to be printed or published in a particular county of this state, the defendant may be in"« dieted and the trial thereof had in any county where the paper is circulated. In no case, however, can the defendant be indicted for the printing or publication of one libel in more than one county of this state. § 139. Conviction or acqnittal in another state, a bar, wbere tbe juris- diction is concurrent. When an act charged as a crime is within the jurisdiction of another state, terri- tory or country, as well as within the jurisdiction of this state, a conviction or acquit- tal thereof in the former, is a bar to a prosecution or indictment therefor in this state. § 140. Convictions or acquittal in another county a bar, irhere the juris- diction is concurrent. When a crime is committed within the jurisdiction of two or more counties of this state, a conviction or acquittal thereof in one county is a bar to a prosecution or indict- ment thereof in another. PROCEEDINGS IN CEIMINAL ACTIONS. 583 TITLE III. OF THE INFOEMATION ON PKOOEEDINGS THEKEON TO THE COMMITMENT INCLUSIVE. CHAPTER I.— The information. II. — The warrant of arrest. III. — Arrest by an officer under a warrant. IV. — Arrest by an officer without a warrant. V. — Arrest by a private person. VI. — Retaking, after an escape or rescue. VII. — Examination of the case and discharge Of the defendant, or holding him to answer. CHAPTER I. TEE INFOBMATIOR. 8ECTI0N 145. Information, defined. 146. Magistrate, defined. 147. Who are magistrates. § 145. Information, defined. The information is the allegation made to a magistrate, that a person has been guilty of some designated crime. § 146. Magistrate, defined. A magistrate is an officer, having power to issue a warrant for the arrest of a person charged with a crime. § 147. [Am'd. 1892, 1909.] "VTho are magistrates. The following persons are magistrates: 1. The justices of the supreme court. 2. The judges of any city court. 3. The county judges and special county judges. 4. The city judge of the city of New York, and the judges of the court of general sessions in the city and county of New York. 5. The justices of the peace. 6. The police and other special justices appointed or elected in a city, village or town. 7. The mayors and recorders of cities. But in the city of New York, the only magis- trates authorized to commit children to institutions are justices of the supreme court, the recorder, the city judge of the city of New York, and judges authorized to hold the court of general sessions, and the police justices. 8. The judges of the city court of BuflFalo. 584 CODE OF CEIMINAL PEOCEDUEE. CHAPTER II. THE WARRANT OF AEBEST. Section 148. Examination of the prosecutor and his witnesses, upon the information. 149. Depositions, what to contain. 150. In what case warrant of arrest may be issued. 151. Form of the warrant. 152. Name or description of the defendant, in the warrant and statement of the offence. 153. Warrant to be directed to and executed by a peace officer. 154. Who are peace officers. 155. Warrant issued by certain judges. 156. Id.; by other magistrates. 167. Indorsement on tlie warrant, for service in another county, how and upon what proof to be made. 158. Defendant, arrested for felony. 159. Defendant, arrested for a misdemeanor. 160. Proceedings on taking bail from the defendant, in such case. 161. Proceedings, where he is admitted to bail in such case, but bail is not given. 162. Prisoner carried from county to county. 163. Power and privilege of officer. 164. When magistrate issuing the warrant is unable to act. 165. Defendant in all cases to be taken before a magistrate, without delay. 166. Defendant before another magistrate than the one who issued the war- rant. § 148. Ezamination of the prosecntor, etc. When an information is laid before a magistrate, of the commission of a crime, he must examine on oath the informant or prosecutor, and any witnesses he may pro- duce, and take their deposititous in writing, and cause them to be subscribed by the parties making them. § 149. Depositions, nrhat to contain. The depositions must set forth facts stated by the prosecutor and his witnesses, tending to establish the commission of the crime and the guilt of the defendant. § 150. In -what case a summons or -warrant of arrest may be issued, 1. If the magistrate be satisfied, from such depositions, that the crime complained of has been committed, and the crime charged is one of which a court of special sessions has exclusive jurisdiction or is one of the offenses enumerated in section fifty-six, and the person charged with the commission of the crime is a citizen of the state and a resident of the city or town where the information is laid, or if the charge be against a child accused of an offense of the grade of or under section twenty-one hundred and eighty-six of the penal law permitted to be tried as a misdemeanor or an offense for which such child can be found guilty of juvenile delinquency, and in any other case in which the magistrate has power to commit children as provided by law, the magis- PEOCEEDrnGS IN OKIMINAL ACTIONS. 585 trate may, in his discretion, instead of issuing a warrant as hereinafter provided, issue a summons which shall be substantially in the following form : " court, county of city or town of In the name of the people of the state of New York: To Complaint having been made this day by that you (here liriefly state the nature of oflFense in regard to which complaint is made), you aie hereby summoned to appear before me (here insert title of magistrate issuing sum- mons), at (location of court) on the day of , 19. ., at o'clock .... M., to the end that an investigation may be made of said complaint; and upon your failure to appear at the time and place herein mentioned, you are liable to a fine of not exceeding twenty-five dollars. Dated at the day of (Here insert official title of magistrate)." Upon said summons shall be indorsed the name of the complainant and of the person summoned and also a brief description of the offense complained of. A record shall be kept of the issuance and disposition of each summons in the same manner as in proceedings under which a warrant is issued. Such summons may be served by the complainant, or by a peace officer, or by any other person designated by the magistrate. Upon the return of the summons the magistrate shall inquire and investigate into the subject-matter of the complaint in the same manner as if defendant were brought before the magistrate upon a warrant of arrest. If the person summoned does not appear, such failure to appear shall constitute a contempt, which the magistrate is empowered to punish by a fine of not exceeding twenty-five dollars. 2. If the magistrate be satisfied from such depositions that the crime complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, and if the case is one that does not come within the provisions of subdivision one of this section, he must issue a warrant of arrest. If a summons shall have been issued as heretofore provided, and the person summoned shall have failed to appear or shall have appeared and the magistrate determines that there is reasonable ground therefor, a warrant of arrest may be issued. (Amended by L. 1917, ch. 686, in effect Sept. 1, 1917.) § 151. Form of the warrant. A warrant of arrest is an order in writing in the name of the people, signed by a magistrate, commanding the arrest of the defendant, and may be substantially in the following form, the blanks being properly filled: " County of In the name of the people of the State of New York, to any peace' officer in the Information, upon oath, having been this day laid before me that the crime of has been committed and accusing thereof, You are therefore commanded forthwith to arrest the above-named and bring him before at Dated at this day of , 19 . . . Justice of the Peace." 586 CODE OF CKIMINAL PROOEDUEE. The warrant must direct that the defendant be brought before the magistrate issuing the warrant, or if the offense was committed in another town, and is one of which a court of special sessions has jurisdiction to try, or which a magistrate has jurisdiction to hear and determine, he must direct that the defendant be brought before a magis- trate of the town in which the offense was committed. § 152. Name or description of the defendant in the warrant and statement of the offense. The warrant must specify the name of the defendant, or if it be unknown to the magistrate, the defendant may be designated therein by any name. It must also state an offense in respect to which the magistrate has authority to issue the warrant, and the time of issuing it, and the city, town or village where it is issued, and be signed by the magistrate with his name of ofiBce. § 153. Warrant to be directed to and executed by a peace of&cer. The warrant must be directed to, and executed by, a peace officer. § 154. Who are peace oflScers. A peace officer is a sheriff of a county, or his under sheriff or deputy, or a county detective appointed pursuant to chapter sixty-two of the laws of eighteen hundred and ninety-seven as amended by chapter five hundred and thirty-two of the laws of nine- teen hundred and by chapter five hundred and ninety-eight of the laws of nineteen hundred and eleven, or a constable, marshal, police constable, or policeman of a city, town or village, or a county detective employed in the oflSce of the district attorney in any county embraced wholly within the limits of a city, or an attendant or an ofiicial of the court of general sessions of the county of New York or an attendant or an official of the supreme court in the first department. § 155. [Am'd, 1893.] Warrant by certain judges. If the warrant be issued by a judge of the supreme court, recorder, city judge or judge of a court of general sessions in the city and county of New York or by a county judge, or by the recorder of a city where jurisdiction is conferred by law upon such recorder, or by a judge of the city court, it may be directed generally to any peace officer in the state, and may be executed by any of those officers to whom it may be delivered. § 156. Id.; by other magistrates. If it is issued by any other magistrate, it may be directed generally to any peace officer in the county in which it is issued, and may be executed in that county; or if the defendant be in another county, it may be executed therein, upon the written direction of a magistrate of such other county indorsed upon the warrant, signed by him with his name of office and dated at the city, town or village where it is made, to the following effect : " This warrant may be executed in the county of Monroe " [or as the case may be]. § 157. Indorsement on the warrant, for service in another county, how ^nd upon what proof to be made. The indorsement mentioned in the last section cannot, however, be made, unless upon the oath of a credible witness, in writing, indorsed on or annexed to the warrant, proving the handwriting of the magistrate by whom it was issued. Upon this proof, the magistrate indorsing the warrant is exempted from liability to a civil or criminal action, though it afterward appear that the warrant was illegally or improperly issued. § 158. Defendant, arrested for felony. If the crime charged in the warrant be a felony the officer making the arrest must take the defendant before the magistrate who issued the warrant, or some other magis- trate in the same county, as provided in section 164. § 159. Defendant, arrested for a misdemeanor. If the crime charged in the warrant be a misdemeanor, an^ the defendant be arrested in another county, the officer must, upon being required by the defendant, take him PKOCEEDINGS IN" CEIMINAL ACTIONS. 587 before a magistrate in that county, who must admit the defendant to hail, for his appearance before the magistrate named in the warrant, and take bail from him accordingly. § 160. Proceedings on taking bail from tbe defendant, in snch case. On taking bail, the magistrate must certify that fact on the warrant, and deliver the warrant and undertaking of bail to the officer having charge of the defendant. The officer must then discharge the defendant from arrest, and, without delay, deliver the warrant and undertaking to the magistrate before whom the defendant is required to appear. § 161. [Am'd, 1893.] Proceedings, etc., but bail is not given. If, on the admission of the defendant to bail, as provided in section one hundred and fifty-nine, bail be not forthwith given the officer must take the defendant before a magistrate as directed by the warrant, or some other magistrate in the same town or county, as provided in section one hundred and sixty-four. § 162. Prisoner carried from county to county. An officer who has arrested a defendant on a criminal charge, in any county, may carry such prisoner through such parts of any county or counties, as shall be in the ordinary route of travel from the place where the prisoner shall have been arrested, to the place where Be is to be conveyed and delivered under the process, by which the arrest shall have been made, and such conveyance shall not be deemed an escape. § 163. Fourer and privilege of officer. While passing through such other county or counties, the officers having the prisoner in their charge shall not be liable to arrest on civil process; and they shall have the like power to require any citizen to aid in securing such prisoner, and to retake him if he escapes, as if they were in their own county; and a refusal or neglect to render such aid shall be an offense, in the same manner, as if they were officers of the county where such aid shall be required. g 164. [Am'd, 1893.] 'When magistrate issuing irarrant unable to act. When, by the preceding sections of this chapter, the defendant is required to be taken before the magistrate who issued the warrant, or before a magistrate of the town in which the offense was committed, he may, if that magistrate be absent or unable to act, be taken before the nearest or most accessible magistrate in the town in which the magistrate before whom the warrant is returnable resides, if there be such a magistrate accessible and qualified to act, and otherwise, before the nearest or most accessible magistrate in the same county. The officer must, at the same time, deliver to the magistrate the warrant, with his return indorsed and subscribed by him. § 165. [Am'd, 1887.] Defendant, upon arrest, to be taken before magis- trate. The defendant must in all cases be taken before the magistrate without unnecessary delay, and he may give bail at any hour of the day or night. § 166. Defendant before another magistrate than the one -who issued the ivarrant. If the defendant be taken before a magistrate other than the one who issued tha warrant, the depositions on which the warrant was granted must be sent to that magis- trate, or if they cannot be procured, the prosecutor and his witnesses must be sum- moned to give their testimony anew. 588 CODE or CEIMIIsrAL PEOCEDUKE. CHAPTER III. AEBEST BY AN OPFICEK UNDER A WABRANT. Section 167. Arrest defined. 168. By whom an arrest may be made. 169. Every person bound to aid an officer in an arrest. 170. When the arrest may be made. 171. How an arrest is made. 172. No further restraint allowed, than is necessary. 173. Officer must state his authority, and show warrant, if required. 174. If defendant flee or resist, officer may use all necessary means to effect arrest. 175. When officer may break open a. door or window. 176. Outer or inner door § 167. Arrest defined. Arrest is the taking of a person into custody that he may be held to answer for a crime. § 168. By -whom an arrest may be made. An arrest may be, 1. By a peace o'fficer, under a warrant; 2. By a peace officer, without a warrant; or 3. By a private person. § 169. Every person bound to aid an officer in an arrest. Every person must aid an officer in the execution of a warrant, if the officer require his aid and be present and acting in its execution. § 170. Wben tbe arrest may be made. If the crime charged be a felony, the arrest may be made on any day, and at any time of the day or during any night. If it be a misdemeanor, the arrest cannot he made on Sunday, or at night, unless by direction of the magistrate indorsed upon the warrant. § 171. Hair an arrest is made. An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer. § 172. No further restraint allowed, than is necessary. The defendant is not to be subjected to any more restraint than is necessary for his arrest and detention. § 173. Officer must state his authority, and shoir warrant, if required. The defendant must be informed by the officer that he acts under the authority of the warrant, and he must also show the warrant, if required. § 174. If the defendant flee or resist, officer may use all necessary mean0 to effect arrest. If, after notice of intention to arrest the defendant, he either flee or forcibly resist, the officer may u.se all necessary means to effect the arrest. PKOCEEDII^GS IN CKIMII^taL ACTIONS. 589 § 175. When officer may break open a door or trindow. The officer may break open an outer or inner door or window of any building, to execute the warrant, if, after notice of hia authority and purpose, he be refused admittance. § 176. Onter or inner door. An officer may break, open an outer or inner door or window of any building, for the purpose of liberating a person, who, having entered for the purpose of making an arrest, is detained therein, or when necessary for his own liberation. CHAPTER IV. AEKEST BY AN OFFICEB, WITHOUT A WAEEANT. Section 177. In what cases allowed. 178. May break open a door or window, if admittance refused. 179. May arrest at night, on reasonable suspicion of felony. 180. Must state his authority, and cause of arrest, except where party is committing felony or is pursued after escape. 181. May take before a magistrate, a person arrested by a by-stander for breach of the peace. 182. Magistrate may commit by verbal or written order, for offenses committed in his presence. § 177. In trliat cases alloired. A peace officer, may, without a warrant, arrest a person : 1. For a crime, committed or attempted in his presence; 2. When the person arrested has committed a felony, although not in his presence; 3. When a felony has in fact been committed, and he has reasonable cause for believing the person to be arrested to have committed it. § 178. May break open a door or irindo'w, if admittance refused. To make an arrest, as provided in the last section, the officer may break open an outer or inner door or window of a building, if, after notice of his office and purpose, he is refused admittance. § 179. May arrest at night, on reasonable suspicion of felony. He may also, at night, without a warrant, arrest any person whom he has reasonable cause for believing to have committed a felony, and is justified in making the arrest, though it afterward appear that a felony had been committed but that the person arrested did not commit it. § 180. Must state his authority, and cause of arrest, except where party is committing felony or is pursued after escape. When arresting a person without a warrant the officer must inform him. of the authority of the officer and the cause of the arrest, except when the person arrested is in the actual commission of a crime, or is pursued immediately after an escape. § 181. May take before a magistrate, a person arrested by a bystander for breach of the peace. A peace officer may take before a magistrate, a person, who, being engaged in a breach of the peace, is arrested by a bystander and delivered to him. 690 CODE OF CEIMINAL PROCEDUEE. § 182. Magistrate may commit by verbal or written, order, for offeiues committed in bis presence* When a crime is committed in the presence of a magistrate, he may, by a verbal or written order, command any person to arrest the offender, and may thereupon proceed as if the offender had been brought before him on a warrant of arrest. CHAPTER V. AEEEST OF A PEIVATE FEBSON. Section 183. In what cases allowed. 184. Must inform the party of the cause of arrest, except when actually com- mitting the offense, or on pursuit after escape. 186. Must immediately take prisoner before a magistrate, or deliver him to a peace officer. § 183. In what cases allowed. A private person may arrest another, 1. For a crime, committed or attempted in his presence; 2. When the person arrested has committed a felony, although not in his presence. § 184. Must inform the party of cause of arrest, except when actually coiumitting; the offense or on pursuit after escape. A private person before making an arrest, must inform the person to be arrested of the cause thereof, and require him to submit, except when he is in the actual commiS' sion of the crime, or when he is arrested on pursuit immediately after its commission. § 185. Must immediately tahe prisoner before a magistrate, or deliTer him to a peace officer. A private persor., who has arrested another for the commission of a crime, must, without unnecessary delay, take him before a magistrate, or deliver him to a peace ofSoer. CHAPTER VI. EETAKINO, AFTER AN ESCAPE OE EESCTJE, Section 186. May be at any time, or in any place in the state. 187. May break open a door or window, if admittance refused. § 186. May be at any time, or in any place in the state. If a person arrested escape or be rescued, the person from whose custody he escaped, or was rescued, may immediately pursue and retake him, at any time, and in any place in the state. § 187. May break open a door or window, if admittance refused. To retake the person escaping or rescued, the person pursuing may, after notice of his intention and refusal of admittance, break open an outer or inner door or window of a building. PEOCEEDINGS m CEIMINAL ACTIONS. 591 CHAPTER VIL EXAMINATIOK OF THE CASE AND DISCHABGE OF THE DEFENDANT, OB HOLDING HIM TO ANSWEB. Section 188. Magistrate to inform defendant of the charge, and his right to counsel. 189. Time to send, and sending for counsel. 190. On appearance of counsel, or waiting for him a reasonable time exam- ination to proceed. 191. When to be completed; adjournment. 192. On adjournment, defendant to be committed, or discharged on deposit of money. 193. Form of commitment. 194. Depositions, to be read on examination, and witnesses examined. 195. Examination of witnesses to be in presence of defendant, and witnesses to be cross-examined in his behalf. 196. Defendant to be informed of his right to make a statement. 197. Waiver of his right, and its effect. 198. Statement, how taken. 199. Same. 200. How reduced to writing, and authenticated. 201. After statement or waiver, defendant's witnesses to be examined. 202. Witnesses to be kept apart. 203. Who may be present at examination. 204. Testimony, how taken and authenticated. 205. Depositions and statement how and by whom kept. 206. Defendant entitled to copies of depositions and statement. 207. Defendant, when and how to be discharged. 208. When and how to be committed. 209. Order for commitment. 210. Certificate of bail being taken. 211. Defendant to choose how he shall be tried. 212. Order for bail, on commitment. 213. Form of commitment. 214. Same. 215. Undertaking of witnesses to appear, when and how taken. 216. Security for appearance^ of witnesses, when and how required. 217. Witnesses under sixteen. 218. Witnesses to be committed, on refusal to give security for appearance. 219. Witness, unable to give security, may be conditionally examined. 220. Justices' criminal docket. 221. Magistrate to return depositions, statement and undertakings of wit- nesses, to the court. 221a. Recognizances and other papers to be filed. 221b. Taking of examination, depositions and statements by official steno- graphers. § 188. Magistrate to inform defendant of the charge, and his right to connsel. When the defendant is brought before a magistrate upon an arrest either with or without warrant on a charge of having committed a crime, the magistrate must imme- 592 CODE OF CEIMIlSfAL PKOCEDUKE. diately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings, and before any further proceedings are had. § 189. Time to send, and sending for counsel. He must also allow the defendant a reasonable tiihe to send for counsel, and adjourn the examination for that purpose; and must, upon the request of the defendant, require a peace officer to take a message to such counsel in the town, or city, as the defendant may name. The officer must, without delay and without fee, perform that duty. § 190. On appearance of counsel, or -waiting for him a reasonable time, examination to proceed. The magistrate, immediately after the appearance of counsel, or if none appear and the defendant require the aid of counsel, must, after waiting a reasonable time therefor, proceed to examine the case, unless the defendant waives examination and elects to give bail, in which case the magistrate must admit the defendant to bail if the crime is bailable, as provided in section 210; and in that case witnesses in attendance or shown to be material for the people may be required to appear and testify, or to be examined conditionally as prescribed in sections 215, 216, 217, 218, 219, 220. § 191. 'WKen to be completed; adjournment. The examination must be completed at one session, unless the magistrate, for good cause shown, adjourn it. The adjournment cannot be for more than two days at each time, unless by consent or on motion of the defendant. § 192. On adjournment, defendant to be committed, or discharged on de> posit of money. If an adjournment be had for any cause, the magistrate must commit the defendant for examination, or discharge him from custody, upon his giving bail to appear during the examination, or upon the deposit of money as provided in this Code, to make sure of his appearance at the time to which the examination is adjourned. § 193. [Am'd, 1890.] Form of commitment for examination. The commitment for examination must be to the following effect : "State of New York, | "County of J**"' " In the name of the people of the state of New York. " To the sheriff of the county of " (or in the city and county of New York "to the keeper of the city prison of the city and county of New York"). "A. B. having been brought before me under a warrant of arrest upon the charge of (stating briefly the nature of the crime) is committed for examination to the sheriff of the county of " or in the city or county of New York " to the keeper of the city prison of the city of New York." " Dated at the city of (or as the case may be,) this day of "C. D., " Justice of the Peace " ( or as the case may be) . § 194. Depositions, to be read on examination, and witnesses examined. At the examination, the magistrate must, in the first place, read to the defendant the depositions of the witnesses examined on the taking of the information, and if the defendant request it, or elects to have the examination, mu'^t summon for cross- PROCEEDINGS IN CRIMINAL ACTIONS. 593 examination the witnesses so examined, if they be in the county. He must also issue subpoenas for additional witnesses required by the prosecutor or the defendant. § 195. Examination of -witnesses to be in presence of defendant, and wit- nesses to be cross-t^xamined in his behalf. The witnesses must be examined in the presence of the defendant, and may be cross- examined in his behalf. § 196. Defendant to be informed of his right to make a statement. When the examination of the witnesses on the part of the people is closed, the magistrate must inform the defendant, that it is his right to make a statement in relation to the charge against him (stating to him the nature thereof) ; that the state- ment is designed to enable him, if he see fit, to answer the charge and to explain the fact alleged against him; that he is at liberty to waive making a statement; and that his waiver cannot be used against him on the trial. § 197. VTaiver of his right and its effect. If the defendant waive his right to make a statement, the magistrate must make a note thereof, immediately following the depositions of the witnesses against the defendant. § 198. Statement, how taken. If the defendant choose tb make a statement, the magistrate must proceed to take it in writing, without oath, and must put to the defendant the following questions only : What is your name and age? Where were you born ? Where do you reside, and how long have you resided there? What is your business or profession? Give any explanation you may think proper, of the circumstances appearing in the testimony against you, and state any facts which you think will tend to your exculpation. § 199. Statement to be read. The answer of the defendant to each of the questions must be distinctly read to him as it is taken down. He may thereupon correct or add to his answer, and it must be corrected until it is made conformable to what he declares to be the truth. § 200. How reduced to writing, and anthenticated. The statement must be reduced to writing by the magistrate, or under his direction, and authenticated in the following manner: 1. The authentication must set forth in detail that the defendant was informed of his rights as provided in section 196, and that, after being so informed, he made the statement ; 2. It must contain the questions put to him, and his answers thereto, as provided in sections 198 and 199; 3. It may be signed by the defendant, or he may refuse to sign it; but if he refuse to sign, his reason therefor must be stated as he gives it; 4. It must be signed and certified by the magistrate. § 201. After statement of waiver, defendant's witnesses to be examined. After the waiver of the defendant to make a statement, or after he has made it, his witnesses, if he produce any, must be sworn and examined. 38 594 CODE OF CEIMINAL PROCEDUKE. § 202. Witnesses to be kept apart. The witnesses produced on the part either of the people or of the defendant cannot be present at the examination of the defendant; and while a witness is under examina- tion, the magistrate may exclude all witnesses who have not been examined. He may also cause the witnesses to be kept separate, and to be prevented from conversing with each other, until they are all examined. § 203. [Am'd, 1888.] WKo may be present at examination. The magistrate may also exclude from the examination every person except the clerk of the magistrate, the prosecutor and his counsel, the attorney-general, the district attorney of the county, the defendant and his counsel and the officer having the defendant in custody. § 204. Testimony, bow taken and antbenticated. The testimony given by each witness must be reduced to writing, as a deposition, by the magistrate or under his direction, and authenticated in the following manner: 1. The authentication must state the name and age of the witness, his place of residence, and his business or profession; 2. It must, unless deposition by question and answer be waived by the defendant and the witness, contain the questions put to the witness, and his answers thereto; each answer being distinctly read to him as it is taken down, and being corrected or added to until it is made conformable to what he declares to be the truth; 3. If a question put be objected to on either side, and overruled, or the witness decline answering it, that fact, with the ground on which the question was overruled or the answer declined, must be stated; 4. The deposition must be signed by the witness, or, if he refuse to sign it, his reason for refusing must be stated in writing as he gives it; 5. It must be signed and certified by the magistrate. 6. [Added, 1896.] The foregoing provisions shall apply to preliminary examina- tions in the city and county of New York only when either the defendant or the district attorney, or the representative of the district attorney shall so elect. § 205. [Am'd, 1888.] Deposition, and statement; how and by whom kept. The ma,gistrate or his clerk must keep the depositions taken on the information or on the examination, and the statement of the defendant, if any, until they are returned to the proper court; and must not permit them to be inspected by any person, except a judge of a court having jurisdiction of the offense, the attorney-general, the district attorney of the county, the defendant and his counsel and the complainant, and his counsel. § 206. Defendant entitled to copies of depositions and statement. If the defendant be held to answer the charge, the magistrate or his clerk having the custody of the depositions taken on the information or examination, and of the state- ment of the defendant, must, on payment of his fees at the rate of five cents for every hundred words, and within two days after demand, furnish to the defendant, or his counsel, a copy of the depositions and statement, or permit either of them to take a copy. § 207. Defendant, -when and bow to be disobarged. After hearing the proofs, and the statement of the defendant, if he have made one, if it appear, either that a crime has not been committed, or that there is no sufficient cause to believe the defendant guilty thereof, the magistrate must order the defendant to be discharged, by an indorsement on the depositions and statement, signed by him, PEOCEEDINGS IN CKIMINAL ACTIONS. 595 to the following effect: "There being no sufficient cause to believe the within named A. B. guilty of the offense within mentioned, I order him to be discharged." § 208. When and how to be committed. If, however, it appear from the examination that a crime has been committed, and that there is sufficient cause to believe the defendant guilty thereof, the magistrate must, in like manner, indorse on the depositions and statement, an order, signed by him, to the following effect: " It appearing to me by the within depositions (and state- ment, if any) that the crime therein mentioned [or any other crime, according to the fact, stating generally the nature thereof] has been committed, and that there is sufficient cause to believe the within named 4- B. guilty thereof, I order that he be held to answer the same." § 209. Order for commitment. If the crime be not bailable, the following words, or words to the same effect, must be added to the indorsement: "and that he be committed to the sheriff of the county of " [or in the city and county of New York " to the keeper of the city prison of the city of New York. "]. § 210. Certificate of bail being taken. If the crime be bailable, and bail be taken by the magistrate, the following words, or words to the same effect, must be added to the indorsement mentioned in section 208 : " and I have admitted him to bail to answer, by the undertaking hereto annexed." § 211. [Am'd, 1897.] Defendant to choose ho-w he shall be tried. If the crime with which the defendant is charged be one triable, as provided in sub- division thirty-seven of section fifty-six, by a court of special sessions of the county in which the same was committed, the magistrate, before holding the defendant to answer, must inform him of his right to be tried by a court of special sessions, and must ask him how he will be tried. If the defendant shall not require to be tried by a court of special sessions, he can only be held to answer to a court having authority to inquire by the intervention of a grand jury in offenses triable in the county. § 212. Order for bail, on commitment. If the crime be bailable, and the defendant be admitted to bail, but bail have nod been taken, the following words, or words to the same effect, must be added to the indorsement mentioned in section 208, " and that he be admitted to bail in the sum of dollars, and he be committed to the sheriff of the county of '' [or in the city and county of New York, " to the keeper of the city prison of the city of New York " ] until he give such bail. § 213. Form of commitment. If the magistrate order the defendant to be committed as provided in section 20!) and 212, he must make out a commitment, signed by him, with his name of office, and deliver it, with the defendant, to the officer to whom he is committed or, if that officer be not present, to a peace officer, who must immediately deliver the defendant into tlie proper custody, together with the commitment. § 214. Form of commitment. The commitment must be to the following effect: "County of Albany [or as the case may be]. "In the name of the people of the state of New York: 'to the sheriff of the county of Albany' [or in the city and county of New York, 'to the keeper of the city prison of the city of New York '] : 596 CODE OF CKIMINAL PEOCEDUEE. "An order having been this day made by me, that A. B. be held to answer to the court of upon a charge of [stating briefly the nature of the crime], you are commanded to receive him into your custody and detain him, until he be legally discharged. " Dated at the city of Albany [or as the case may be], this day of , 19... " C. D., Justice of the Peace [or as the case may be]." § 215. XJndertaking of witnesses to appear, vhen and how taken. On holding the defendant to answer, 1;he magistrate may take from each of the material witnesses examined before him on the part of the people, a written under- taking, to the effect that he will appear and testify at the court to which the- deposi- tions and statement are to be sent, or that he will forfeit the sum of $100. § 216. Security for appearance of witnesses, irhen and how required. When the magistrate is satisfied, by proof on oath, that there is reason to believe that any such witness is an accomplice in the commission of the crime charged, he may order the witness to enter into a written undertaking, with such sureties, and in such fcum as he may deem proper, for his appearance as specified in the last section. § 217. [Am'd, 1909.] Witnesses under sixteen. Children under the age of sixteen years, when witnesses, may be committed as provided by section four hundred and eighty-six and four hundred and eighty-seven of the penal law subject to the order of the trial court. § 218. Witness to be committed on refusal to give security for appearance. If a witness, required to enter into an undertaking to appear and testify, either with or without sureties, refuses compliance with the order for that purpose, the magistrate must commit him to prison until he comply or be legally discharged. § 219. [Am'd, 1887.] Conditional examination of 'witnesses. A witness may be conditionally examined on behalf of the people in the manner and with the efifect provided by title 12, chapter 3 of this Code, for taking examination of witnesses conditionally on behalf of the defendant. A copy of the order and affi- davit upon which the application is made, together with notice of the time and place where the examination is to be taken, shall be served on the defendant, and his counsel if he have any, at least two days before the time fixed for such examination, and the defendant may be present personally upon such examination to confront the witness produced against him, if the defendant have no counsel the order shall contain a pro- vision assigning counsel to him for the purpose of such examination upon whom a copy of said order, affidavit and notice shall be served. § 220. [Am'd, 1898, 1910.] Justices' criminal docket. Every justice of the peace and every police or other special justice appointed or elected in a city, village or town other than in the city and county of New York, shall forthwith enter correctly at the time thereof, full minutes of all business done before him as such justice and as a court of special sessions in criminal actions and in crim- inal proceedings and including cases of felony, in a book to be furnished to him by the clerk of the city, village or town where he shall reside, and which shall be designated " justices' criminal docket," and shall be at all times open for inspection to the public. Such docket shall be and remain the property of the city, village or town of the residence of such justice, and at the expiration of the term of office of such justice, if in a city shall remain on file in the police office of such justice, or in the office of the PROCEEDINGS IN. CRIMINAL ACTIONS. 597 police clerk, and if in a village or town shall be forthwith filed by him in the office of the clerk of such village or town. The minutes in every such docket shall state tho names of the witnesses sworn and their places of residence, and if in a city, the street and house number; and every proceeding had before him. It shall be the duty of every justice of the peace and every police or other special justice in villages and towns, at least once a year and upon the last audit day of such village or town, to present his docket to the auditing board of said village or town, which board shall examine the said docket, and enter in the minutes of its proceedings the fact that such docket book has been duly examined, and that the fines therein collected have been turned over to the proper officials of the village or town as required by law. Any justice of the peace or police or other special justice who shall wilfully fail to make and enter in such docket forthwith, the entries by this section required to be made or to exhibit such docket when reasonably required, or present his docket to the auditing board as herein required, shall be guilty of a misdemeanor and shall, upon conviction, in addition to the punishment provided by law for a misdemeanor, forfeit his office. § 221. [Am'd, 1895, 1896, 1904, 1905.] Magistrate to retnrn depositions, et cetera. Whenever a magistrate has discharged a defendant, or has held him to answer, as provided in sections two hundred and seven and two hundred and eight, he must, within five days thereafter, return to the clerk of the supreme court or county court or other court having power to inquire into the offenses by the intervention of a grand jury, the warrant, if any, the depositions, the statement of the defendant, if he have made one, and all undertakings of bail, or for the appearance of witnesses, taken by liim. In the city of New York such returns shall be made', in the case of all misde- ineanors, except charges of libel to the district attorney of the county wherein the offense charged was committed. Except in a county containing or wholly contained in a city of the first class, any such magistrate, within five days after so discharging or holding a defendant, must also return to the district attorney of the county a state- ment of the name and address of the defendant the crime charged, the name and address of the informant, and the names and addresses of all of the witness subpoenaed or sworn upon the examination, or who have made depositions in support of the in- formation. § 221-a. [Added, 1909.] Recognizances and other papers to be filed. Every recognizance taken by any court, or by any magistrate, coroner or other officer, to appear and answer at any court, and the complaint, inquisition, affidavits and other papers upon which such recognizance is founded, shall be filed in the office of the clerk of the court at which the party is thereby recognized to appear, within ten days after the same is so taken. § 221-a. [Added, 1912.] Taking of examination, depositions and state- ments by official stenographer. Upon an examination provided for in this chapter, by or before any police justice or magistrate by whom an official stenographer shall have been appointed, under pro- vision of law therefor, stenographic minutes of the proceedings and of the examina- tion, depositions of witnesses and statement of the defendant, if any, shall be taken by such stenographer, and such minutes, when so taken and when certified by the stenogra- pher and by the justice or magistrate who held such examination, shall be regarded as actually taken down in writing by said justice or magistrate and subscribed by the witness or witnesses at such examination and by the defendant, and as fully comply- ing with the requirements of this chapter in reference to the taking and subscribing of such examination, depositions and statement. 698 CODE OF CKIMINAL PEOCEDUEE. TITLE V. OF THE INDICTMENT. CHAPTEK III. AMENDMENT OF THE INDICTMENT.- [Made applicable by section 62.1 Section 293. When amendment allowed. 294. Trial to proceed. 295. Eilect of verdict, etc. § 293. When amendment allowed. Upon the trial of an indictment, when a variance between the allegation therein and the proof, in respect to time, or in the name and description of any place, person or thing, shall appear, the court may, in its judgment, if the defendant cannot be thereby prejudiced in his defense on the merits, direct the indictment to be amended, according to the proof, on such terms as to the postponement of the trial, to be had before the same or another jury, as the court may deem reasonable. § 294. Trial to proceed. After such amendment, the trial, whenever the same shall be proceeded with, shall proceed in the same manner and with the same consequences, as if no such variance has occurred. § 295. Effect of verdict, etc. A verdict and judgment, which shall be given after the making of any such amend- ment, shall be of the same force and effect as if the indictment had originally been found in its amended form. CHAPTER IV. AEBAIGNMENT OF THE DEFENDANT. Section 309. Arraignment, how made. 310. If he gave another name, subsequent proceedings to be had by that name. § 309. Arraignment, boir made. The arraignment must be made by the court, or by the clerk or district attorney, under its direction, and consists in stating the charge in the indictment to the defen- dant, and in asking him whether he pleads guilty or not guilty thereto. If the defen- dant demand it, the indictment must be read, or a copy thereof furnished to him before requiring him to plead. § 310. If lie gave anotber name, subsequent proceedings to be had by that name. If when arraigned the defendant allege that another name is his true name, the court must direct an entry thereof in the minutes of the arraignment; and the subsequent proceedings on the indictment may be had against him, by that name, referring also to the name by which he is indicted. PKOOEEDINGS IN CKIMIl^^AL ACTIONS. 599 CHAPTER VII. PLEA. [Made applicable by section 62.] I Section 332. The different kinds of pleas. 333. Plea, how put in. 334. Its form. 335. Plea of guilty, how put in. 336. Plea of insanity. 337. Plea may be withdrawn, by permission of the court. 338. What is denied by a plea of not guilty. 339. What may be given in evidence under it. 340. What is deemed a former acquittal. 341. Same. 342. If defendant refuses to answer indictment, plea of not guilty to bo entered. § 332. [Am'd, 1897.] Flea of guilty restricted. There are three kinds of pleas to an indictment: 1. A plea of guilty. 2. A plea of not guilty. 3. A plea of a former judgment of conviction or acquittal of the crime charged, which may be pleaded either with or without the plea of not guilty. A conviction shall not be had upon a plea of guilty where the crime charged is or may be punishable by death. § 333. Plea, how put in. Every plea must be oral, and must be entered upon the minutes of the court. § 334. Its form. The plea must be entered in substantially the following form: 1. If the defendant plead guilty to the crime charged in the indictment, "the defen- dant pleads that he is guilty; " 2. If he plead guilty to any lesser crime than that charged in the indictment, the defendant pleads guilty to the crime of " Inaming it]. 3. If he plead not guilty, " the defendant pleads not guilty." 4. If he plead a former conviction or acquittal: "the defendant pleads, that he has already been convicted [or acquitted as the case may be], of the crime charged in this indictment, by the judgment of the court of [naming it], rendered at [naming the place], on the day of " § 335. Plea of guilty, how put in. A plea of guilty can only be put in by the defendant himself in open court, except upon an indictment against a corporation; in which case, it may be put in by counsel. § 336. Plea of insanity. Whenever a person, in confinement under indictment, desires to offer the pica ot insanity, he may present such plea at the time of his arraignment as a specificatioa Under the plea of not guilty. 600 CODE OF CKIMII^AL PKOCEDUEE. § 337. Plea may be withdra-nrii, by permission of the court. The court may, in its discretion, at any time before judgment upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted. § 338. VThat is denied by a plea of not guilty. The plea of not guilty is a denial of every material allegation in the indictment. § 339. Wbat may be given in evidence under it. All matters of fact, tending to establish a defense, other than that specified in the third subdivision of section 332, may be given in evidence under the plea of not guilty. § 340. What is deemed a former acanittal. If the defendant were formally acquitted on the ground of a variance between the indictment and the proof, or the indictment were dismissed upon an objection to its form or substance, without a judgment of acquittal, it is not deemed an acquittal of the same oflfense. § 341. Same. When, however, the defendant was acquitted on the merits, he is deemed acquitted of the same offense, notwithstanding a defect in form or substance, in the indictment on which he was acquitted. § 342. If defendant refuse to ansiver indictment, plea of not guilty to be entered. If the defendant refuse to answer an indictment, by demurrer or plea, a plea of not guilty must be entered. TITLE VI. OF THE PKOCEEDINGS ON THE INDICTMENT BEFOEE TRIAL. Chaptee I. — The mode of trial. II. — Formation of the trial jury. III. — Challenging the jury. CHAPTER III. CHAIiENGING THE JtTET. [Made applicable by section 62.] Section 359. Definition and division of challenges. 360. When there are several defendants, they must unite in their challenges. 361. Challenge to the panel, defined. 362. Upon what founded. 363. When and how taken. 364. If suificiency of the facts be denied, adverse party may accept. Exception, how made and tried. 365. If exception overruled, court may allow denial of challenge. If allowed, may permit challenge to be amended. PKOCEEDINGS IN" CEIMINAL ACTIONS. 601 Section 366. Denial to challenge, how made, and denial thereof. 367. Who may be examined on trial of challenge. 368. If challenge allowed, jury to be discharged. If disallowed, jury to be impaneled. 369. Defendant to be informed of his right to challenge an individual juror. 370. Kinds of challenge to individual juror. 371. Challenge, when taken. 372. Peremtptory challenge. 373. Number of peremptory challenges to which defendant is entitled. 374. Definition and kinds of challenge for cause. 375. General causes of challenge. - 376. Particular causes of challenge. 377. Ground of challenge for implied bias. 378. Grounds of challenge for actual bias. 379. Exemption, not a ground of challenge. 380. Causes of challenge, how stated. 381. Exceptions to challenge and denial thereof. 382. Challenge, how tried, if denied. 383. Juror challenged may be examined as a witness. 384. Rules of evidence on trial of challenge. 385. Challenges, first by people and then by the defendant. 386. Order of challenges. 387. Jury to be sworn, etc. § 359, Definition and division of challenges. A challenge is an objection made to trial jurors,' and is of two kinds: 1. To the panel; 2. To an individual juror. § 360. Wlien tbere are several defendants, they must nnite in their challenge. When several defendants are tried together they cannot sever their challenges, but must join therein. § 361, Challenge to the panel, defined, A challenge to the panel is an objection made to all the trial jurors returned, and may be taken as well to the panel returned for the term, as to an additional panel ordered to complete the jury. § 362. [Am'd, 1909,] Ground for challenge to panel, A challenge to the panel can be founded only on a material departure, to the prejudice of the defendant, from the forms prescribed by the code of civil procedure and the judiciary law, in respect to the drawing and return of the jury, or on the intentional omission of the sheriflf to summon one or more of the jurors drawn. § 363, When and how taken. A challenge to the panel must be taken before a juror is sworn, and must be in writ- ing, specifying distinctly the facts constituting the ground of challenge. § 364. If sufiKciency of the facts be denied, adverse party may except; exception how made and tried. If the sufficiency of the facts alleged as a ground of challenge be denied, the adverse party may except to the challenge. The exception need not be in wrHing, but must bo 602 CODE OF CEIMINAL PEOCEDUEE. entered upon the minutes of the court; and thereupon the court must proceed to try the sufiSciency of the challenge, assuming the facts alleged therein to be true. § 365. If exception overruled, court may allow denial of challenge; it allovred, may permit challenge to be amended. If, on the exception, the court deem the challenge sufficient, it may, if justice re- quire it, permit the party excepting, to withdraw his exception, and to deny tlie facts alleged in the challenge. If the exception be allowed, the court may, in like manner, permit an amendment of the challenge. § 366. Denial of challenge, how made, and trial thereof. If the cliallenge be denied, the denial may, in like manner, be oral, and must be entered upon the minutes of the court; and the court must proceed to try the question of fact. § 367. Who may be examined on trial of challenge. Ulion the trial of the cliallenge, the officers, whether judicial or ministerial, whoso irregularity is complained of, as well as any other persons, may be examined to prove or disprove the facts alleged as the ground of the challenge. § 368. If challenge allowed, jury to be discharged; if disallowed, jury to be impaneled. If, either upon the exception of the challenge, or a denial of the facts, the challenge be allowed, the court must discharge the jury, so far as the trial of the indictment in quustion is concerned. If the challenge be disallowed, the court must direct the jury to be impaneled. § 369. Defendant to be informed of his right to challenge an individual juror. Before a juror is called, tlie defendant must be informed by the court, or under its direction, that if be intend to challenge an individual juror, he must do so when the juror appears, and before he is sworn. § 370. Kinds of challenge to individual juror. A challenge to an individual juror may be taken either by the people or by the defen- dant, and is either 1. Peremptory, or 2. For cause. § 371. Challenge, -when tahen. A challenge must be taken when the juror appears, and before he is sworn; but tlio court may, in its discretion, for good cause, set aside a juror at any time before evidence is given in the action. § 372. Peremptory challenge. A peremptory cliallenge is an objection to a juror, for which no reason need be given, but upon which the court must exclude him. § 373.> Number of peremptory challenges to -which defendant is entitled. Peremptory challenges must be taken in a number as follows: 1. If the crime charged be punishable with death, thirty; 2. If punishable with imprisonment for life, or for a term of ten years or more, twenty; 3. In all other «ases, five. PEOCEEDINGS IN" CKIMINAL ACTIONS. 603 S 374, Definition and kinds of challenge for oanse. A challenge for cause is an objection to a particular juror, and is eitlier 1. General, that tlie juror is disqualified from serving in any case; or 2. Particular, that he is disqualified from serving in the case on trial. § 375. [Am'd, 1909.] General causes of cballenge. General causes of challenge are, 1. A conviction for a felony; 2. A want of any of the qualifications prescribed by the judiciary law, to render a person a competent juror. § 376. Particular causes of challenge. Particular causes of challenge are of two kinds: 1. For such a bias, as, when the existence of the facts is ascertained, does in judg- ment of law disqualify the juror, and which is known in this Code as implied bias; 2. For the existence of a state of mind on the part of the juror, in reference to the case, or to cither party, which satisfies the court, in the exercise of a sound discretion, that such juror cannot try the issue impartially and without prejudice to the substan- tial rights of the party challenging, and which is known in this Code as actual bias. But the previous expression or formation of an opinion or impression in reference to the guilt or innocence of the defendant, or a present opinion or impression in reference thereto, is not a sufficient ground of challenge for actual bias, to any person otherwise legally qualified, if he declare ou oath, that he believes that such opinion or impression will not influence his verdict, and that he can render an impartial verdict according to the evidence, and the court is satisfied, that he does not entertain sucli a present opinion or impression as would influence his verdict. § 377. Grounds of challenge for, implied. A challenge for implied bias may be taken for all or any of the following causes, and for no other: 1. Consanguinity or affinity within the ninth degree, to the person alleged to be in- jured by the crime charged, or on whose complaint the prosecution was instituted, or to the defendant; 2. Bearing to him the relation of guardian or ward, attorney or client, or client of the attorney or counsel for the people or defendant, master or servant, or landlord or tenant, or being a member of the family of the defendant, or of the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, or in his employment on wages; 3. Being a party adverse to the defendant in a civil action or having complained against, or been accused by him in a criminal prosecution; 4. Having served on the grand jury which found the indictment, or on a coroner's jury which inquired into the death of a person whose death is the subject of the indictment; 5. Having served on a trial jury, which has tried another person for the crime charged in the indictment: 6. Having been one of a jury formerly sworn to try the same indictment, and whose verdict was set aside or which was discharged without a verdict, after the cause was submitted to it; • 7. Having served as a juror, in a civil action brought against the defendant, for the act charged as a crime; 8. If the crime charged be punishable with death, the entertaining of such conscien- tious opinion as would preclude his finding the defendant guilty; in which case he shall neither be permitted nor compelled to serve as a juror. 604 CODE OF CRIMINAL PEOCEDUEE. § 378. Grounds of challenge for actual bias. A challenge for actual bias may be taken for the cause mentioned in the second Eubdivision of section 376, and for no other cause. § 379. Exemption, not a ground for challenge. An exemption from service on a jury is not a cause of challenge, but the privilege of the person exempted. § 380. Causes of challenge, hoxr stated. In a challenge for implied bias, one or more of the causes stated in section 377 must be alleged. In a challenge for actual bias, the cause stated in the second subdivision of section 376 must be alleged. In either case, the challenge may be oral, but must be entered upon the minutes of the court. § 381. Exceptions to challenge and denial thereof. The adverse party may except to the challenge, in the same manner as to a challenge to the panel; and the same proceedings must be had thereon, as prescribed in section 364, except that, if the challenge be allowed, the juror must be excluded. The adverse party may also orally deny the facts alleged as the ground of challenge. § 382. Challenge how tried, if denied. If the facts be denied, the challenge must be tried by the court, which must either allow or disallow the same and direct an entry accordingly on the minutes. If the challenge be allowed, the juror must be discharged. § 383. Juror challenged may be examined as a witness. Upon the trial of a challenge to an individual juror, the juror challenged may be examined as a witness, to prove or disprove'the challenge; and is bound to answer every question pertinent to the inquiry therein. § 384. Rules of evidence on trial of challenge. Other witnesses m.ay be examined on either side; and the rules of evidence applicable to the trial of other issues, govern the admission or exclusion of testimony, on the trial of the challenge. § 385. Challenges first by people and then by the defendant. Challenges to an individual juror must be taken first by the people and then by tho defendant. § 388. Order of challenges. Challenges to either party must be taken: 1. To the panel; 2. To an individual juror, for a general disqualification; 3. To an individual juror, for implied bias; 4. To an individual juror, for actual bias; 6. Peremptory. § 387. Jury to be sworn. The first twelve persons who appear, as their names are drawn and called, who ara proved as indifferent between the parties, and are not discharged or excused, must bo Bworn, and constitute the jury to try the issue. PKOCEEDINGS IN CRIMINAL ACTIONS. 605 TITLE VII. OP THE TEIAI.. Chapter I. — The trial. II. — Conduct of the jury, after the cause is submitted to them. III.— The verdict. CHAPTER I. THE TBIAl. [See section 62.] Section 388. In what order trial to proceed. 389. Defendant presumed innocent, until contrary proved. In case of reason- able doubt, entitled to acquittal. 390. When reasonable doubt of which degree he is guilty, he must be con- victed of the lowest. 391. Separate trial of defendants jointly indicted. 39a. Rules of evidence in civil cases applicable in criminal cases, except where otherwise provided in this Code. 393. Defendant as witness. 393a. Persons jointly indicted, competent witnesses for each other. 394. Compensation of witness. 395. Confession of defendant, when evidence, and its effect. 396. 397. Evidence on trial for treason. 398. Evidence on trial for conspiracy. 398a. Evidence on trial for abortion. -399. Conviction cannot be had on testimony of accomplice, unless corroborated. 400. If testimony show higher crime than that charged, court may discharge jury, and hold defendant to answer a new indictment. 401. If new indictment not found, defendant to be tried on the original in- dictment. 402. Court may discharge jury, where it has not jurisdiction, of the offense, or the facts do not constitute an offense. 403. Proceedings if jury discharged for want of jurisdiction of the offense, when committed out of the state. 404. Proceedings in such case, when offense committed in the state. 405. Same. 406. Same. 407. Same. 408. Proceedings, if jury discharged because the facts do not constitute nn offense. 409. Same. 410. When evidence on either side is closed, court may advise acquittal. Effect of the advice. 411. View of premises, when ordered, and how conducted. 412. Duty of officer as to jury. 413. Knowledge of juror, to be 'declared in court, and juror to be sworn as witness. 606 CODE OF CEIMINAL PKOCEDUKE. Section 414. Jurors may be permitted to separate during the trial. If kept together, oath of the officers. 415. Jurors not to converse together on the subject of the trial, nor form an opinion until the cause is submitted. 416. Proceedings where juror becomes unable to perform his dut7 before con- clusion of trial. 417. Court to decide questions of law arising during trial. 418. On indictment for libel, jury to determine law and fact. 419. In all other cases, court to decide questions of law, subject to right of defendant to except, 420. Charge to jury. 421. Jury may decide in court, or retire in the custody of ofiScers; oath of tlio officers. 422. When defendant on bail appears for trial, he may be committed. § 388. In nrliat order trial to proceed. The jury having been impaneled and sworn, the trial must proceed in the following order : 1. District attorney, or other counsel for the people, must open the case, and ofifer the evidence in support of the indictment. 2. The defendant or his counsel may then open his defense, and offer his evidence in support thereof; 3. The parties may then, respectively, offer rebutting testimony, but the court tor good reason, in furtherance of justice, may permit them to offer evidence upon their original ease; 4. When the evidence is concluded, unless the case is submitted to the jury on either side, or on both sides, without argument, the defendant or his counsel must commence, and the counsel for the people conclude the argument to the jury; 5. The court must then charge the jury. g 3B3. Defendant presumed innocent, until contrary proved; in case of reasonable doubt, entitled to acquittal. A defendant in a criminal action is presumed to be innocent, until the contrary be proved; and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal. § 390. VThen reasonable doubt of irliicli degree he is guilty, lie must be convicted of the loivest. When it appears that a defendant has committed a crime, and there is reasonable ground of doubt, in which of two or more degrees he is guilty, he can be convicted of the lowest of those degrees only. § 391. Separate trial of defendants jointly indicted. When two or more defendants are jointly indicted for a felony, any defendant requir- ing it, must be tried separately. In other oases, defendants, jointly indicted, may be tried separately or jointly, in the discretion of the court. § 392. [Am'd, 1892.] Rules of evidnce in civil cases applicable in criminal cases, except ivhere otherwise provided in this Code, The rules of evidence in civil cases are applicable also to criminal cases, except as otherwise provided in this Code. Whenever in any criminal proceedsinss a child actii- magistrate, upon the like notice, in writing, requiring him to do so, must transmit the ally or apparently under the age of twelve years offered as a witness does not in the PEOCEEDINGS IN CEIMINAL ACTION'S. 607 opinion of the court or magistrate understand the nature of an oath, the evidence of such child may be received though not given under oath if, in the opinion of the court or magistrate, such child is possessed of sufficient intelligence to justify the re- ception of the evidence. But no person shall be held or convicted of an offense upon such testimony unsupported by other evidence. § 392-a. Pleading in civil action. A pleading in a civil action cannot be used, in a criminal prosecution against the party, as proof of a fact admitted or alleged therein. § 393. Defendant as iritness. The defendant in all cases may testify as a witness in his own behalf, but his neglect or refusal to testify does not create any presumption against him. § 393-a. [Added, 1909.] Persons jointly indicted, competent witnesses for each, other. All persons jointly indicted shall, upon the trial of either, be competent witnesses for each other the same as if not included in the same indictment. § 394. Compensation of witness. The rules as to the compensation of witnesses attending trials in criminal cases, pre- scribed by special statutes, are continued as there defined. § 395. Confession of defendant, 'when evidence, and its effect. A confession of a defendant, whether in the course of judicial proceedings or to a private person, can be given in evidence against him, unless made under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney, that he shall not be prosecuted therefor; but is not sufficient to warrant his conviction, without additional proof that the crime charged has been committed. § 396. Evidence on trial for treason. Upon a trial for treason the defendant cannot be convicted, except upon the testi- mony of two witnesses to the same overt act, or of one witness to one overt act, and another witness to a different overt act of the same treason. But if two or more dis- tinct treasons, of different kinds, be alleged in the indictment, two witnesses to prove different treasons are not sufficient to warrant a conviction. § 397. Same. Upon a trial for treason, evidence cannot be admitted, of an overt act not expressly charged in the indictment; nor can the defendant be convicted, unless one or mora overt acts be expressly alleged therein. § 398. Evidence on trial for conspiracy. Upon a trial for conspiracy, in a ease where an overt act is necessary to constitiito the crime, the defendant cannot he convicted, unless one or more overt acts be expressly alleged in the indictment, nor unless one or more of the acts alleged be proved; but any other overt act, not alleged in the indictment, may be given in evidence. § 398-a. [Added, 1909.] Evidence on trial for abortion. In all prosecutions under and in pursuance of article six of the penal law, the dying declarations of the woman whose death is produced by any of the means set forth in said article, shall be admitted in evidence subject to the same restrictions as in cases of homicide. § 399. Conviction cannot he had on testimony of accomplice, unless cor- roborated. A conviction cannot be had upon the testimony of an accomplice, unless he be cor- roborated by such other evidence as tends to connect the defendant with the commis- sion of the crime. 608 CODE OF CKIMINAL PEOCEDUEE. § 400. If testimony show higlier offense than that charged, court may dis- charge jury, and hold defendant to ansiver a new indictment. If it appear by the testimony, tliat the facts proved constitute a crime of a liigher nature than that charged in the indictment, the court may direct the jury to be dis- charged, and all proceedings on the indictment to be suspended, and may order the defendant to be committed, or continued on or admitted to bail, to answer any new indictment which may be found against him for the higher offense. § 401. If new indictment not found, defendant to he tried on the original indictment. If an indictment for the higher crime be dismissed by the grand jury, or be not found at or before the next term, the court must again proceed to try the defendant on the original indictment. § 402. Court may discharge jury, where it has not jurisdiction of the offense, or the facts do not constitute an offense. The court may also direct the jury to be discharged, where it appears that it has not jurisdiction of the crime, or that the facts, as charged in the indictment, do not constitute a crime. § 403. Proceedings, if jury discharge for want of jurisdiction of the offense, urhen committed out of the state. If the jury be discharged, because the court has not jurisdiction of the cringe charged in the indictment, and it appears that it was committed out of the jurisdiction of the state, the court may order the defendant to be discharged, or to be detained for a reasonable time specified in the order, until a communication can be sent by the district attorney to the chief executive officer of the state, territory or district where the crime was committed. § 404. Proceedings in such case, when offense committed in the state. If the crime were committed within the exclusive jurisdiction of another county of this state, the court must direct the defendant to be committed for such time as it deems reasonable, to await a warrant from the proper county for his arrest; or if the crime be a misdemeanor only, it may admit him to bail, in an undertaking, with suffi- cient sureties, that he will, within such time as the court may appoint, appear in suck court to await a warrant from the proper county for his arrest. § 405. Same. In the case provided for in the last section, the clerk must forthwith give nolico to the district attorney of the proper county, that the defendant has been so commltkd or held to bail. § 406. Same. If the defendant be not arrested, as provided in section 404, on a warrant from llio proper county, he must be discharged from custody, or his bail in the action be exonerated, or money deposited instead of bail refunded, as the case may be; and Hie sureties in the undertaking mentioned in that section must be discharged. § 407. Same. If the defendant be arrested, the same proceedings must be had thereupon, as «I'oB the arrest of a defendant in another county, on a warrant of arrest issued by a magistrate. PEOCEEDINGS m CRIMINAL ACTIONS. 609 § 408. Proceedings, if jury disdiarged becanse tlie facts do not consti- tute an offense. It the jury be discharged, because the facts as charged do not constitute a crime, the court must order the defendant, if in custody, to be discharged therefrom, or if admitted to bail, that his bail be exonerated, or if he have deposited money instead of bail, that the money deposited be refunded to him, unless in its opinion a new indict- ment can be framed, upon which the defendant can be legallly convicted; in which case, it may direct that the case be resubmitted to the same or another grand jury. § 409. Same. If the court direct that the case be submitted anew, the same proceedings must bo had thereon aa are prescribed in sections 318 and 319. § 410. When evidence on either side is closed, court may advise acquittal, effect of the advice. If, at any time after the evidence on eithsr side is closed, the court deem it insuffi- cient to warrant a conviction, it may advise the jury to acquit the defendant and they must allow the advice. § 411. VieTV of premises, when ordered, and hour conducted. When, in the opinion of the court, it is proper that the jury should view the place in which the crime is charged to have been committed, or in which any material fact occurred, it may order the jury to be conducted, in a body, under charge of proper officers, to the place, which must be shown to them by a judge of the court, or by a person appointed by the court for that purpose. § 412. Duty of ofBcer as to jury. The officers, mentioned in the last section, must be sworn to suffer no person to speak to or communicate with the jury, nor to do so themselves, on any subject connected with the trial, and to return them into court without unnecessary delay, or at a specified time. § 413. Knowledge of juror, to he declared in court, and juror to he sworn as ^ritness. If a juror have any personal knowledge, respecting a fact in controversy in a cause, he must declare it in open court, during the trial. If, during the retirement of the jury, a juror declare a fact, which could be evidence in the cause, as of his own knowledge, the jury must return into court. In either of these cases, the juror mak- ing the statement must be sworn as a witness, and examined in the presence of the parties. § 414. Jurors may he permitted to separate during the trial; if kept together, oath of the o£acers. The jurors sworn to try an indictment may, at any time before the submission of the cause to the jury, in the discretion of the court, be permitted to separate, or l)e kept in charge of proper officers. Such officers must be sworn to keep the jurors together until the next meeting of the court, to suffer no person to speak to, or com- municate with them, nor to do so themselves, on any subject connected with the trial, and to return them into court at the next meeting thereof. § 415. Jurors not to converse together on the suhject of the trial nor form an opinion until the case is suhmitted. The jury must also, at each adjournment of the court, whether permitted to separate or kept in charge of officers, be admonished by the court, that it is their duty not to 39 610 CODE or CEIMINAL PEOCEDUEE. converse among tliemselvea on any Bubject connected with the trial, or to form or express any opinion tliereon, until the cause is finally submitted to them. S 416. Proceedings, wliere jnror becomes nnaMe to perfoxm his dnty before conclusion of trial. If, before the conclusion of the trial, a juror become sick, so as to be unable to perform his duty, the court may order him to be discharged, and another jury to be then or afterward impaneled. § 417. Court to decide q.nestion of law arising during trial. The court must decide all questions of law which arise in the course of the trial. § 418. On indictment for libel, jury to determine law and fact. On the trial of an indictment for libel, the jury have the right to determine the law and the fact. § 419. In all other cases, court to decide questions of law, subject to right of defendant to except. On the trial of an indictment for any other crime than libel, questions of law are to be decided by the court, saving the right of the defendant to except; questions of fact by the jury. And although the jury have tlie power to find a general verdict, which includes questions of law as well as of fact they are bound, nevertheless, to receive as law what is laid down as such by the court. § 420. Charge to jury. In charging the jury, the court must state to them, all matters of law which it thinks necessary for their- information in giving their verdict; and must, if requested, in addition to what it may deem its duty to say, inform the jury that they are tha exclusive judges of all questions of fact. § 421. Jury may decide in court, or retire in the custody of officers; oath of the officers. After hearing the charge, the jury may either decide in court, or may retire for deliberation. If they do not agree without retiring, one or more officers must be sworn, to keep them together in some private and convenient place, and not to permit any person to speak to or communicate with them, nor do so themselves, unless it be by order of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the court. § 422. When defendant on bail appears for trial, he may be committed. When a defendant, who has given bail, appears for trial, the court may, in ils discretion, at any time after his appearance for trial, order him to be committed 1,0 the custody of the proper oiBcer of the county, to abide the judgment or further order of the court; and he must be committed and held in custody accordingly. PEOCEEDINGS IN CEIMINAL ACTIONS. 611 CHAPTER II. CONDUCT OP THE JUEV, AFTBB THE CA.USE IS SUBUITTEO TO TUEM. [See section 62.] Section 423. Koom and accommodations for the jury after retirment, how provided. 424. Accommodations for the jury, when kept together during the trial, or after retirement. 425. What papers the jury may talfe with tliem. 426. Same. 427. May return into court, for information. 428. Wlien jury to be discharged before agreement. 429. Reason for discharge. 430. When jury discharged or prevented from giving a verdict, cause to be again tried. 431. Court may adjourn during absence of jury, as to other business, but deemed open till verdict rendered or jury discharged. 432. Final adjournment of court discharges jury. § 423. Room and accommodations for the jury after retirement, how provided. A room must be provided by the supervisors of the county (or if the trial be in a dty court, by the corporate authorities of the city), for the use of the jury, upon their retirement for deliberation, with suitable furniture, fuel, lights and stationery. If the supervisors or corporate authorities neglect this duty, the court may order the sheriff to perform it; and the expenses incurred by him in carrying the order into effect, when certified by the court, are a county charge. § 424. Accommodations for the jnry, irhen kept together dnring the trial, or after retirement. While the jury are kept together, either during the progress of the trial or after their retirement for deliberation, they must be provided by the sheriff, upon the order of the court, at the expense of the county (or if the trial be in the city court, at the expense of the city), with suitable and sufficient food and lodging. § 425. What papers the jury may take with them. The court may permit the jury, upon retiring for deliberation, to tpke with them any paper or article which has been received as evidence in the cause, but only upon the consent of the defendant and the counsel for the people. § 526. Same. The jury may also take with them notes of the testimony or other proceedings on the trial, taken by themselves or any of them, but none taken by any other person. § 427. May return into court, for information. After the jury have retired for deliberation, if there be a disagreement between them, as to any part of the testimony, or if they desire to be informed of a point of law- arising in the cause, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given after notice to the district attorney and to the counsel for the defendant, and in cases of felony, in the presence of the defendant. 612 CODE OF CKIMINAL PKOCEDUKE. § 428. When jury to be discharged lefore agreement. After tile jury have retired to consider of tlieii verdict, tliey can lie discliarged before tliey shall have agreed thereon only in the following cases: 1. Upon the occurrence of some injury or casualty affecting the defendant, the jury or some one of them, or the court, rendering it inexpedient to keep them longer together; or 2. When after the lapse of such time as shall seem reasonable to the court, Uicy shall declare themselves unable to agree upon a verdict; or 3. When vi'itli the leave of the court, the public prosecutor and the couusej for the defendant consent to such discharge. § 429. Reason for discharge. Whenever the jury is discharged without a verdict, the reason for the discharge must be entered on the minutes. § 430. When jury discharged or prevented from giving a verdict, canse to be again tried. In all cases where a jury are discharged, or prevented from giving a verdict, by reason of an accident or other cause, except where the defendant is discharged from the indictment, during the progress of the trial, or after the cause is submitted to them, the cause may be again tried at the same or another term. § 431. Coart may adjourn during absence of jnry, as to other business, but deemed open till verdict rendered or jnry discharged. While the jury are absent, the court may adjourn from time to time, as to other business; but it is nevertheless deemed open, for every purpose connected with the cause submitted to the jury, until a verdict is rendered or the jury discharged. § 432. Final adjournment of court discharges jury. A final adjournment of the court discharges the jury, but any term of a court may ■be continued for the purpose of finishing a trial or receiving a verdict. CHAPTER III. THE VERDICT. [See section 62.] Section 433. When the jury have agreed, to be brought into court and tiieir names called. If all do not appear, jury to be discharged and cause again tried. 434. In felony, defendant must be present. In misdemeanor, verdict may be rendered in his absence. 435. Manner of taking the verdict. 436. Verdict may be general or special. 437. General verdict. 438. Special verdict. 439. Special verdict, how rendered. 440. Same. 441. Special verdict, how brought to argument. 442. Judgment thereon. 443. When special verdict defective, new trial to be ordered. 444. Upon indictment for crime consisting of different degrees, jury may convict of any degree, or of any attempt to commit the crime. PEOCEEDINGS IN CKIMINAL ACTIONS. 613 Section 445. In other cases, jury may convict of any offense necessarily included in that charge. 446. On indictment against several, jury may render a verdict as to some, and the cause be again tried as to the others. 447. In what cases court may direct a reconsideration of the verdict. 448; Same. 449. When judgment may be given upon an informal verdict. 450. Polling the jury. 451. Recording the verdict. 452. Defendant, when to be discharged or detained after acquittal. 453. Proceedings upon general verdict of conviction, or a special verdict. 454. When defendant acquitted on the ground of insanity, the fact to he stated with the verdict; commitment of defendant to state lunatic asylum. § 433. When the jnry have agreed, to he hronght into court and their names called; if all do not appear, jury to he discharged and cause again tried. When the jury have agreed upon their verdict, they must be conducted into court by the officer having them in charge. Their names must then be called, and if all do not appear, the rest must be discharged without giving a verdict. In that event, the cause may be again tried, at the same or another term. § 434. In felony, defendant must be present; in misdemeanor, -verdict may he rendered in his absence. If the indictment be for a felony, the defendant must, before the verdict is received, appear in person. If it be for a misdemeanor, the verdict may be rendered in hia absence. § 435. Manner of taking the verdict. If the jury appear, they must be asked by the court or the clerk, whether they have agreed upon their verdict; and if the foreman answer in the affirmative, they must, on being required, declare the same. § 436. Verdict may be general or special. The jury may either render a general verdict, or when they are in doubt as to the legal effect of the facts proved, they may, except upon an indictment for libel, find a special verdict. § 437. General verdict. A general verdict upon a plea of not guilty is either "guilty" or "not guilty; " which imports a conviction or acquittal of the offense charged in the indictment. Upon a pica of a former conviction or acquittal of the same offense, it is either " for the people," or " for the defendant." § 438. Special verdict. A special verdict is that by which the jury find the facts only, leaving the judgment to tlie court. It must present the conclusions of fact, as established by the evidence, and not the evidence to prove them; and these conclusions of fact must be so pre- Bented, as that nothing remains to the court, but to draw from them conclusions of law. § 439. Special verdict, how rendered. The special verdict must be reduced to writing, by the jury or in their presence, entered upon the minutes of the court, read to the jury, and agreed to by them, before they are discharged. 614 CODE OF CEIMINAL PEOCEDUKE. § 440. Same. The special verdict need not be in any particular form but is sufficient, if it present intelligibly the facts found by the jury. § 441. Special verdict, boi7 lironght to argument. The special verdict may be brought to argument by either party, upon five days' notice to the other, at the same or another term of the court; and upon the hearing thereof, the counsel for the defendant may conclude the argument. § 442. Judgment thereon. The court must give judgment upon the special verdict,' as follows: 1. If the plea be not guilty, and the facts prove the defendant guilty of the offense charged in the indictment, or of any other offense of which he could be convicted, under that indictment, as provided in sections 444 and 445, judgment must be given accord- ingly; but if otherwise, judgment of acquittal must be given; 2. If the plea be a former conviction or acquittal of the same offense, the court must give judgment of conviction or acquittal, according as the facts prove or fail to prova the former conviction or acquittal. § 443. When special verdict defective, nev trial to be ordered. If tlie jury do not, in a special verdict, pronounce affirmatively or negatively on tlw facts necessary to enable the court to give judgment, or if they find the evidence of facts merely, and not the conclusions of fact from the evidence, as established to their satisfaction, the court must order a new trial. § 444. [Am'd, 1900.] Upon indictment for offense consisting of different degrees, jnry may convict of any degree, or of any attempt to commit the offense. Upon an indictment for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the crime. Upon a trial for murder or manslaughter, if the act complained of is not proven to be the cause of death, the defendant may be convicted of assault in any degree constituted by said act, and warranted by the evidence. A conviction Upon a charge of assault is not a bar to a subsequent prosecution for manslaughter or murder, the person assaulted dies after the conviction, in case death results from the injury caused by the assault. § 445t In other cases, jury may convict of any offense necessarily inclnded in that charge. In all other cases, the defendant may be found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indictment. § 446. On indictment against several, jnry may render a verdict as to some, and the cause he again tried as to the others. On an indictment against one or more, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment must be entered accordingly; and the case, as to the rest, may be tried by another jury. § 447. In ivhat cases court may direct a reconsideration of the verdict. When there is a verdict of conviction, in which it appears to the court that the jury have mistaljen the law, the court may explain the reason for that opinion, and direct PEOCEEDINGS IN CKIMINAL ACTIONS. 615 the jury to reconsider their verdict; and if, after the reconsideration, they return the eame verdict, it must be entered. But when there is a verdict of acquittal, the court cannot require the jury to reconsider it. § 448. Same. If the jury render a verdict which is neither a general or a special verdict, as defined in sections 437 and 438, the court may, with proper instructions as to the law, direct them to reconsider it; and it cannot be recorded, until it be rendered in some form, from which it can be clearly understood what is the intent of the jury, whether to render a general verdict, or to find the facts specially, and leave the judgment to the court. § 449. When judgment may be given npon an informal verdict. If the jury persist in finding an informal verdict, Irom which, however, it can be clearly understood, that their intention is to find in favor of the defendant, upon the issue, it must be entered in the terms in which it is found, and the court must give judgment of acquittal. But no judgment of conviction can be given, unless the jury expressly find against the defendant, upon the issue, or judgment be given against him on a special verdict. § 450. Polling the jnry. When a verdict is rendered, and before it is recorded, the jury may be polled, on the requirement of either party; in which case, they must be severally asked whether it is their verdict; and if any one answer in the negative, the jury must be sent out for further deliberation. TITLE VIII. OP THE FBOCEEDINGS AFTEE TKIAL AND BEFOEE JUDGMENT. CHAPTER IV. SUSPENSION OF JUDGMENT. § 470-a. Suspension of sentence; suspension of execution of judgment. If, after a plea or verdict of guilty or after a verdict against the defendant upon a plea of former conviction or acquittal, sentence shall have been suspended, the court may impose any sentence or make any commitment which might have been imposed or made at the time of conviction. If sentence shall have been imposed and execution of the whole or a part of the judgment suspended, the court may revoke the order sus- pending execution of judgment and order executed the judgment or the part thereof the execution of which shall have been suspended or may modify the judgment so as to provide for the imposition of any punishment which might have been imposed at the time of conviction. The court may impose sentence or order judgment executed with or without modifi- cation as hereinabove provided at any time after such suspension of sentence or suspen- sion of execution of judgment within the longest period for which the defendant might have been sentenced or, if the defendant is on probation and the period of probation exceeds the period for which the defendant might have been sentenced, at any time while the defendant remains on probation; but not after the expiration of such period or periods, unless the defendant shall have been convicted of another crime committed during such period. Provided, however, that the imprisonment directed by the judg- ment shall not be suspended or interrupted after such imprison:::ent shall have commenced. 616 CODE OF CKIMINAL PEOCEDUKE. § 470-b. Effect thereof. If judgment be not pronounced as in the last section provided, nevertheless: 1. For the purpose of indictment and conviction of a second offense, tlie plea or verdict and suspension of sentence or suspension of execution of the wliole or a part of the judgment after sentence shall be regarded as a conviction, and shall be pleaded according to the fact. 2. The said pica or verdict and suspension of sentence or suspension of execution of the whole or a part of the judgment after sentence may be proved in the miinuen provided by statute for proving a conviction for the purpose of affecting the weight of the defendant's testimony in any action or proceeding, civil or criminal. TITLE XII. OF MISCELLANEOUS rBOCEEDINOS. CUAFtEB I. Bail. II. Compelling the attendance of witnesses. III. Examination of witnesses, conditionally. IV. Examination of witnesses on commission. v. Inquiry into the insanity of the defendant, before or during the trial, or after conviction. VI. Compromising certain crimes, by leave of the court. CHAPTER I. Abticle I. In what cases the defendant may be admitted to bail. II. Bail, upon being held to answer, before indictment. III. Bail, upon an indictment, before conviction. IV. Bail, upon an appeal. V. Deposit, instead of bail. VI. Surrender of the defendant. VII. Forfeiture of the undertaking of bail, or of the deposit of money. VIII. Re-commitment of the defendant, after having given bail, or depusilttJ money instead of bail. ARTICLE I. IN WUAT CASES THE DEFENDANT MAT BE ADMITTED TO BAIL. Section 550. Admission to bail, defined. 551. Taking bail, defined. 552. Offenses not bailable. 553. In what cases defendant may be admitted to bail, before conviction. 554. Bail. 554ii. Bail of certain railroad employes. 555. Nature of bail before conviction. 556. Nature of bail after conviction and upon appeal. § 550. [Am'd, 1908, 1909.] Admission to bail, defined. When the defendant is held to appear for examination, bail for such appearance mny be taken either, 1. By the magistrate who issued the warrant or before whom the same is returnable, PEOCEEDINGS IN CEIMINAL ACTIONS. 617 or in case both of said magistrates are incapacitated or are absent from the jurisdiction, and in case tlie amount of bail sliall have been fixed by one or other of them, any otiier magistrate of like jurisdiction, or 2. By any judge of tlie supreme court, or 3. By any judge of tlie court of general sessions. § 551. Taking bail, defined. Tlio taking of bail consists in the acceptance, by a competent court or magistrate, of the undertaking of sufficient bail for the appearance of the defendant according to the terms of the undertaking, or that the bail will pay to the people of this state a specified sum. § 552. [Am'd, 1909.] Offenses not bailable. The defendant cannot be admitted to bail except by a justice of the supreme court or by a judge of the court of general sessions where he is charged, 1. With a crime punishable with death. 2. With the infliction of a probably fatal injury upon another, and under such circumstances, as that, if death ensue, the crime would be murder. g 553. In ivbat cases defendant be adn^itted to bail, before conviction. If the charge be for any other crime, he may be admitted to bail, before conviction, as follows: 1. As a matter of right, in cases of misdemeanor; 2. As a matter of discretion, in all other cases. § 554. [Am'd, 1896, 1903, 1S05, 1906, 1912.] In wbat cases be may be admitted to bail, before conviction, etc. Before conviction, defendant may be admitted to bail: 1. For his appearance before the magistrate on the examination of the charge, beforb being held to answer. 2. To appear at the court to which the magistrate is required by section two hundred and twenty-one to return the depositions and statements upon the defendant being held to answer after examination. 3. After indictment, either upon the bench warrant issued for his arrest or upon an order of the court committing liim or enlarging the amount of bail, or upon his being surrendered by his bail, to answer the indictment in the court in which it is found, or to which it may be sent or removed for trial. And any captain or sergeant of police, or acting sergeant of police, or lieutenant of po'ice, in any city or viHageof this state, must take bail for his appearance before a competent and accessible magistrate the next morning from any person arrested for a misdemeanor between eleven o'clock in the morning and eight o'clock the next morning, just as soon as the person offers himself as bail for the person or persons arrested. When such captain or sergeant of police, or acting sergeant of police, or lieutenant of police, takes bail, he must take it by an undertaking in the form in this section mentioned, executed in his presence by the defendant and at least one surety, who must justify under oath, or by the deposit of money or personal property accompanied by an oath of ownership, in the cases and in such manner as hereinafter provided; and for these purposes the officer may administer all necessary oaths. The amount of bail taken by a captain or sergeant of police or acting sergeant of police, or lieutenant of police, under tliis section, must be as follows: If the offense be the violation of a corporation ordinance, the amount of the bail must be one hundred dollars, except that if a conviction upon the charge would render the defendant liable only for a fine, the amount of the bail must be double the largest fine that could be imposed; if the conviction would render him liable to impris- 618 CODE OF CKIMINAL PEOCEDUEE. onment for thirty days or less, the amount of bail must be two hundred dollars; or, in such last mentioned case, it shall be in the discretion of such captain, sergeant of police, or acting sergeant of police, or lieutenant of police, to parole said prisoner, on his promise to appear on the following day before the proper magistrate. In all other cases the amount of bail must be five hundred dollars. In lieu of a bondsman, if the offense be the violation of a corporation ordinance where conviction renders the defend- ant liable to a fine only, he may give his personal undertaking, secured by a deposit ■with such captain or sergeant of police, or acting sergeant of police, or lieutenant of police, of money or personal property equal in value to double the laregst fine that can be imposed. If personal property, the person mailing or authorizing the deposit shall talte and subscribe aij oath, that he is the owner thereof, and authorized to make such deposit. A false oath in this particular is declared to be perjury and punishable accordingly. Money or personal property thus deposited conveniently transportablii shall be taken to the court, by the officer making the arrest, at the time defendant is lequired to appear and, upon the conditions of the undertaking being satisfied, it shall be restored to the defendant. If the deposit be personal property which cannot con- veniently be brought to court, the defendant shall be entitled to an order from the magistrate directing the delivery thereof to the owner after the conditions of the undertaking have been satisfied. The form of undertaking, with surety, must be as follows : We, A B, defendant, and residing at , in , and C D, surety, residing at , hereby jointly and severally undertake that the above A B, defendant, shall appear and answer the complaint (describing it briefly) before the magistrate before whom he would be arraigned if not bailed on the day of , eighteen hundred and ninety , and at o'clock, to answer to the complaint, and there remain to answer, subject to an order of the magistrate, and render himself in execution thereof, or if he fail to perform either of these conditions, then he will pay to the people of the state of New York the sum of dollars. The form of the personal undertaking, the deposit, shall be as follows : I, A B, defendant, residing at number street, in the of , hereby personally undertake and agree, that I will appear and answer to the complaint of violating the ordinances of the corporation of , to wit: (here briefly state charge) before the magistrate before whom I would be arraigned if not bailed, on the day of , eighteen hundred and ninety at o'clock in the noon, to answer to the complaint, and there remain to answer, subject to any order of the magistrate, and render myself in execution thereof, or if I fail to perform either of these conditions, then I will pay to the people of the state of New York the sum of dollars, to secure which payment there has been deposited herewith (if money, state amount; if personal property, briefly describe). Oath as to Owneeship. State op ) _ County of J being duly sworn, says, that he is the owner of -tlio personal property, mentioned and described In the foregoing undertaking, and is authorized to, and hereby does, pledge and deposit the same, as security for' the appearance of the defendant to answer the complaint made against him. Subscribed and sworn to before me 1 the day of 19. . J 4. Whenever a child under the age of sixteen years is arrested charged with juvemlo delinquency, a captain or lieutenant or sergeant of police, in any city may accept, m PEOCEEDINGS IN CKIMINAL ACTIONS. 619 lieu of bail, the personal recognizance in writing, without security, of a parent, guardian or otlier lawful custodian of such child, to produce such child before the proper court or magistrate on the following day, at a time and place to be specified in said recognizance; and thereupon he shall place said child in the care and custody of the person executing the same who, on failure to so produce said child, pursuant to the terms of such recognizance, shall be liable to punisliment by the court or magis- trate, as for a criminal contempt in the manner provided in the judiciary law. A similar recognizance may be taken by the court or magistrate for the subsequent production of such child at a time and place to be specified therein, pending the final termination of the proceedings, and noncompliance therewith shall subject the person giving the same to the same punishment. Such failure to produce the child shall in either case vacate the said recognizance and warrant the immediate arrest of the child by order of the court or magistrate. But nothing in this act contained shall authorize the acceptance of such personal recognizance for the production of a child who has been the subject of a crime or a witness to its commission by another. § 554-a. Bail of certain railroad employes. Whenever a person employed as an engineer, fireman, motorman, conductor, trainman or otherwise, on a train or car of a steam, elevated or street surface railroad, is arrested in any city on a criminal charge, arising from an accident in connection with the operation of such train or car, resulting in an injury or death to a person or injury to property, such engineer, fireman, motorman, conductor, trainman or other employe, shall be immediately taken before a magistrate, if one is accessible, and otherwise, before a captain or sergeant of police, or acting sergeant of police, or lieutenant of police, in charge of a police station in such city, and be given an opportunity to be admitted to bail. Such bail shall be taken in the same manner, so far as practicable, as is provided by section five hundred and fifty-four of this code, for the taking of bail in case of misdemeanors by a captain or sergeant of police, or acting sergeant of police, or lieutenant of police, in a city or village, except that the amount of bail shall be fixed by such officer at not exceeding one thousand dollars, and except tliat the under- taking shall provide for the appearance of the defendant before the magistrate, coroner, or other officer, who, except for this section, would be authorized to take such bail. Such officer may however in his discretion, instead of exacting bail, release s>ich employe on his own recognizance, conditional for Ilia appearance as above provided in case an undertaking is required. (Am'd by L. 1912, ch. 99, in effect April 3, 1912.) § 555. Nature of bail after conviction. After the conviction of a crime not punishable with death, a defendant who lias ajjpealed, and when there is a stay of proceedings, but not otherwise, may be admitted to bail: 1. As a matter of right, when the appeal is from a judgment imposing a fine only; 2. As a matter of discretion in all other cases. § 556. JKTatnre of bai^ after conviction and upon appeal. After conviction and upon an appeal, the defendant may be admitted to bail as follows : 1. If the appeal be from a judgment imposing a fine only, on the undertaking of bail, that he will pay the same, or such part of it as the appellate court may direct, if the judgment be affirmed or modified or the appeal be dismissed; or the certificate of reasonable doubt be vacated as provided in section five hundred and twenty-nine ; 2. jf judgment of imprisonment have been given, that he will surrender himself in execution of the judgment, upon its being affirmed or modified, or upon the appeal being dismissed, or if the certificate of reasonable doubt be vacated as aforesaid. (Am'd by L. 1897, ch. 427.) 620 OODE OF CEIMmAL PKOCEDUEE. ARTICLE II. BAIL, UPON BBINO UGLD TO ANSWEE, BEFOBI: INDICTMENT. Skction 557. By what courts or magistrates defendant may be admitted to bail. 558. Same. 550. At what time defendant may be admitted to bail by a magistrate. 560. In cities, if crime be felony, application for admission to bail must be on notice. 601. Form of order, if made by the court. 562. Form of order, if made by a magistrate. 663. If application be denied by a magistrate, no subsequent application can be made to another magistrate. 564. Violation of last section a misdemeanor. Admission to bail in such case, bow revoked or vacated. 565. Construction of last two sections. 566. Decision final. 567. Bail, by whom taken. 568. How put in ; and form of undertaking, 56!>. Qualifications of bail. 570. Bail, how to justify. 571. Same. 572. Same. 573. Bail may be examined as to sufficiency. 574. Othtr testimony may be received as to their sufficiency. 675. Decision as to their sufficiency; and filing affidavits of justification and undertaking. 576. On allowance of bail, and execution of undertaking, defendant to be dis- charged. Form ot discharge. 677. If bail disallowed. 577a. Bail by fidelity or surety company. S 557. By 'what courts or magistrates defendant may lie admitted to hail. When the defendant has been held to answer, as provided in section 208, the admission to bail may be by the magistrate by whom he is so held, if he be one of the magistrates mentioned in section 147, and the crime charged is a misdemeanor, or a felony punish- able with imprisonment, not exceeding five years; or if he be a judge ot the supreme court; or any judge authorized to preside in a court having jurisdiction to try indict- ments, in all cases where bail may be taken, lieforc conviction, as provided in sec. 554. § 558. Same. When, by reason of the degree ot the crime, the committing magistrate has not authority to admit to bail, the aefendant may be admitted to bail by one of the officers having authority to admit to bail in the case, as provided in the second subdivision of the last section, or by the court to which the depositions and statement are returned by the committing magistrate, as provided in section 231, if the case be triable therein, or if not, by the court to which after indictment, it may be sent or removed for trial. § 559. At what time defendant may he admitted to hall hy a magistrate. The defendant may be admitted to bail by a magistrate, as provided in the last two sections, upon being held to answer, or at any time before the return of the deposition PKOCEEDmGS IN" CEIMINAL iiCTIONS. 621 and statement, to the court. After that time he can be admitted to bail, only by a judge presiding in the court in which the crime is triable, if it be sitting, or if not, by one of the magistrates mentioned in the second subdivision of section 557. § 560. In cities, if crime be felony, application for admission to bail mnst be on notice. In the several cities of this state if the crime charged be a felony, the application for admission to bail must be upon notice of at least two days, to the district attorney of the county, unless the magistrate by order fixes a shorter time ; and the committing deposition and statement, or a copy thereof, to the court or magistrate to whom tho application for bail is to be made. § 561. Form of order, if made by tbo court. If the application be to the court, an order must be made, granting or denying it, and if it be granted, stating the sum in which bail may be taken. § 582. Form of order, if made by a magistrate. If the application be to a magistrate, he must certify, in writing, his decision granting or denying the same; and if ho grant the application, must state in the certificate the sum in which bail may be taken; which certificate he must cause to be forthwith filed with the clerk of the court to which the depositions and statement aro required to be sent. £ 563. If application be denied by a magistrate no subsequent application can be made to another magistrate. If an application for admission to bail, made to a magistrate, be denied, not moro than two subsequent applications therefor can be made to other magistrates, except that an application can be made to any magistrate mentioned in subdivision two of section 657, if no application has been previously made to a magistrate mentioned therein. § 564. Violation of last section a misdemeanor. Admission to bail in sucb case hoir revoked cr vacated. A violation of the last section is punisliable as a misdemeanor, and the admission of the defendant to bail contrary, thereto may be revoked by the magistrate who made it, or vacated by the court to which the depositions and statement are or must be sent, as provided in section 221, or to which, after indictment, the action must be sent for trial. § 565. Construction of last two sections. The provisions of the last two sections shall not be construed to limit the power of any judge presiding in the court in which the ofi'ense is triable to let the defendant to bail. § 566. Decision final. The decision of the judge presiding in the court in which the crime is triable, grant- ing or denying bail, is final, except as provided in section 563. § 567. [Am'd, 1904.] Bail, by wiom taken. If the defendant be admitted to bail by a magistrate, the bail may be taken by any magistrate in the county wherein the defendant is held to answer, as provided m section two hundred and eight. § 568. How put in; and form of undertakinB. Bail is put in bv written undertaking executed by sufficient surety [with or without the defendant, in the discretion of the magistrate] and acknowledged before the magis- trate in substantially the following form: 622 CODE OF CEIMINAL PROCEDUEE. "An order having been made on the day of eighteen hundred and , by A B, a justice of the peace of the town of [or as the case may be] that C D be held to answer upon a charge of [stating briefly the nature of the crime], upon which he has been duly admitted to bail in the sum of dollars. "We, C D, defendant, if the defendant join in the undertaking, of [stating his place of residence and occupation] and E F [and G H, stating place of residence and occupation], surety or sureties [as the case may be], hereby undertake jointly and severally, that the above-named C D, shall appear and answer the charge above men- tioned, in whatever court it may be prosecuted; and shall at all times render himself amenable to the orders and process of the court; and, if convicted, shall appear for judgment, and render himself in execution thereof; or if he fail to perform either of these conditions, that we will pay to the people of the state of New York the sum of dollars " [inserting the sum in which the defendant is admitted to bail]. § 569. Qualifications of bail. The qualifications of bail are as follows: 1. He must be a resident, and a householder or freeholder within the state, and, unless the magistrate otherwise direct, within the county; 2. He must be worth the amount specified in the undertaking, exclusive of properly exempt from execution; but the magistrate, on taking bail, may require two sureties, or may allow two or more to justify severally in amounts less than that expressed in the undertaking, if the whole justification be equivalent to that of one sufficient surety. § 570. Bail, bow to justify. Except as prescribed in the next section, the bail may, in the exercise of a just discretion, be taken, and may justify, witliout notice to the district attorney, or, reasonable notice of the intention to give bail may be required by the court or magis- trate, to be given to the district attorney. When given, the notice shall be as prescribed in the next section. § 571. Same. In several cities of this state, if the crime charged being a felony, a previous notu in writing of at least two days, of the time and place of giving the bail, must he served upon the district attorney of the county, stating: 1. The names, place of residence and occupations of the proposed surety or sureties; 2. A general description of the real or personal property of the surety or sureties, in respect to which they propose to justify as to their sufficiency, with the incumbrances thereon, by mortgage, judgment or otherwise, if any. The district attorney may waive the giving of the notice herein provided for, or a shorter time than two days may be directed by the court or magistrate requiring the notice. § 572. Same. The surety or sureties must in all cases justify by affidavit, taken before the magis- trate. The affidavit must state that each of the sureties possesses the qualifications provided in section 569. g 573. Bail may be examined as to sufficiency. The district attorney, or the magistrate, may thereupon further examine the suretins upon oath, concerning their sufficiency, in such manner as the magistrate may deem proper. The questions put to the sureties, and their answers must be reduced to writing, and must be subscribed by them. PKOCEEDINGS IN CRIMINAL ACTIONS. 623 § 574. Decision as to their snfSciency; and filing affidavits of justification and nndertaking. The magistrate may also receive other testimony, eitlier for or against the sufficiency of the bail, and may from time to time adjourn the taking of bail, to afford an oppor- tunity of proving or disproving its sufficiency. § 575. Order. When the examination is closed, the magistrate must make an order, either allowing or disallowing the bail, and must forthwith cause the same, with the affidavits of justification, and the undertaking of bail, to be filed with the clerk of the court to which the depositions and statement must be sent, as prescribed in section 221. § 576. On allo-nrance of bail, and ezeontion of nndertaking, defendant to be discharged; form of discharge. Upon the allowance of the bail and the execution of the undertaking, the court or magistrate must make an order, signed by him, with his name of office, for the discharge of the defendant, to the following effect: " To the sheriff of the county of [or, in the city and county of New York, ' to the keeper of the city prison of the city of New York '] : "A. B., who is detained by you on a commitment to answer a charge for the crime of [designating it generally], having given sufficient bail to answer the same, you are commanded forthwith to discharge him from your custody." § 577. Of bail disallowed. If the bail be disallowed, the defendant must be detained In custody until lawfully discharged. § 577-a. [Added, 1912.] Bail by fidelity or surety company. Bail may be given by a fidelity or surety company authorized to transact business within this state, and such company shall justify through its officers or attorney in the manner required by law of fidelity and surety companies. Any such company may execute the undertaking as surety by the hand of its officers or attorney, duly author- ized thereto by resolution of its board of directors, a certified copy of which, under its corporate seal, shall be filed with the undertaking. ARTICLE V. DEPOSIT INSTEAD OP BAIL. Section 586. Deposit, when and how made. 587. May be made after bail given, and before forfeiture; and in such case bail discharged. 588. Bail may be given after deposit; and in such case money deposited to be refunded. 589. Deposit to be applied to payment of judgment of fine, and surplus to be refunded. S 586. [Ain'd, 1912, 1913, 1918.] Deposit of money or liberty bonds, when and how made. The defendant, at any time after an order admitting him to bail, instead of giving bail, or a witness committed in default of an undertaking to appear and testify, instead of entering into such an undertaking, may deposit with the county treasurer of the county in which he is held to answer or appear, or in the city of New York with the 624 CODE OF CEIMINAL PROCEDUEE. chamberlain, or witli the magistrate by whom he' is so held, or with any other justice or magistrate of the same court or with the cleric or deputy clerk of a court lield by any such justice or magistrate, or with tlie warden, deputy warden or keeper in charge of the jail in which he so stands committed, the sum mentioned in the order of com- mitment, or a liberty bond or bonds in such denomination or denominations as to make that sum, and upon delivering to the officer in whose custody he is, a ceitifieate of such deposit from such justice, magistrate, c'crk or deputy clerk, or upon the said sum being deposited in money or bonds as aforesaid with raich warden, deputy warden or keeper in charge, the defendant must forthwith be discharged from custody. When any such deposit is so made, the justice, magistrate or other person with whom the money or bonds are deposited shall deposit the sum in money or bonds so received by him in the same manner as may be by law provided for the payment and deposit of money with the clerk of such court. Upon the termination of the proceeding the money or bonds so deposited shall, by order of the presiding justice or magistrate, be refunded to such defendant or witness. Whenever any person other than the defendant, or witness mentioned in this section, in behalf of the defendant, or witness, deposits with the person authorized to receive the same, the sum of money or bonds required to procure the discharge as aforesaid of said defendant, or witness, the defendant or witness may execute a consent that upon the termination of the proceeding in which the deposit is made, the money or bonds so deposited be refunded to the person depositing the same. Said consent shall be filed with the clerk of the court in which the proceeding is pending and upon the termination of the proceeding, the presiding justice or magistrate shall make an order directing the county treasurer, or in the city of New York the chamberlain, to refund the money or bonds deposited to the person making the deposit and tlie order directing such refund shall contain an endorsement by the clerk to the effect that such consent has been executed and filed. § 587. May be made after bail given, and before forfeitures; and in snch case bail discharged. If the defendant have given bail, he ma.y, at any time before the forfeiture of tlio undertaking, in like manner deposit the sum mentioned in the undertaking; and upon the deposit being made the bail is exonerated. § 588. Bail may be given after deposit; and in sncli case money deposited to be refunded. If money be deposited, as provided in the last section, bail may be given, in the same manner as if it had been originally given upon the order for admission to bail, at any time before the forfeiture of the deposit. The court or magistrate before whom tha bail is taken must thereupon direct, in the order of allowance, that the money deposited be refunded by the county treasurer to the defendant and it must be refunded accordingly. § 589. Deposit to be applied to payment of judgment of fine and surplus to be refunded. When money has been deposited, if it remain on deposit and unforfeited at the time of a judgment for tlie payment of a fine, the county treasurer must, under direction of the court, apply tlie money in satisfaction thereof, and after satisfying the fine, must refund the surplus, if any, to the defendant. PEOCEEDINGS IN CKIMINAL ACTIONS. 625 CHAPTER II. COMPELUNO THE ATTENDANCE OF WITNESSES. Section 607. Subpoena, defined. 608. Magistrate may issue subpoenas, on information or presentment. 609. District attorney may issue subpoenas for witnesses before grand jury. 610. He may also issue subpoenas, for the people, on trial of an indictment. 610a. Attendance of witnesses for people when trial postponed. 611. Clerk may issue blank subpoenas, for witnesses for defendant, on trial. 611a. General regulations concerning subpoenas. 612. Form of subpoena. 613. Kequirement in subpoena, to produce books, papers and documents. 614. Subpoena, by whom served. 615. How served. 615a. Subpoenaing witnesses in another county. 616. Fees of witnesses in behalf of 'the people. 617. Fees of defendant's witnesses. 618. Duty of witness, on service of subpoena. 618a. Subpoena of witnesses to testify in criminal actions without the state. 618b. Judge may order witness to enter into an undertaking for appearance or be committed on refusal to comply therewith. 619. Disobedience to subpoena, or refusal to be sworn or to testify, how punished. 619a. Punishment of witness for default in appearing pursuant to recognizance. 619b. Mileage fees for subpoena service. § 607. SnBpoena, defined. The process by which the attendance of a witness, before a court or magistrate is required, is a subpoena. § 608. Magistrate may issne snlipoeitas, for 'fitnesses before grand jnry. A magistrate, before whom an information is laid, may issue subpoenas, subscribed by him, for witnesses within the state, either on behalf of the people or of the defendant. § 611-a. [Added, 1909.] General regulations concerning snlipoenas. Whenever any magistrate shall Issue any subpoena in any criminal proceeding or trial, he~ shall endorse upon the back thereof a memorandum showing whether the same was issued for the people or for the prisoner; and every officer or other person who 6hall insert the name of witnesses in a subpoena issued for the people, intended for the prisoner, with intent thereby to deceive any person, or to obtain any pay as for services in subpoenaing witnesses for the people, shall be deemed guilty of a misdemeanor; and no such magistrate shall charge or be allowed for more than six subpoenas in any one criminal case, nor shall any board of supervisors allow any charge for issuing or serving any subpoena in any criminal case or proceeding issued or served on behalf of a defendant. § 612. Form of subpoena. A subpoena, authorized by the last four sections, must he substantially in llio following form: " In the name of the people of the state of New York: To A. B. "You are commanded to appear before O. D., a justice of the peace of the town of [or " the grand jury of the county of " or " the county 40 626 CODE OF CKIMmAL PKOCEDURE. court of the county of ," or as the case may be], at [naming the place], on [stating the day and hour], as a witness in a criminal action prosecuted by the people of the state of New York, against E. F. " Dated at the town of , [as the case may be], the day of 19... " G. H., justice of the peace," [or " I. K., district attorney," or " By order of the court, L. M., clerk," as the case may be] . § 613. [Am'd, 1897.] Requirement in snbpoena, to produce, etc. If chattels, books, papers or documents be required, a direction to the following effect must be contained in the subpoena: "And you are required also to bring with yoii the following" (describing intelligibly the chattels, books, papers or documents required). § 614. Subpoena, by whom served. A peace officer must serve, in his county, city, town or village, as the case may be, any subpoena delivered to him for service, either on the part of the people or of the defendant. And must make a written return of the service, subscribed by him, stating the time and place of service without delay. A subpoena may, however, be served by any other person. § 615. How served; A subpoena is served, by delivering it, or by showing it, and delivering a copy thereof, to the witness personally. § 615-a. [Added, 1909.] Subpoenaing -witnesses in another county. Whenever it shall become necessary to send subpoejias into another county for wit- nesses on criminal process, the district attorney is hereby empowered to send tliem to the sheriff of the county in which the said witnesses reside, whose duty it shall be to serve the same, and make his return without delay to such district attorney. § 619. [Am'd, 1909.] Disobedience to snbpoena, or refusal to be sworn or to testify, how punished. Disobedience to a subpoena, or a, refusal to be sworn or to testify, may be punished by the court or magistrate, as for a criminal contempt in the manner provided in the judiciary law. § 619-a. [Added, 1909.] Punishment of witness for default in appearing pursuant to recognizance. The court before which any witness on the part of the people in a criminal prosecu- tion shall have been recognized to appear, by recognizance taken before a magistrate or court of record having criminal jurisdiction, may proceed against such witness for any default in appearing, pursuant to the condition of his recognizance, by process of attachment, in the same manner and with like proceedings thereon as if such witness had failed to appear in disobedience to a subpoena; and the recognizance of such wit- ness, filed with the clerk of the court, if taken before a magistrate, or the record of the recognizance, if taken before a court of record, and the entry in the minutes of the clerk of the court of the default of such witness, shall be sufficient evidence for issuing such process of attachment. No district attorney shall receive any fee for issuing a subpoena for the appearance of any witness who shall have been recognized to appear in the same prosecution and at the same court designated in such subpoena. The issuing of an attachment against a witness pursuant to this section, shall not be a bar to the prosecution of his recognizance. PEOCEEDINGS IN CKIMINAL ACTIONS. 62T § 619-b. [Added, 1909.] Mileage fees for sabpoena service. Whenever a subpoena for witnesses in criminal cases or complaints, containing one or more names, shall be served by a constable or other officer, such officer shall be allowed for mileage only for the distance, going and returning, actually traveled to make such service upon all the witnesses in such a complaint, and not separate mileage for each witness, unless the board of supervisors auditing accounts for such services shall deem it equitable to make a further allowance. CHAPTER VI. COMPBOMISING CERTAIN CRIMES, BY LEAVE OF THE COUBX. Section 663. Certain crimes, for which party injured has a civil action, may be com- promised. 664. Compromise to be by permission of the court; order thereon, 665. Order, a bar to another prosecution. 666. No public offense to be compromised, except as provided in this chapter. § 663. Certain crimes for 'wbicH tlie party injured lias a civil action, may he compromised. When a defendant is brought before a magistrate, or held to answer on a charge of a misdemeanor, for which the person injured by the act constituting the crime has a remedy by civil action, the crime may be compromised, as provided in the next section, except when it was committed: 1. By or upon an officer of justice while in the execution of the duties of his office; 2. Riotously; or 3. With an intent to commit a felony. § 664. Compromise to be by permission of the conrt; order thereof. If the party injured appear before the magistrate, or before the court to which the depositions and statements are required, by section 231, to be returned at any time before trial or commitment by the magistrate, or trial on indictment for the crime and acknowledged in writing that he has received satisfaction for the injury, the magistrate or court may, in his or its discretion, on payment of the costs and expenses incurred, if such magistrate or court shall see lit so to direct, order all proceedings to be stayed upon the prosecution and the defendant be discharged therefrom, But in that case, the reason for the order must be set forth therein and entered upon the minutes. § 665. Order a bar to another prosecution. The order authorized by the last section is a bar to another prosecution for the same offense. § 666. No public offense to be compromised, except as provided in this chapter. No crime can be compromised, nor can any proceeding for the prosecution or punsh- ment thereof upon a compromise, be stayed, except as provided in sections 663 and 664. 628 CODE or CEIMINAL PKOCEDUEE. CHAPTEK IX. PBOCEEDINGS AGAINST COEPOEATIONS. Section 675. Summons upon an information or presentment against a corporation 1)y wliom issued, and wlien returnable. 676. Form of summons. , 677. When and how served. 678. Examination ot the charge. 679. Certificate of the magistrate, and return thereof with the depositions. 680. Grand jury may proceed as in the case of a natural person. 6S1. Appearance, and plea to indictment, and proceedings thereon. 682. Fine, ou conviction, how collected. § 675. Smnmoiis upon an information or presentment against a corpora- tion, by irhom issued, and ivlien returnable. Upon an information against a corporation, the magistrate must issue a summons, signed hy Mm, with his name of office, requiring the corporation to appear before him, at a specified time and place, to answer the charge; the time to be not less than tea days after the issuing of the summons. § 676. Form of the summons. The summons must be in substantially the following form: " County of Albany [or as the case may be]. " In the name of the people of the state of New York : " To the [naming the corporation]. " You are hereby summoned to appear before me, at [naming the place] on [specify- ing the day and hour], to answer the charge made against you, upon the information ot A. B., for [designating the offense, generally]. " Dated at the city [or town '] of , the > day of 19... "G. H., justice of the peace" [or as the case may be.] § 677. When and h.o\r served. The summons must be served at least five days before the day of appearance fixed therein, by delivering a copy thereof and showing the original to the president, or other head of the corporation, or to the secretary, cashier, or managing agent thereof. § 678. Examination of the charge. At the time appointed in the summons, the magistrate must proceed to investigate the charge, in the same manner as in the case of a natural person brought before him, so far as those proceedings are applicable. § 679< Certificate of the magistrate, and return thereof \rith the deposi- tion. After hearing \,>e proofs, the magistrate must certify upon the depositions, either that there is or is not sufficient cause to believe the corporation guilty of the offense chargeQ, ana must return the depositions and certificates, in the manner prescribed in section 221 § 680. Grand jury may proceed as in the case of a natural person. if the magistrate return a certificate that there is sufficient cause to believe tha corporation guilty of the offense charged, the grand jury may proceed thereon, as ia the case oi a natural person held to answer. PROCEEDINGS IN CEIMINAL ACTIONS. 629 CHAPTER X. ENTITLING AFFIDAVITS. Section 683. AfBdavits defectively entitled, valid. S 683. Affidavits defectively entitled, valid. It is not necessary to entitle an affidavit or deposition, in the action, whether taken before or after indictment, or upon an appeal; but if made without a title, or with an erroneous title, it is as valid and eflFectuaf for every purpose, as if it were duly entitled, if it intelligibly refer to the proceeding, indictment or appeal in which it is made. CHAPTER XI. . EBBOBS AND MISTAKES, IN PLEADINGS AND OTHEB PBQCEEDINGS. Section 694. Errors, etc., when not material. § 684. Errors, etc., vrhen not material. Keither a departure from the form or mode prescribed by this Code, in respect to any pleading or proceedings, nor an error or mistake therein, renders it invalid, unless it have actually prejudiced the defendant, or tend to his prejudice, in respect to a sutv Etantial right. CHAPTER XII. DISPOSAL OF PBOPEETY, STOLEN OB EMBEZZLED. Section 685. When property, alleged to be stolen or embezzled, comes into custody of peace ofJBcer. 686. Order for its delivery to owner. 687. When it comes into custody of magistrate, he must deliver it to owner, on proof of title and payment of expenses. 688. Court in which trial is held for stealing or embezzling it, may order it to be delivered to owner. 689. If not claimed in six months, to be delivered to county superintendent of the poor, or in New York, to commissioners of charities and correc- tions. 690. Receipt for money or property, taken from a person arrested for a public offense. 691. Duties of police clerks in the city of New York, etc. § 685. Wien property, alleged to be stolen or embezzled, come into custody of peace officer. When property, alleged to have been stolen or embezzled, comes into the custody of a peace officer, he must hold it, subject to the order of the magistrate authorized by the next section to direct the disposal thereof. § 686. Order for its delivery to owner. On satisfactory proof of the title of the owner of the property, the magistrate before whom the information is laid, or who examined the charge against the person accused of stealing or embezzling the property, may order it to be delivered to the 630 CODE OF CRIMINAL PEOCEDUEE. owner, unless its temporary retention be deemed necessary in furtherance of justice, on his paying the reasonable and necessary expenses incurred in its preservation, to be certified by the magistrate. The order entitles the owner to demand and receive the property. § 687. When it comes into custody of magistrate lie must deliver it to oxrneT, on proof of title and payment of expenses. If property stolen or embezzled come into the custody of a magistrate, it must, unless Its temporary retention be deemed necessary in furtherance of justice, be delivered to the owner, on satisfactory proof of his title, and on his paying the necessary expenses incurred in its preservation, to be certified by the magistrate. § 688. Court In which trial is had for stealing or embezzling it, may order it to be delivered to owner. If property stolen or embezzled have not been delivered to the owner, the court before which a trial is had for stealing or embezzling it, may, on proof of his title, order it to be restored to the owner. § 689. If not claimed in siz months to be delivered to county superintend- ent of the poor or in Neir ITork, to commissioners of charities, and corrections. If property stolen or embezzled be not claimed by the owner, before the expiration of BIX months from the conviction of a person for stealing or embezzling it, the magistrate or other officer having it in his custody must on payment of the necessary expenses incurred in its preservation, deliver it to the county superintendents of the poor, or in the city of New York, to the commissioners of charities and corrections, to be applied for the benefit of the poor of the county or city, as the case may be. § 690. Receipt of money or property, taken from a person arrested for a public offense. Except in the city of New York, when money or other property is taken from a defendant, arrested upon a charge of a crime, thei officer taking it must, at the time give duplicate receipts therefor, specifying particularly the amount of money or the kind of property taken; one of which receipts he must deliver to the defendant, and the other of which he must forthwith file with the clerk of the court to which the depositions and statement must be sent, as provided in section 221. § 691. Duties of police clerhs in the city of New Vorh, etc. The commissioners of police of the city of New York may designate some person to take charge of all property alleged to be stolen or embezzled, and which may be brought into the police office, and all property taken from the person of a prisoner, and may prescribe regulations in regard to the duties of the clerk, or clerks so desig- nated, and to require and take security for the faithful performance of the duties imposed by this section, and it shall be the duty of every officer into whose possession such property may come, to deliver the same forthwith to the person so designated. PART V. Of Pboceeoings in Coubis of Sfeoiai. Sessions and Police Codbib. TITLE I. — Of tlie Proceedings in Court of Special Sessions in the Counties other than New York. TITLE II. — Of the Proceedings in the Courts of Special Sessions in the City and County of New York. TITLE III. — Of Appeals from the Courts of Special Sessions. TITLE I. OF PEOCEEDINGS IN COUBTS OP SPECIAL SESSIONS IN THE COUNTIES OTHER THAN NEW YORK. Section 609. Charge to be read to defendant, and he required to plead. 700. The plea, and how put in. 701. Issue, how tried. 702. Defendant may demand a trial by jury. 703. Jury, how summoned. 704. Summoning the jury, and returning the list 705. Depositing ballots in box. 706. Drawing the jury. 707. Challenges. 708. Talesmen, when and how ordered and summoned. 709. Punishing officer for not returning list, and issuing new order for jury. 710. Jury, how constituted. 711. Their oath. 712. Trial, how conducted. 713. Jury may decide in court, or retire; oath of oflScer on their retirement. 714. Delivering verdict, and entry thereof. 715. Discharge of the jury without verdict. 716. In such case, cause to be re-tried. 717. Judgment on conviction. 718. Judgment of imprisonment, until fine be paid; extent of imprisonment. 719. Defendant, on acquittal, to be discharged; order that prosecutor pay the costs. 720. Judgment against prosecutor for costs. 721. 722. Certificate of conviction; its form. 723. Certificate, when filed. 724. Certificate, conclusive evidence. 725. Judgment, by whom executed. 726. Fine, by whom received before commitment, and how applied. 726, Fine, to whom paid after commitment, and how applied. 728. Proceedings against magistrate or sheriff, on neglect to pay fine to BOptr- visor. 739. Subpoenas for witnesses, and punishing them for disobedience. 730. Punishing jurors for. non-attendance. 731. No fees to jurors or witnesses. 732. When defendant requests a trial by police court, preliminary examination dispensed with. 631 632 CODE OF CEIMHsTAL PKOCEDUKE. 733. During time allowed for bail, and until judgment, defendant to be con- tinued in custody of officer, or committed to jail. 734. Form of commitment. 735. By whom executed. 736. Defendant may be admitted to bail. 737. Bail, how and by whom taken, 738. Form of the undertaking. 739. Undertaking, when forfeited, and action thereon. 740. Forfeiture, how and by whom remitted. 740a. Fees of justices of the peace in criminal cases. 740b. Fees of constables in criminal cases. § 699. Charge to be read to defendant, and lie reqnired to plead. In the cases in which the courts of special sessions or police courts have jurisdiction, wlien the defendant is brought before the magistrate, the charge against him must be distinctly read to him, and he must be required to plead thereto. § 700. The plea, and how put in. The defendant may plead t!ie same pleas as upon an indictment, as provided in sec- tion 332. His plea must be oral, and entered upon the minutes of the court. § 701. Issne, how tried. Upon a plea other than a plea of guilty, if the defendant do not demand a trial by jury, the court must proceed to try the issue. § 702. Defendant may demand a trial by jury. Before the court hears any testimony upon the trial, the defendant may demand a trial by jury. § 703. [Am'd, 1893.] Jury, how summoned. If a trial by jury be demanded, the court must forthwith draw from the box or other receptacle kept and used in accordance with the requirements of the code of civil procedure, relative to the drawing of jurors in justice courts in civil cases, twelve of the ballots provided for in section twenty-nine hundred and ninety and twenty-nine hundred and nine-one of the code of civil procedure to be kept and used by justices of the peace in civil cases. If a person whose name is thus drawn, shall, in the opinion of the court, reside more than three miles from the place where the said issue is to be tried, the court may set aside such juror, and in that case draw another ballot and so can continue until twelve be drawn to serve as jurors. The court must thereupon insert the names of the persons so drawn in an order directed to any constable of the county, or marshial or police officer of the city or village where the offense is to be tried and having authority to execute process of the court, commanding him to summon the person therein named to appear before the said court at a time not more than three days from the time of the making of said order, unless the trial of said issue be longer adjourned by consent and at a place named therein, to constitute a jury for the trial of the alleged offense. It shall be the duty of every town or city clerk in this state, within ten days after the taking effect of this act, to make and deliver to every recorder, police justice or other judicial officer having authority to hold courts of special sessions in their respective towns or cities in. accordance with the provisions of this title, a certiiied copy of the jury list as is now required by section twenty-nino hundred and ninety of the code of civil procedure to be furnished by them to the justices of the peace in their various towns and cities for the drawing of jurors in civil actions, and any such clerk neglecting or refusing so to do shall be deemed guilty of a PROCEEDINGS IN COUETS OF SPECIAL SESSIONS. 633 misdemeanor. The boxes or other receptacles now used by justices of the peace for the purpose of drawing jurors in civil cases shall be used by them for drawing jurors to serve in courts of special sessions as herein provided, and recorders, police justices and other judicial officers empowered to hold such courts of special sessions, as pro- vided by this title, are hereby required to procure and use the same in the manner provided by this section. § 704, [Am'd, 1893.] Euiuinoning jury, and returning order. Tlie Court must deliver, or cause to be delivered, the said order to any officer to whom the same is directed and empowered to execute the same. The officer to whom said order is so delivered must thereupon summon personally each of the persons drawn and named therein to serve as such jurors by exhibiting to them the said order and at the same time reading to or stating to them the substance thereof. He shall then make his return to said order, certifying that he personally served it upon each of the persons named therein and in eacli case of his being unable to do so the reason thereof. Any person so summoned not attending at the time and place and not having sufficient legal excuse for doing so, specified in said order, is hereby declared guilty of contempt of court and is punishable by a fine not exceeding fifty dollars or imprison- ment not more than thirty days, or by both such fine and imprisonment. § 705. Depositing ballots in box. The names of the persons returned as jurors must be written on separate ballots, folded as nearly alike as possible, so that the name cannot be seen, and must, under the direction of the court, be deposited in a box, or other convenient thing. § 706. Drawing the jury. The court must then draw out six of the ballots, successively; and if any of the per- sons whose names are drawn do not appear, or are challenged and set aside, such further number must be drawn as will make a jury of six, after all legal challenges have been allowed. § 707. Cballenges. The same challenges may be taken by either party, to the panel of jurors, or to an individual juror; as on the trial of an indictment for a misdemeanor, so far as appli- cable; and the challenge must, in all cases, be tried by the court. § 708. Talesman, when and hotr ordered and summoned. If six of the jurors summoned do not attend, or be not obtained, the court may direct the officer to summon any of the bystanders, or others, who may be competent, and against whom there is no sufficient cause of challenge, to act as jurors. § 709, Punishing officer for not returning list, and issuing ne-w order for jury. If the officer to whom the order is delivered do not return it, as required by section 704, he may be punished by the court, as for contempt; and the court must issue a new order for the summoning of jurors, in substantially the same form; upon which the same proceedings must be had as upon the one first issued. § 710. Jury, how constituted. When six jurors appear and are accepted, they constitute the jury. S 711. Their oath. The Court must thereupon administer to the jury the following oath or affirmation: " Vou do ' swear ' [or ' you do solemnly affirm,' " as the case may be] " that you will 634 CODE OF CKIMINAL PKOCEDUKE. well and truly try this issue, between tlie people of the state of New York and A. B., the defendant, and a true verdict give, acxsording to the evidence." § 712. Trial, how conducted. After the jury are sworn, they must sit together and hear the proofs and allega- tions of the parties, which must be deliveerd in public, and in the presence of the defendant. § 713. Jury may decide in conrt, or retire; oath of officer on their retirement. After hearing the proofs and allegations, the jury may either decide in court or may retire for consideration. If they do not immediately agree, an officer must be sworn to the following: "You do swear, that you will keep this jury together in some private and convenient place, without food or drink, except bread and water, unless otherwise ordered by the court; that you will not permit any person to speak to or communicate with them, nor do so yourself, unless it be to ask them whether they have agreed upon a verdict; and that you will return them into the court when they have so agreed, or when ordered by the court." § 714. Deli-rering verdict, and entry thereof. When the jury have agreed on their verdict, they must deliver it publicly to the court, which must enter it in its minutes. § 715. Discharge of jnry irithont verdict. The jury cannot be discharged after the cause is submitted to them, until they have agreed upon and rendered their verdict, unless, for some cause within the meaning of sections 428 and 429, the court sooner discharge them. § 716. In such case, cause to he tried. If the jury be discharged, as provided in the last section, the court may proceed again to the trial, in the same manner as upon the first trial; and so on, until a verdict is rendeerd. § 717. Judgment on con-riction. When the defendant pleads guilty, or is convicted either by the court or by a jury, the court must render judgment thereon, of fine or imprisonment, or both, as the case may require; but the fine cannot exceed fifty dollars, nor the imprisonment six months. § 718. [Am'd, 1910.] Judgment of imprisonment, until fine be paid^, extent of imprisonment; probation; restitution. A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied; specifying the extent of the imprisonment, which cannot exceed one day for every one dollar of the fine. The court may require a defendant to pay a fine or restitution, or to make reparation, as provided in subdivision two of section four hundred and eighty-three. g 719. Defendant, on acquittal, to be discharged; order that prosecutor pay the costs. When the defendant is acquitted, either by the court or by the jury, he must be immediately discharged; and if the court certify, upon its minutes, or the jury find that the prosecution was malicious or without probable cause the court must order the prosecutor to pay the costs of the proceedings, or to give satisfactory security PEOOEEDIJSTGS IN COUKTS OF SPECIAL SESSIONS. 635 by written undertaking, with one or more sureties, to pay the same to the county within thirty days after the trial. § 720. [Am'd, 1890.] Judgment against prosecutor for costs. If the prosecutor do not pay the costs or give security therefor, the court may enter judgment against him for the amount thereof, which may be enforced and appealed from, in all respects, in the same manner as a judgment rendered by a justice court held by a justice of the peace. § 721. Certificate of conviction; its form. When a conviction is had upon a plea of guilty, or upon a trial, the court must mako and sign a certificate in substantially the following form: " Court of special sessions or police court. " County of Albany, town of Berne [or as the case may be]. The People of the State of New York against A.B. January 1, 19 . . . " The above named A. B., having been brought before C. D., justice of special sessions, justice of the peace [or other magistrate as the case may be] or police justice of the town [or city or village] of [as the case may be] charged with [briefly designating the ofFense.] " And, having thereupon pleaded guilty or not guilty [or as the case may be] and demanded [or, 'failed to demand' as the case may be], a jury, and having been there; upon duly tried, and upon such trial duly convicted. It is adjudged that he be im- prisoned in the jail of this county days [or ' pay a fine of dollars and be imprisoned until it be paid, not exceeding days,' or both as the case may be.] " Dated at the town [or ' city '] of , the day of , 19 . „ C. D., justice of the peace or police justice or other magistrate [as the case may be] of the town [or ' city '] of [as the case may be] ." § 722. Same. If the defendant have pleaded guilty — instead of the second paragraph, the certifi- cate must state substantially as follows: "And the above named A. B. having been thereupon duly convicted, upon a plea of guilty." § 723. Certificate, when filed. Within twenty days after the conviction, the court must cause the certificate to be filed in the office of the clerk of the county. § 724. Certificate, conclusive evidence. The certificate, made and filed as prescribed in the last two sections, or a certified copy thereof, is conclusive evidence of the facts stated therein. § 725. Judgment, by ivhom executed. The judgment must be executed by the sheriff of the county, or by a constable, marshal or policeman of the city, village or town in which the conviction is had, upon receiving a copy of the certificate prescribed in section 721, certified by the court or the county clerk. 636 CODE OF CEIMINAL PEOCEDUKE. § 726. [Am'd, 1895.] Fine, by wbom received before commitment, and how applied. If a fine imposed be paid before commitment it must be received by the court, and within thirty days after its receipt, paid by such court to the supervisors of the town in and for which such court is held. § 727. [Am'd, 1895.] Fine, to whom paid after commitment, and how applied. If the defendant be committed for not paying a fine, he may pay to the sheriff of the county, but to no other person, who must in like manner within thirty days after the receipt thereof, pay the same to the supervisor of the town in and for which such court is held. § 'i 28. [Am'd, 1865.] Froceeolinss against magistrate or sheriff on neglect to pay fine to supervisor. If the court or sheriff receiveiiig tlie fine fail to pay to the supervisor, as provided iu the last two sections, such supervisor must immediately commence an action therefor against the sheriff, or the magistrate or magistrates composing the court in the name of his town. § 729. Subpoena for witnesses, and punishing them for disobedience. The court may issue subpoanas for witnesses, as provided in section 608, and punish disobedience thereof, as provided in section 619. § 730. Punishing jurors for non-attendance. If a person summoned as a juror fail to appear, he may be punished by a fine not exceeding five dollars imposed by the court, by an order entered in his minutes. The order is deemed a judgment, in a.l respects, in favor of the poor of the town or city. § 731. No fees to jurors cr witnesses. No fees are payable to a juror or witness, for his service or attendance in a court of special sessions. § 732. 'When defendant requests a trial by police court, preliminary ex- amination clispensed w^ith. When the defendant, upon being brought before the magistrate, requests a trial by a court of special sessions, the preliminary examination of the case is dispensed with. § 733. During tiuLe allowed for bail, and until judgment, defendant to be continued in custody of oficer or committed to jail. During the time allowed to the defendant to give bail, and until judgment is given, he may be continued in the custody of the officer, or committed to the jail of the county to answer the charge, as the magistrate may direct. § 734. Form of commitment. The commitment must be signed by the magistrate, by his name of ofSce, and must be in substantially the following forfti: " The sheriff of the county of , is required to receive and detain A. B., who stands charged before me for [designating the offense, generally], to answer the charge before a court of special sessions in the town [or city] of [as the cas9 may be]. " Dated at the town [or city] of , the day of , 19. .. " C. D., justice of the peace of the town [or city] of " [as the case may be]. PEOOEEDINGS IN COUETS OF SPECIAL SESSIONS. 63Y §' 735. By wlioiii executed. When committed, the defendant must be delivered to the custody of the proper officer, by any peace officer in the county to whom the magistrate may deliver the commitment. § 736. Defendant may be admitted to bail. Either before or after his committal, or upon being committed, the defendant must, if he require, be admitted to bail. § 737. Bail, lio-nr and by -chom taken. The bail must be taken by the magistrate, by a written undertaking, executed by the defendant, with one or more sufficient sureties approved by the magistrate, in a sum not exceeding $200. § 738. Form of tbe undertaking. The undertalcing must be in substantially the following form : "A. B., having been duly charged before C. D., a justice of the peace in the town [or city] of [as the case may be], with the offense of [designating the offense generally], we undertake jointly and severally that he shall appear thereon from time to time, until judgment, at a court of special sessions in the town or village [or . city] of [as the case may be], competent to try the case, or that he will pay to the county of [naming the county in which the court is held], the sum of dollars [inserting the sum fixed by the magistrate]. " Dated at the town [or city] of , [as the case may be]." § 739. Undertaking, -when forfeited, and action thereon. If the defendant fail to appear according to the undertaking, the court, unless a sufficient excuse be shown, must declare the undertaking of bail forfeited, and the county treasurer must immediately commence an action for the recovery of the sum mentioned therein, in the name of the cuunty. § 740. Forfeiture, how and by whom remitted. • The county court of the county, or in the city of New York, the supreme court, may remit the forfeiture or any part thereof, in the cases and in the manner provided in the code of civil procedure. § 740-a. [Am'd, 1909, 1918.] Fees of justices of the peace in criminal cases. Justices of the peace in the state shall hereafter be allowed and entitled to receive the fees hereinafter stated for the following named services in criminal cases: For administering an oath, ten cents; drawing an information, fifty cents; taking a deposi- tion of witness on an information before warrant is issued or examination thereafter, twenty-five cents; examination of information and depositions and issuing a warrant of arrest, fifty cents; indorsing warrant from another county, twenty-five cents; for each day's necessary attendance when defendant is in court after arrest, one dollar and fifty cents; every necessary adjournment, twenty-five cents; a subpoena, including all the names inserted therein, twenty-five cents, and each copy subpoena for service, ten cents; for filing each paper required by law, five cents; for furnishing copies of papers in any proceeding, at the rate of ten cents per folio of one hundred words; for each application, order in writing, certificate or report, or other paper to be filed or copies thereof, required by law, twenty-five cents; drawing an undertaking of bail, fifty cents; taking an acknowledgment, twenty-five cents; return and filing papers in county clerk's office when defendant is held to answer, one dollar. For a venire, twenty-five cents; swearing each witness on the trial, ten cents; swear- 638 CODE OF CKIMINAL PKOCEDUKE ing a jury, twenty-five cents; swearing a constable to attend a jury, twenty-five cents; for a trial fee, one dollar and fifty cents per day for each day defendant is in court; receiving and entering verdict of jury, twenty-five cents; entering the sentence or adjudication of the court, twenty-five cents; temporary commitment, twenty-five cents; warrant of commitment on sentence, twenty-five cents; for record of conviction and filing the same, one dollar; but all such charges in any one case shall not exceed five dollars, unless such court continue more than one day; in such case the costs of such additional day may be added thereto; for return to any appeal, to be paid by the county, two dollars; for services when associated with another justice of the peace or police justice or in cases of bastardy, for each day defendant is in court, two dollars; for application and license to carry concealed weapons, to be paid by the person apply- ing for and receiving same, one dollar and fifty cents. § 740-1). [Am'd, 1920.] Fees of constables in criminal cases. Constables shall hereafter be allowed the fees hereinafter stated for the following services in criminal cases: For the execution of a warrant of arrest and making an arrest thereunder, one dollar and fifty cents; for making an arrest without a warrant, one dollar; for every mile traveled, going and returning in serving a warrant or making an arrest, fifteen cents; for taking the defendant into custody on a commit- ment, fifty cents; for every mile traveled in taking a prisoner to jail, going and returning, fifteen cents; for serving every subpoena, fifty cents; for every mile traveled in serving each subpoena, going and returning, fifteen cents; for notifying a complainant, fifty cents; for every mile traveled in notifying a complainant, going and returning, fifteen cents; for keeping a prisoner in custody, after being brought before the justice, and by his direction, three dollars per day; for taking charge of a jury during its deliberation, one dollar; for attending any court, pursuant to a notice from a sheriiT for that purpose, a fee of each day's actual attendance in any county in the state, to be fixed by the board of supervisors thereof and mileage as allowed by law to trial jurors in courts of record, which fees shall be chargeable to the county and shall be paid by the treasurer thereof in the same manner as the fees of other court officers are paid. TITLE II. OF THE PEOCBEDINGS IN THE OOUETS OF SPECIAI, SESSIONS IN THE CITY OF NEW TOEK. [Am'd L. 1904, ch. 563.] Section 741. Courts of special sessions in the city of New York to proceed as pre- scribed in last title, except as otherwise specially provided. 742. Trial by and form of information. 743. Duty of district attorney in relation to the information and dismissal of prosecution. 744. Clerk to issue subpoena, sign certificate of judgment, and enter proceed- ings of court and sentences upon convictions. 745. Fines before committal, to be paid to clerk; his accounts, when and to whom rendered. 746. No transcript of conviction to be filed; certified copy of minutes, con- clusive evidence. § 741. [Am'd, 1904.] Courts of special sessions in the city of New York, to proceed as prescribed in last title, except as otherwise specially provided. Thj courts of special sessions, in the city of New York, must proceed upon a criminal charge in the manner prescribed in the last title, except as provided in the next five sections, and as otherwise specially provided. PEOCEEDINGS IN COUKTS OF SPECIAL SESSIONS. 639 § 742. [Am'd, 1904.] Trial by and form of information. All criminal actions in the courts of special sessions in the city of New York, except in the part devoted to the trial of children under sixteen years of age and known as children's courts, must be prosecuted by information made by the district attorney. The information shall be signed by the district attorney of the county wherein the action was begun and may be substantially in the following form : Court of Special Sessions of the City of New York, Division. The People of the State of New York against A. B. Be it remembered that I the District Attorney of the County of , by this information accuse A. B. of the crime (here insert the name of tho crime if it have one, such as petit larceny, assault in the third degree, or the like, or if it have no genreal name insert a brief description of it as it is given by the statute) committed as follows: The said A. B., on the day of , 19 . . , at the City of New York, in the County of (here set forth the act charged as an offense.) CD., District Attorney of the County« of § 743. [Am'd, 1904.] Duty of district attorney in relation to the informa/> tion and dismissal of prosecution. The district attorney of a county wi+l:in the city of New York, on the receipt by him of the papers in a criminal action, returned to him by a magistrate as provided by section two hundred and twenty-one hereof, shall either make and file with the clerk of the court of sp'jcial sessions an information against the defendant in such action, as provided in the last preceding section, or, move in said court for the dismissal of the prosecution of the action. This duty, unless the time prescribed therefor be ex- tended by the court, shall be performed in manner following: . 1. Where a defendant is in custody the information shall be filed not later than the day following the receipt by the district attorney of the magistrate's return, and in all other eases within ten days thereafter. 2. In all actions where return has been made to the district attorney as required by section two hundred and twenty-one of this code, and be has failed to make and file an information as provided in subdivision one of this section, he shall, within thirty days after such return, move ior tho dismissal of the prosecution of such action, filing with the clerk of the court a statement in writing of his reasons for making such motion. 3. The district attorney shall file with the clerk of the court all papers returned to him under the provisions of section two hundred and twenty-one of this code, those upon which informations are based and with the informations and all others when ho moves to dismiss the prosecution of the action in which they were taken. § 744. [Am'd, 1904.] Clerk to issue subpoenas, sign certificate of judg- ment, and enter proceedings of court and sentences upon convictions. Subpoenas for witnesses, and the certificate of the judgment, must be signed by the clerk of the court, who must also enter all the proceedings of the court, and the sen- tences upon convictions, in a book of minutes, and when necessary, certify the proceed- ings of the court. 640 CODE OF CEIMINAL PKOCEDUEE. § 745. [Am'd, 1904.] Fines before committal, to be paid to clerk; his acconnts, \rlieii and to ivhom rendered. Fines, imposed by the court, must be received by the clerk, if paid before committal in execution of judgment. He must, every thirty days, render to the comptroller of the city, accounts of the fines imposed and received by him, and of the expenses attending tlie court. § 746. [Am'd, 1904.] No transcript of conviction to be filed; certified copy of minutes, conclusive evidence. No transcript of a conviction, had in a court of special sessions in the city of New York, need be certified or filed ; but a copy of the minutes of the conviction, certified bj the clerk, is conclusive evidence of the facts contained therein. TITLE III. OF APPEALS FBOM COUKTS OP SPECIAL SESSIONS. Section 749. Judgment of special sessions, reviewable only upon appeal. ■ 750. Appeal, for what causes allowed; what deemed a final judgment. 751. Appeal, how taken. 752. How 'allowed. 753. Discharge of defendant from custody, upon undertaking. 754. Undertaking, when and with whom filed. 755. Delivery of aflSdavit, and al'-owance of appeal, to magistrate or clerk of police court,, within five days after allowance. 756. Return, when and how made. 757. Compelling return. 758. Ordering and compelling further or amended return. 759. Appeal, by whom and how brought to argument. 760. If not brought to argument, as provided in last section, to be dismissed, unless continued for cause shown. 761. Service of return on district attorney, and consequences of failure. 762. If brought to hearing by defendant, appeal must be argued, though no one opposes, etc. 763. Appeal to be heard on original return. 764. What judgment may be rendered. 765. Judgment to be entered on the minutes. 766. Order upon judgment for aiBrmance. 767. Order upon judgment of reversal. 768. If new trial ordered, to be had in court of sessions; proceedings thereon. 769. Proceedings to carry judgment upon appeal into effect, to b^ had in county court. 770. On judgment of county court, defendant may appeal to supremo court; his admission to bail. 771. Judgment of supreme court upon appeal, final. 772. Proceedings to carry into effect judgment of supreme court. § 749. [Am'd, 1909.] Reviev on appeal from minor conrtSa A judgment upon conviction, rendered by a court of special sessions, police court, police magistrate, or justice of the peace, in any criminal action or proceedings or special proceeding of a criminal nature, including a judgment of commitment made under section tour hundred and eighty-six of the penal law, may be reviewed by the PKOCEEDINGS m COUETS OF SPECIAL SESSIONS. 641 county court of the county, upon an appeal as prescribed by this title, and not other- wise; and any appeals heretofore taken and allowed from a judgment of any police court or police magistrate in the manner that appeals are directed to be taken and allowed by this title, and now pending undetermined in any court of this state, are hereby declared to be legal and valid and of the same force and effect as if taken after the passage of this act. An appeal from a judgment of commitment made under section four hundred and eighty-six of the penal law may be allowed to any person having, previous to such commitment, a right to the custody of the child; but upon such appeal, in addition to the notice and papers required by this title to he served on f.ppeals in criminal actions, notice of all proceedings and copies of the affidavit and allowance of appeal therein must be served upon the institution named in the commit- ment, and upon the society mentioned in section four hundred and ninety of the penal law, if there be one within tlie county. Such institution and society, or either, shall have the right to move, to argue, or dismiss and to be heard upon the argument of such appeal; and shall have the like right to appeal from the judgment of the county court of the county to the supreme court as is conferred by section seven hundred and seventy of this code upon a defendant, and to the court of appeals by section five hundred and nineteen of this code; and pending any appeal and until the final determination thereof the child named in the commitment must remain in the custody of the institution therein specified. § 750. [Am'd, 1907.] Appeal, for irhat causes alloired; irhat deemed a final judgment. An appeal may be allowed for an erroneous decision or determination of law or fact upon the trial and for the purposes of an appeal in all cases now pending or hereafter brought, a conviction for a criminal offense shall be deemed a final judgment although sentence shall have been suspended by the court in which the trial was had or otherwise suspended or stayed. § 751. [Am'd, 1897.] Appeal, how taken. For the purpose of appealing, the defendant, or some one on his behalf, must within sixty days after the judgment, or within sixty days after the commitment where the appeal is from the latter, make an affidavit showing the alleged errors in the proceed- ings or conviction or commitment complained of, and must within that time present it to the county judge or justice of the supreme court, or in the city and county of New York, to the recorder or a judge authorized to hold a court of general sessions in that city or in the city of Albany, to the recorder, and apply therein for the allowance of the appeal. § 752. [Am'd, 1897.] How allowed. If, in the opinion of the judge, it is proper that the question arising on the appeal should be decided by the county court, he must indorse on the affidavit an allowance of the appeal to that court; and the defendant, or his attorney, must within five days thereafter, serve a copy of the affidavit upon which the appeal is granted, together with a notice that the same has been allowed, upon the district attorney of the county in which the appeal is to be heard. § 753. [Am'd, 1892.] Discliarge of defendant from custody, upon nnder- tahing. Upon allowing the appeal if satisfied that there is a reasonable doubt whether the conviction should stand, but not otherwise, the judge may take from the defendant a written undertaking with such sureties as he may approve, that the defendant will abide the judgment of the county court upon the appeal, and may thereupon order that 41 642 CODE OF CHIMIN AL PKOCEDUEE. he be discharged from imprisonment on service of the order, upon the oflScer having him in custody, or if he he not in custody that all proceedings on the judgment be stayed. § 754. [Am'd, 1897.] Undertaking, when and with whom filed. The undertaking upon the appeal must be immediately filed with the clerk of the county court, find the said clerk of the county court shall within five days thereafter, give notice to the district attorney of the county that such bond has been filed, which notice shall give the name of the defendant and his sureties, the offense for which the defendant was charged and the amount of the hail given. § 755. [Am'd, 1890.3 Delivery of affidavit. The affidavit and allowance of the appeal must be delivered to the magistrate, or clerk of the court rendering the judgment, within five days after the allowance of the appeal, and when so delivered the appeal is deemed taken. § 756. Betnrn, when and how made. The magistrate or court rendering the judgment, must make a return to all the matters stated in the affidavit, and must cause the afiSdavit and return to be filed in the ofiice of the county clerk within ten days after the service of the affidavit and allowance of the appeal. § 757. Compelling retnrn. If the return be not made within the time prescribed in the last section, the county court, or the judge thereof, may order that a return be made within a specified time which may be deemed reasonable; and the court may by attachment, compel a compli- ance with the order. § 758. Ordering and compelling further or amended return. If the return be defective, a further or amended return may be ordered, and the order may be enforced in the manner provided in the last section. § 759. [Am'd, 1899.] Appeal, hy whom and how brought to argument. The appeal must be brought to argument by the defendant at the next term, upon a notice of not less than ten days before said term to the district attorney of the county. § 760. If not brought to argument, as provided in last section, to be dis- missed, unless continued for cause shown. If the defendant omit to bring the appeal to argument, as provided in the last section, the court must dismiss it, unless it continue the same, by special order, for cause shown. § 761. Service of return on district attorney and consequences of failure. The defendant must serve upon the district attorney, a copy of the return, with or before the notice of argument. If he fail to do so, the appeal must be dismissed, upon proof of the failure, unless the court otherwise direct. § 762. If brought to hearing by defendant, appeal must be argued, though no one oppose, etc. If the appeal be brought to hearing by the defendant, it must be argued, though no one appear to oppose; but if brought on by the district attorney, he may take judgment of affirmance, unless the defendant appear to argue the appeal. PROCEEDINGS IN COUETS OF SPECIAL SESSIONS. 643 § 763. Appeal to be beard on original return. The appeal must be heard upon the original return; and no copy thereof need bo furnished for the use of the court. § 764. Wbat judgment may be rendered. After hearing the appeal the court must give judgment without regard to technical errors or defects which have not prejudiced the substantial rights of the defendants, and may render the judgment which the court below should have rendered, or may, according to the justice of the case affirm or reverse the judgment, in whole or in part, as to all or any of the defendants, if there be more than one, or may order a new trial, or may modify the sentence. § 765. [Am'd, 1917.] Judgment to be entered on tbe minutes. When judgment is given upon the appeal, it must be entered upon the minutes, and in case of a reversal it shall state whether the reversal was for errors of law only or was for errors of fact, or was for errors both of law and fact and if the reversal was for errors of law only whether the facts were examined and errors found therein. § 766. Order upon judgment for affirmance. If the judgment be affirmed, the court must direct its execution, and if the defendant have been discharged on bail after the commencement of the execution of a judgment of imprisonment, must commit him to the proper custody for the remainder of his term of imprisonment. § 767. Order upon judgment of reversal. If the judgment be reversed, and the defendant be imprisoned in pursuance of the judgment of the police court, the county court must order him to be discharged. § 768. [Am'd, 1909.] If neir trial ordered; to be had in county court. If a new trial be ordered, it must be had in the county court in the same manner aa upon an issue of fact on an indictment; and that court may proceed to judgment and execution, as in an action prosecuted by indictment. But where the appeal was from a judgment of commitment made under section four hundred and eighty-six of the penal law, the new trial shall be had before the county court without a jury. § 769. [Am'd, 1895.] Proceedings to carry judgment upon appeal into effect, to be bad in county court. If any proceeding be necessary to carry the judgment upon the appeal into effect, they must be had in the county court. § 770. [Am'd, 1895, 1917.] On judgment of county court defendant may appeal to appellate division. If the judgment on the appeal be against the defendant, he may appeal therefrom to the appellate division of the supreme court, in the same manner as from a judgment in an action prosecuted by indictment, and may be admitted to bail upon the appeal, in like manner. If the judgment on the appeal be against the people and it appears by the judgment that, the reversal was for errors of law only, the people may appeal therefrom to the appellate division of the supreme court, provided a justice of the supreme court in the department wherein the judgment upon the appeal from the magistrate's decision was rendered, grant an order permitting such appeal by the people to the appellate division. (Am'd by L. 1895, ch. 880, and I-. 1917, oh. 673, in effect Sept. 1, 1917.) 644 CODE OF CEIMINAL PROCEDUKE. § 770-a. [Added, 1917.] Appeal to the appellate division by the people; ho-w taken. For the purpose of appealing to the appellate division, the district attorney of the county wherein the judgment of the county court has been rendered must within sixty days after the entry upon the minutes of the reversal of the magistrate's decision by the county court, as provided by section seven hundred and sixty-five of the code of criminal procedure, apply to a justice of the supreme court in the department wherein the judgment was rendered, upon a written application, for leave to appeal to the appellate division from such reversal. § 770-b. [Added, 1917.] Appeal; how allowed. If, in the opinion of the judge to whom the application is made, it is proper that the question arising out of the reversal of the decision of the magistrate by the county court, should be reviewed by the appellate division, he must grant an order permitting such appeal by the people to the appellate division. The district attorney must within twenty days thereafter serve upon the defendant or his attorney a copy of the order granting such allowance of appeal. § 771. [Am'd, 1895.] Judgment of snpreme court upon appeal, final. The judgment of the appellate division of the supreme court upon the appeal is final; except that where the original appeal was from a judgment of commitment of a child, either party may appeal to the court of appeals in like manner as a defendant under section 519 of this Code. § 772. [Am'd, 1895.] Proceedings to carry into effect judgment of supreme court. The same proceedings must be had, to carry into effect the judgment of the appellate division of the supreme court upon the appeal, as if it had been taken upon a judgment in an action prosecuted by indictment. PART VI. Op Special Pkoceedijigs of a Criminal Natdbb. TITLE I. Of coroners' inquests, and the duties of coroners. TITLE II. Of search warrants. TITLE III. Of the outlawry of persons convicted of treason. TITLE IV. Of proceedings against fugitives from justice. TITLE V. Of proceedings respecting bastards. TITLE VI. Of proceedings respecting vagrants. TITLE VII. Of proceedings respecting disorderly persons. TITLE VIII. Of proceedings respecting support of poor persons. TITLE IX. Of proceedings respecting masters, apprentices and servants TITLE X. Of criminal statistics. TITLE XI. Miscellaneous provisions respecting proceedings of a criminal nature. TITLE XII. Violations of the provisions of the penal law relating to the manufacture or sale of spurious silverware or goldware. TITLE XIII. Investigation by sheriffs and coroners of the origin of fire. TITLE XIV. Grand jury stenographers. TITLE I. OP COBONEBS' INQUESTS, AND THE DUTIES OP COBONEES. fEcnON 773. In what cases coroners to summon a jury; number of jurors to be summoned. 774. Fees of jurors summoned on coroner's jury. 775. Witnesses to be subpoenaed. 776. Compelling attendance of witnesses, and punishing their disobedience. 777. Verdict of the jury. 778. Testimony, how taken and filed. 779. If defendant arrested before inquisition filed, depositions to be delivered to magistrate, and by him returned. 780. Warrant for arrest of party charged by verdict. 781. Form of warrant. 782. Warrant, how executed. 783. Proceedings of magistrate, on defendants being brought before liim. 784. Clerk with whom inquisition is filed, to furnish magistrate with copy of the same and of testimony returned therewith. 785. Coroner to deliver money or property found, on deceased, to county . treasurer. 786. County treasurer to place money to credit of county; and to sell other property and place proceeds to credit of county. 787. Money, when and how paid to representatives of deceased. 788. Supervisors to require statement under oath, from coroner, before audit- ing his accounts. 789. In New York, city magistrate may perform duties of coroner, during his inability. 789a. Justices of the peace to act as coroners in certain cases. 700. Compensation of coroners. 645 646 CODE OF CEIMINAL PKOCEDUEE. § 773. [Am'd, 1899, 1908.] Coroner's jury and examination. Whenever a coroner is informed that a person has been killed or dangerously wounded by another, or has suddenly died under such circumstances as to afford a reasonable ground to suspect that his death has been occasioned by the act of another by criminal means, or has committed suicide, he must go to the place where the person is and forthwith inquire into the cause of the death, or wounding, and in case such death, or wounding, occurred in a county in which is situated in whole, or in part, a city having a population of more than five hundred thousand as appears by the last state enumera- tion, but not otherwise, summon not less than nine, nor more than fifteen persons, quali- fied by law to serve as jurors, to appear before him forthwith, at a specified place, to inquire into the cause of the death or wound, and if it shall appear from the sworn examination of the informant, or complainant, or if it shall appear from the evidence taken on, or during the inquisition, or hearing, that any person, or persons, are charge- able with the killing or wounding, or that there is probable cause to believe that any per- son or persons are chargeable therewith, and if such person or persons be not in custody, he must forthwith issue a warrant for the arrest of the person or persons charged with such killing or wounding; and upon the arrest of any person, or persons, chargeable therewith, he must be arraigned before the coroner for examination, and the said coroner shall have power to commit the person or persons so arrested to await tlie result of the inquisition or decision. Any coroner shall be disqualified from acting as such in any case where the person killed, or dangerously wounded, or dying suddenly, lis aforesaid, is a co-employee with said coroner of any person, or persons, association, or corporation, or where it appears that the killing or wounding has been occasioned, directly or indirectly, by the employer of said coroner. § 774. [Added, 1909.] Fees of jurors summoned on coroner's jury. The fees of jurors necessarily summoned upon any coroner's inquest shall be not to exceed one dollar for each day's service, shall be a county charge and shall be audited and allowed by the boards of supervisors in the same manner as other fees and charges mentioned in this title. But the coroner holding such inquest and summoning said jurors shall make report to the next succeeding board pf supervisors after every such inquest of the names of such jurors and the term of service of each, and upon what inquest rendered, on or before the third day of the annual session in each year. § 775. Witness to be subpoenaed. The coroner may issue subpoenas for witnesses, returnable forthwith, or at such time and place as he may appoint. He must summon and examine as witnesses every person who, in his opinion, or that of any of the jury, has any knowledge of the facts; and he must summon as a witness a surgeon or physician, who must, in the presence of the jury, inspect the body, and give a professional opinion as to the cause of the death or wounding. § 776. Compelling attendance of witnesses, and punishing their disobedi- ence. A witness served with a subpoena may be compelled to attend and testify, or punished by the coroner for disobedience, as upon a subpoena issued by a magistrate, as provided in this code. § 777. [Am'd, 1899.] Verdict of the jury. After inspecting the body and hearing the testimony, the coroner must rende* his decision, or if in a county where a jury is summoned as provided in section seven hundred and seventy-three, the jury must render their verdict, and certify it by an inquisition or decision in writing, signed by him or them as the case may be, and SPECIAL PROCEEDINGS OF A CRIMINAL NATURE. 647 Betting forth who the person killed or wounded is, and when, where and by what means he came to his death, or was wounded; and if he were killed, or wounded, or his death were occasioned by the act of another, by criminal means, who is guilty thereof, in so far as by such inquisition he or such jury has been able to ascertain. . § 778. [Am'd, 1899.] Testimony, how taken and filed. The testimony of the witnesses examined before the coroner or the jury must he re- duced to writing by the coroner, or under his direction, and must be forthwith by him, with the inquisition, or decision, filed in the office of the clerk of the county court of the county, or of a city court, having power to inquire into the offense by the interven- tion of a grand jury. § 779. If defendant arrested before inqnisition filed, depositions to be delivered to magistrate, and by bim returned. If, however, the defendant be arrested before the inquisition can be filed, the coroner must deliver it with the testimony, to the magistrate before whom the defendant ia brought, as provided in section 781, who must return it with the depositions and state- ments taken before him, in the manner prescribed in section 221. § 780. [Am'd, 1899.] Warrant for arrest of party charged by verdict. If the coroner or jury, where a jury is summoned finds that the person was killed or wounded by another, under circumstances not excusable, or justifiable, by law, or that his death was occasioned by the act of another, by criminal means, and the party committing the act be ascertained by the inquisition or decision, and be not in custody, the coroner must issue a warrant, signed by him with his name of office, into one or more counties, as may be necessary, for the arrest of the person charged. § 781. [Am'd, 1899.] Form of warrant. The coroner's warrant must be in substantially the following form: County of Albany (or as the case may be). In the name of the people of the state of New York, to any sheriff, constable, marshal or policeman in this county: An inquisition having been this day found by a coroner's jury before me (or a decision having been made by me) stating that A. B. has come to his death by the act of C. D. by criminal means (or as the case may be), as found by the inquisition (or decision;) or information having been this day laid before me that A. B. has been killed or dangerously wounded by C. D. by criminal means (or as the ease may be), you are hereby commanded forth- with to arrest the above named C. D. and bring him before me, or in the case of my absence or inability to act, before the nearest or most accessible coroner in this county. Dated at the city of Aubany (or as the case may be), this day of E. F. Coroner of the county of Albany (or as the case may be) . § 782. Warrant, how executed. The coroner's warrant may be served in any county; and the officer serving it must proceed thereon, in all respects, as upon a warrant of arrest on an information ; except, that when served in another county, it need not he indorsed by a magistrate of that county. § 783. [Am'd, 1887.] Proceedings by magistrate. The magistrate, or coroner, when the defendant is brought before him, must proceed to examine the charge contained in the inquisition or information, and hold the defen- dant to answer or discharge him therefrom, in the same manner in all respects as upon a warrant of arrest on an information. 648 CODE or CEIMINAL PROCEDUKE. g 784. Duty of clerk to fnrnisli copy of inquisition. Upon the arrest of the defendant, the clerk with whom the inqiuisition is filed, must, without delay, furnish to the magistrate, or coroner, before whom the defendant is brought, a certified cofy of the inquisition and of the testimony returned therewith. § 785. Coroner to deliver money or property found, on deceased, to county treasurer. The coroner must, within thirty days after an inquest upon a dead body, deliver to the county treasurer, any money or other property which may be found upon the body, unless claimed in the meantime by the legal representatives of the deceased. If he fail to do so, the treasurer may proceed against him for its recovery, by a civil action in the name of the county. § 786. County treasurer to place money to credit of county; and to sell otlier property and place proceeds to credit of county. Upon the delivery of money to the treasurer he must place it to the credit of the county. If it be other property, he must, within thirty days, sell it at public auction, upon reasonable public notice; and must, in like manner, place the proceeds to the credit of the county. § 787. Money, irhen and h.o-w paid to representatives of deceased. If the money in the treasury be demanded within six years, by the legal representa- tives of the deceased, tho treasurer must pay it to them, after deducting the fees and expenses of the coroner and of the county in relation to the matter, or it may be so paid at any time thereafter, upon the order of the board of supervisors. g 788. Supervisors to require statement under oath from coroner, before auditing his accounts. Before auditing and allowing the account of the coroner, the board of supervisors must require from him a statement in writing, of any money or other property found upon persons on whom inquests have been held by him, verified by his oath, to the effect that the statement is true and that the money or property mentioned in it has been delivered to the legal representatives of the deceased, or to the county treasurer. § 789. [Am'd, 1909.] In New Tork, city magistrates may perform duties of coroner, during his inability. In the city of New York, if the coroner be absent or be unable, for any cause, to attend, the duties imposed by this title may be performed by a city magistrate, but by no other officer, with the same authority, and subject to the same obligations and penalites as apply to the coroner. § 789-a. [Added, 1909.] Justices of the peace to act as coroners in certain cases. Any justice of the peace, in each of the several towns and cities of this state, is hereby authorized and empowered, in case the attendance of a coroner cannot be pro- cured within twelve hours after the discovery of a dead body, upon which an inquest is now by law required to be held, to hold an inquest thereon in the same manner and with the like force and effect as coroners. In all cases in which the cause of a death is not apparent, it shall be the duty of the justice to associate with himself a regularly licensed physician, to make a suitable examination for the discovery of said cause. Each justice of the peace who shall hold inquests by virtue of this section, shall receive the sam« fees as are now allowed by law to coroners. SPECIAL PEOCEEDINGS OF A CEIMINAIi NATUEE. 649 § 790. Compensation of coroners. The coroner is entitled, for his services, in holding inquests and performing any other duty incidental thereto, to such compensation as defined by special statutes. TITLE II, OF SEABCH WABBARTS. Section 791. Search \rarrant, defined. 792. Upon what grounds may be issued. 793. It cannot be issued but upon probable cause, supported by afSdavit. 794. Before issuing warrant, magistrate must examine, on oath, the com- plainant and his witnesses. 795. Depositions, what to contain. 796. Magistrate, when to issue warrant. 797. Form of warrant. 798. By whom served. 799. Olficer may break open door or window, to execute warrant. 800. May break open door or window, to liberate person acting in his aid, or for his own liberation. 801. When warrant may be served in the night time, and direction therefor. 802. Within what time warrant must be executed and returned. 802a. Search warrant in aid of the commissioner of agriculture. 803. OfBcer to give receipt for property taken. 804. Property, when delivered to magistrate, how disposed of. 806. Return of warrant, and delivery to magistrate of inventory of property taken. 806. Magistrate to deliver copy of inventory to the person from whose possession property is taken, and to applicant for warrant. 807. If grounds for warrant controverted, magistrate to take testimony. 808. Testimony, how taken and authenticated. 809. Property, when to be restored to person from whom it was taken. 810. Depositions, search warrant, return and inventory, to be returned to county court or city court having jurisdiction of offense. 811. Maliciously and without probable cause procuring search warrant, a mis- demeanor. 812. Peace officer, exceeding his authority. 813. Person charged with felony supposed to have a dangerous weapon. % 791. Search warrant, defined. A search warrant is an order in writing, in the name of the people, signed ty a magistrate, directed to a peace officer, commanding him to search for personal property, and bring it before the magistrate. S 792. Upon what grounds it may he issned. It may be issued upon either of the following grounds: 1. When the property was stolen or embezzled; in which case, it may be taken, on the warrant, from any house or other place in which it is concealed, or from the pos- session of the person by whom it was stolen or embezzled, or of any other person in whose possession it may be; 2. When it was used as the means of committing a felony; in which case, it may bs taken, on the warrant, from any house or other place in which it is concealed, or from 650 CODE OF CEIMINAL PEOCEDUKE. the possession of the person by whom it was used in the commission of the crime, or of any other person in whose possession it may be; 3. When it is in the possession of any person, with the intent to use it as the means of committing a public offense, or in the possession of another, to whom he may have delivered it for the purpose of concealing it, or preventing its being discovered; in which case, it may be taken, on the warrant, from such person, or from a house or other place occupied by him, or under his control, or from the possession of the person to whom, he may have so delivered it. § 793. It cannot be issned but upon probable cause, supported by affidavit. A search warrant cannot be issued, but upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property, and the place to be searched. § 794. Before issuing -warrant, magistrate must esamine, on oath, the com- plainant and his iritnesses. The magistrate must, before issuing the warrant, examine, on oath, the complainant and any witnesses he may produce, and take their depositions in writing, and causa them to be subscribed by the parties making them. § 795. Depositions, trhat to contain. The depositions must set forth the facts tending to establish the grounds of the application, or probable cause for believing that they exist. § 796. Magistrate, -nrhen to issue warrant. If the magistrate be thereupon satisfied of the existence of the grounds of the appli- cation, or that there is probable cause to believe their existence, he must issue a search warrant, signed by him with his name of office, to a peace officer in his county, com- manding him forthwith to search the person or place named, for the property specified, and to bring it before the magistrate. § 797. Form of warrant. The warrant must be in substantially the following form: " County of Albany [or as the case may be]. " In the name of the people of the state of New York : "To any peace officer in the county of Albany, [or as the case may be] proof by affidavit having been this day made before me, by [naming every person whose afildavit has been taken], that [stating the particular grounds of the application, according to section 792 or if the aflBdavit be not ' positive that there is probable cause for believing that,' stating the ground of the application in the same manner.] " You are therefore commanded in the day time, [or ' at any time of the day or night,' as the case may be, according to section 801], to make immediate search on the person of C. D., [or ' in the buiMing situated,' describing it, or any other place to be searched, with reasonable particularity as the case may be], for the following property: [describing it with reasonable particularity], and if you find the same, or any part thereof, to bring it forthwith before me at [stating the place]. " Dated at the city of Albany [or as the case may be] , the day of 18... "E. F., "Justice of the peace of the city [or town] of [or as the case may be]." SPECIAL PROCEEDINGS OF A OEIMINAL NATURE. 651 § 798. By wbom served. A search warrant may, in all cases, be served by any of the officers mentioned in its direction, but by no other person, except in aid of the officer, on his requiring it, he being present and acting in its execution. § 799. Officer may break open door or -window, to execute warrant. The officer may break open an outer or inner door or window of a building, or any part of the building, or any thing therein, to execute the warrant, if, -aftei notice of his authority and purpose, he be refused admittance. § 800. May break open door or ivindow, to liberate person acting in his aid, or for his cwn liberation. He may break open any outer or inner door or window of a building for the purpose for liberating a person, who, having entered to aid him in the execution of the warrant, is detained therein, or when necessary for his own liberation. § 801. VThen -warrant may be served in the night time, and direction therefor. The magistrate must insert a direction in the warrant, that it be served in the day time, unless the affidavits be positive that the property is on the person, or in the place to be searched; in which case, he may insert a direction that it be served at any time of the day or night. § 802. Within -what time warrant must be executed and returned. A search warrant must be executed and returned to the magistrate by whom it waa issued, if issued in the city and county of New York, within five days after its date, and if in any other county, within ten days. After the expiration of those times respectively, the warrant, unless executed, is void. § 802-a. [Added, 1909.] Search -warrant in aid of the commissioner of agriculture. A search warrant, in the name of the people, directed to a peace officer commanding him to search for dairy products, imitations thereof and substitutes therefor, to open any place of business, factory, building, store, bakery, hotel, tavern, boarding-house, restaurant, saloon, lunch counter, place of public entertainment, carriage, car, boat, package, vessel, barrel, box, tub or can, containing, or believed to contain the same, in the nossession or under the control of any person who shall refuse to allow the same to be inspected or samples taken therefrom by the commissioner of agriculture, an assist- ant commissioner or any person or officer authorized by the commissioner or by the agricultural law or to which access is refused or prevented, and to allow and enable the officer mentioned in section thirty-five of the agricultural law applying therefor to take such samples of dairy products, imitations thereof and substitutes therefor, found in the execution of the warrant, as the officer applying for the search warrant shall desig- nate when the same are found, shall be issued by any magistrate to whom application is made therefor, whenever it shall be made to appear to him that such person has refused to permit any dairy products, imitations thereof or substitutes therefor, to be inspected or samples taken therefrom, or that access thereto by any officer mentioned in section thirty-five of the agricultural law has been refused or prevented, and that such officer has reasonable grounds for believing that such person has any dairy pro- ducts, imitations thereof or substitutes therefor in his possession, or under his control, or that he is violating any of the provisions of the agricultural law relating thereto. The provisions of section seven hundred and ninety-one to section eight hundred and two, both inclusive, of the code of criminal procedure, shall apply to such warrant 652 CODE OF CEIMINAL PROCEDUEE. as far as applicable thereto. The peace officer to whom the warrant is delivered shall make a return In writing of his proceedings thereunto to the magistrate who issued the same. § 802-b. Search for seizure and forfeitnre of intoxicating licinor kept for unlaivfnl tra£^c. (This section is not applicable to justices' courts.) § 803. Officer to give receipt for property taken. When the officer takes property under the warrant, he must give a receipt for the property taken, (specifying in detail), to the person from whom it was taken by him, or in whose possession "it was found, or, in the absence of any person, he must leave it in the place where he found the property. § 804. Property, when delivered to magistrate, how disposed of. When the property is delivered to the magistrate, he must, if it was stolen, or em- bezzled, dispose of it as provided in section 687 to 689, both inclusive. If it were taken on a warrant issued on the grounds stated in the second and tliird subdivisions of section 792, he must retain it in his possession, subject to the order of the court to which he is required to return the proceedings before him, or of any other court in which the offense, in respect to which the property taken, is triable. § 805. Return of warrant, and delivery to magistrate of inventory of property taken. Tlie officer must forthwith return the warrant to the magistrate, and deliver to him a written inventory of the property taken, made publicly, or in the presence of the person from whose possession it was taken and of the applicant for the warrant if they be present, verified by the affidavit of the officer, and taken before the magistrate, to the following effect: "I, A. B., the officer by whom this warrant was executed, do swear that the above inventory contains a true and detailed account of all the prop- erty taken by me on the warrant." § 806. Magistrate to deliver copy of inventory to the person from whoso possession property is taken, and to applicant for warrant. The magistrate must thereupon, if required, deliver a copy of the inventory to the person from whose possession the property was taken, and to the applicant for the warrant. § 837. If grounds for -warrant controverted, magistrate to take testimony. If the grounds on which the warrant was issued be controverted, the magistrate must proceed to take testimony in relation thereto. § 808. Testimony, how taken and authenticated. The testimony given by each witness must be reduced to writing and authenticated in the manner prescribed in section 200. § 809. Property, when to be restored to person from whom it -was taken. If it appear that the property taken is not the same as that prescribed in the war- rant, or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, the magistrate must cause it to be restored to the person from whom it was taken. § 810. Depositions, search -warrant, return and inventory, to be returned to county court or city court having jurisdiction of offense. The magistrate must annex together the depositions, the search warrant and return, and thQ inventory, and return them to the next county court of the county or city SPECIAL PROCEEDINGS OF A CEIMINAU NATURE. 653 court, having power to inquire into the offense in respect to which the search warrant was issued, by the intervention of a grand jury, at or before its opening on the first day. § 811. Malioionsly and -without probable cause procuring searcb -warrant, a misdemeanor. A person, who, maliciously or without probable cause, procures a search warrant to be issued and executed, is guilty of a misdemeanor. § 812. Peace ofiScer, exceeding bis authority. A peace officer, who, in executing a search warrant, wilfully exceeds his authority, or exercises it with unnecessary severity, is guilty of a misdemeanor. § 813. Person charged with felony supposed to have a dangerous weapon, etc. When a person charged with a felony is supposed by the magistrate before whom he is brought, to have upon his person a dangerous weapon, or any thing wliich may be used as evidence of the commission of the offense, the magistrate may direct him to be searched in his presence, and the weapon or other thing to be retained, subject to his order or the order of the'court in which the defendant may be tried. TITLE V. OP PBOCEEDINGS EESPECTINO BASTABDS. Chapter I. — ^Proceedings before magistrates, respecting bastards. Chapter II. — ^Appeals from the orders of magistrates, respecting bastards. Chapter III. — Enforcement of the undertaking for the support of the bastard or its mother, or for appearance on appeal. CHAPTER I. FBOCEEDINGS BEFOBE: MAGISTRATES, BESPECTINO BASTABDS. Section 838. Definition of a bastard. 839. Who are liable for its support. 840. When bastard, chargeable to the public is born or is likely to be born, application to be made to justice of the peace or police justice. 841. Examination by the magistrate, and warrant against the father. 842. Justice designated as a magistrate, and person proceeded against as defendant. 843. Warrant, when to be served in another county. 844. Magistrate in another county, may take undertaking for support of bastard and mother, or for appearance of defendant at the sessions. 845. On giving undertaking, defendant to be discharged. 846. If undertaking not given, defendant to be taken before magistrate who issued the warrant. 847. Before what magistrate in the same county, defendant is to be taken, when the magistrate issuing the warrant is unable to act. 848. The magistrate to associate with himself another magistrate, and they to examine the matter. 849. Adjournment of examination; security from defendant. 654 CODE OF CRIMINAL PEOCEDURE. Section 850. Determination of the case, and order of the magistrates. 851. Defendant to pay the costs, and give undertaking for support of bastard and mother, or for appearance at sessions. 852. On giving undertaking, defendant to be discharged; otherwise to be com- mitted. 853. Commitment of defendant, during examination. 854. Proceedings by magistrate, when security is given by defendant on arrest out of the county. 855. Examination in such case, and order thereon. 856. Magistrate may compel mother to disclose the father of the bastard; pro- ceedings, if she refuse. 857. If motlier possess property, two magistrates may malie an order that she pay for the support of the child. 858. If she do not comply, she must be committed, or discharged on under- taking. 859. Magistrates may reduce amount directed to he paid by the father or mother ; county court may reduce or increase it. 860. Proceedings against the father or mother, absconding from their place of residence. § 838. Definition of a bastard. A bastard is a child who is begotten and born: 1. Out of lawful matrimony; 2. While the husband of its mother was separate from her, for a whole year previous to its birth; or, 3. During tlie separation of its mother from her husband, pursuant to a judgment of a competent court. § 839. [Am'd, 1904, 1908.] Who are liable for its support. The father and mother of a bastard are liable for its support.. In case ot their neglect or inability, it must be supported by the county, city or town chargeable there- with under the provisions of the poor law. § 840. [Am'd, 1895, 1905.] Inquiry into facts of bastardy. If a woman be delivered of a bastard, or be pregnant of a child likely to be horn such, and which is chargeable to a county, city or town, a superintendent of the poor of the county, or an overseer of the poor or other officer of the almshouse of the town or city where the woman is, must apply to a justiee of the peace or a police justice in the county to inquire into the facts of the case. § 841. Examiination by tbe magistrate and -nrarrant against tbe fatlier. The magistrate must, by the examination bf the woman on oath, and any other testi- mony which may be offered, ascertain the father of the bastard, and must issue his warrant, directed to a peace officer of the county, commanding him, without delay, to apprehend the father, and bring him before the justice, for the purpose of having an adjudication as to the affiliation of the bastard. g 842. Justice designated as a magistrate, and person proceeded against as defendant. An officer issuing a warrant or making an examination, as provided in this chapter, is designated as a magistrate, and the person against whom the warrant is issued, as the defehdant. SPECIAL PROCEEDINGS OF A CEIMINAL NATUEE. 655 § 843. Warrant, xrlieii to be served in another connty. If the defendant reside in anotlier county tlian that in which the warrant is issued, the magistrate must, by an indorsement thereon, direct the sum in which the defendant shall give security, and the officer must deliver the warrant to a justice of the peace or police justice in the city or town in which the defendant resides or is found. The magistrate to whom it is presented, on proof, under oath, of the signature of the magis- trate who issued the warrant, must then indorse a direction thereon, that it he served in the county in which he resides, and the defendant may be arrested in that county accordingly. Upon this proof, the magistrate indorsing the warrant ia exempted from liability to a civil or criminal action, though it afterward appear that the warrant was illegally or improperly used. § 844. Magistrate in another connty, may take undertaking for support of bastard and mother, or for appearance of defendant at the sessions. When the defendant is arrested in another county, he must be taken before the magistrate who indorsed the warrant, or before another magistrate of the same city or County, who may take from the defendant an undertaking, with sufficient sureties, to the effect: 1. That he will indemnify the county, and town or city, where the bastard was or is likely to be born, and every other county, town or city, against any expense for the support of the bastard, or of its mother during her confinement and recovery, and to pay the costs of arresting the defendant, and of any order of filiation that may be made, or that the sureties will pay the sum indorsed on the warrant; or 2. That the defendant will appear and answer the charge at the next county court of the county where the warrant was issued, and obey its order thereon. § 845. On giving undertaking, defendant to he discharged. When either of the undertakings mentioned in the last section is given, the magis< irate must discharge the defendant, and must indorse a certificate of the discharge upon the warrant. He must also deliver the warrant, with the undertaking, to the officer, who must return it to the magistrate granting the warrant, by whom the same proceedings must be had, as if he had taken the undertaking. § 846. If undertaking not given, defendant to he taken before magistrate who issued the warrant. If the defendant do not give security, as provided in section 844, the officer must take him before the magistrate who issued the warrant. § 847. Before what magistrate in the same county, defendant to be taken, urhen the magistrate issuing the urarrant is unable to act. If, however, the magistrate who issued the warrant be absent or unable to act, the defendant must be taken before the nearest or most accessible magistrate in the same county. The officer must, at the same time, deliver to the magistrate, the warrant with his return indorsed and subscribed by him. § 848. The magistrate to associate with himself, another magistrate, an4 they to examine the matter. The magistrate before whom the defendant is brought, as provided in the last two sections, must immediately associate with himself, another justice of the peace or police justice in the same county or city; and the two magistrates thus associated, must inquire into the charge, and must examine on oath, the woman who is the mother of, or 656 CODE OF CKIMINAL PEOCEDUKE. pregnant with, the hastard in the presence of the defendant, in respect to the charge^ and hear any testimony which may be offered in relation thereto. § 849. Adjournment of examination. Security from defendant. The magistrates may, on the application of the defendant, for good cause adjourn the examination, not exceeding thirty days, upon the defendant giving an undertalving, with two sufficient sureties, to the effect that he will appear before the magistrates at the time appoined, or that the surties will pay, the sum mentioned therein, which must be fixed by the magistrates, and which must be a full indemnity for the expense of supporting the bastard and its mother, as provided in section eight hundred and fifty- ■one. Until the determination by the magistrates, if not admitted to bail, the defen- dant must be detained in custody of an officer or be committed to the common jail for detention in the same manner as a prisoner arrested in a civil cause. § 850. [Am'd, 1904.] Determination of tbe case, and order of the magis- trates. Upon the hearing, the magistrates must determine who is the father of the bastard, and must proceed as follows : 1. If they determine that the defendant is not the father of the bastard, he must be forthwith discharged: 2. If they determine that he is the father, they must make an order of filiation, specifying therein the sum to be paid weelily or otherwise, by the defendant for tha support of the bastard; and if the mother be indigent, the sum to be paid by tha defendant for her support during her confinement and recovery, and in case said bastard shall die, that the defendant will pay the necessary funeral expenses; 3. They must certify the reasonable costs of arresting the defendant, and of the order of filiation; 4. They must reduce their proceedings to writing, and subscribe them. § 851. Defendant to pay the costs, and give undertaking for support of bastard and mother, or for appearance, etc. If the defendant be adjudged to be the father, he must immediately pay the amount certified for the costs of the arrest and of the order of filiation, and enter into an undertaking, with sufficient sureties approved by the magistrates,' to the effect: 1. That he will pay weekly or otherwise, as may have been ordered, the sum directed to the support of the child, and of the mother during her confinement and recovery, or which may be ordered by the county court of the county, and that he will indemnify the county, and town or city where the bastard was or may be born (as the ease may be), and every other county, town or city, which may have been or may be put to expense for the support of the bastard, or of its mother during her confinement and recovery, against those expenses, or that the sureties will do so, not exceeding the sum mentioned in the undertaking, and which must be fixed by the magistrates; or 2. That he will appear at the next term of the county court of the county, to answer the charge and obey its order thereon, or that the sureties will pay a sum equal to a full indemnity for supporting the bastard and its mother, as provided in the first sub- division of section 844. g 852. On giving undertaking, defendant to he discharged; otherwise, to he committed. Upon a compliance with the provisions of the last section, the magistrates must dis- charge the defendant; hut otherwise, they or either of theni, must, by warrant, commit him to the county jail, or in the city of New York, to the city prison of that city. SPECIAL PEOCEEDINGS OF A OEIMINAL NATURE. 657 nntil he be discharged by the county court of the county, or deliver an undertaking as prescribed by the last section. % 853. Commitment of defendant during examination. During the examination and until the defendant is discharged by the magistrate, fie must remain in the custody of the officer who arrested him unless an undertaking have been given for his appearance, as provided in section 844 and 849 ; and when com- mitted to prison, he must be actually confined therein. § 854. Proceedings by magistrate trlien security is given by defendant on arrest out of the county. When security taken out of the county, for the appearance of the defendant at the county court, as provided in section 844, is returned to the magistrate wlio issued the warrant, he must associate with himself another magistrate of the same county, and the magistrates thus associated must proceed as provided in sections 848 to 850, both inclusive. § 855. Examination in such, case, and order thereon. The examination may be had, and the order of filiation made, in the absence of the defendant, unless, before the order is made, he require of the magistrate issuing the warrant, that the examination be had in his presence, in which case the examination must be had, as if the defendant had originally appeared. § 856. Magistrates may compel mother to disclose the father of the bastard; proceedings, if she refuse. In making an examination authorized by this chapter, the magistrate issuing the warrant, or the magistrates making the examination, may compel the mother of the bastard, chargeable to a county, city or town, or a woman pregnant of a child likely to be born such, to disclose the name of the father of the bastard; or if she refuse to do so, may, by a warrant setting forth the cause thereof, at the expiration of one inonth from her delivery, if sufficiently recovered, commit her to the county jail, or in the city of New York, to the city prison of that city, until she disclose the name of the father. § 857. If mother possesses property, two magistrates may make an order that she pay for the support of the child. If the mother of a bastard, chargeable or likely to become chargeable, as provided in section 840, be possessed of property in her own right, any two magistrates of the county or city where she is, on the application of any of the officers mentioned in that section, must examine into the matter, and may make an order charging the mother with the payment of money weekly, or otherwise, for the support of the bastard. § 858. If she do not comply, she must be committed, or discharged on undertaking. If, after service- of the order upon the mother, she do not comply therewith, she must be committed to the county jail, or in the city of New York, to the city prison of that city, until she comply, or enter into an undertaking, with sufficient sureties approved by the magistrates, to the effect that she will appear at the next term of the county court of the county, to answer the matters stated in the order, and obey its order thereon, or that the sureties will pay the sum mentioned in the undertaking, and which must be fixed by the magistrates. 42 658 CODE OF CKIMINAL PEOCEDUEE. § 859. Magistrates may reduce amoantB directed to be paid by father or mother; county court may reduce or increase it. The magistrate who may have made an order against the father or mother of a bastard, as provided in sections 850 and 857, may, from time to time, for good cause, reduce the amount therein directed to be paid, and upon the application of any of the officers mentioned in section 840, the county court of the county, upon ten days' notice to those officers, or to the father and mother of the bastard, may reduce or increase the amount so directed to be paid. § 860. Proceedings against the father or mother absconding from, their place of residence. If the father and mother of a bastard, or of a child likely to be born such, abscond from their place of residence, leaving the bastard chargeable or liliely to become charge- able to the public, a superintendent of the poor of the county, or an overseer of the poor or other officer of the almshouse of the town or city where the bastard was born, or is lilcely to be born, may apply to any magistrates of the city or county, where any property, real or personal, of the father or mother may be, for authority to take the same. Upon due proof of the facts on oath, to the satisfaction of the magistrates, they must issue their warrant, and proceed thereon, in the manner provided in title VIII, of this part, in relation to persons absconding and leaving their children chargeable to the public. CHAPTER II. APPEALS FBOM THE MAGISTRATES BESPECTINO BASTABDS. Section 861. Who may appeal, and in what cases. 862. Appeal, how taken. 863. Papers to be transmitted by magistrates, to court of sessions 864. Court to hear the case; evidence on hearing. 865. Court may affirm, vacate or modify the order, or adjourn the hearing till the bastard be born. 866. If the woman be not pregnant, or married before her delivery, or the child be not born alive, defendant to be discharged. 867. Order of the court, on affirmance. 868. Commitment of defendant, if he fail to give undertaking. 869. Undertaking for appearance on appeal, when forfeited. 670. When mother bound to appear at the county court, court to proceed as upon the appeal. 871. When the court may make an order against the mother, for the support of the bastard. 872. Proceedings against the mother, or affirmance or modification of the order of the magistrates. 873. Costs on appeal, when awarded and how paid. 874. Same. 875. When order of filiation vacated, except on the merits, court may make a new order of filiation, or bind the defendant to appear. 876. If order of filiation be vacated, except on the merits, magistrates may ■ proceed anew. 877. Court to inquire into circumstances of father or mother, committed for not giving undertaking to support the bastard. 878. Father or mother unable to support the bastard, may be discharged, 879. Notice, before discharge, and examination of the matter. 880. Party cannot be discharged, but by the court. SPECIAL PROCEEDINGS OF A CRIMINAL NATURE. 659 § 861. Who may appear, and in what oases. A pe-son deeming himself aggrieved by the order of two magistrates, made pursuant to the last chapter, may appeal therefrom to the next term of the county court of the county; except that a person who has executed an undertaking to obey an order of filiation, and indemnify the public, as provided in section 851, cannot appeal from any other part of the order mentioned in section 850, than that which fixes the weekly or other allowance to be paid. § 862. Appeal, how tahen. When the father or mother of the bastard has entered into an undertaking for appear- ance at the next term of the county court of the county, as provided in sections 851 and 858, it is an appeal from the order of filiation or maintenance ; and no other notice thereof is necessary. In any other case, the appeal is taken, by a written notice of at least ten days before the court, to the magistrates who made the order, and to the party afifected thereby, or to the officer at whose instance it was obtained. § 863. Papers to he transmitted by magistrate to county conrt. The magistrates receiving an undertaking for appearance at the county court must transmit it to the court, before its opening, with a certified copy of the order appealed from. § 864. Conrt to hear the case; evidence on hearing. The court must immediately, or at any other time it may appoint, proceed to hear the allegations and proofs of the parties: and the party in whose favor the order was made, must support it by evidence. If the mother of the bastard be dead or insane, licr testimony on the examination before the magistrates is receivable evidence. § 865. Conrt may afiSrm, vacate or modify the order, or adjonrn the hear- ing till the bastard be born. Tlie court may affirm or vacate an order of filiation or maintenance, or may reduce or increase the sum ordered to be paid for the support of the bastard or its mother; and, disregarding defects in form in the order, must amend it according to the fact. If, when the appeal is heard, the bastard be not born, the court may adjourn the hear- ing, until it be born, and in that case, must take an undertaking from the party appeal- ing, for his appearance, in such sum and with such sureties as the -court may deem sufficient. § 866. If woman be not pregnant, or be married before her delivery, or the child be not born alive, defendant to be discharged. If the woman alleged to be pregnant, he not so, or be married before her delivery, or the child be not born alive, the defendant must be discharged from custody, or from the obligation of his undertaking, either by the court or magistrates upon the fact being made to appear. § 867. Order of the conrt, on affirmance. If, upon the hearing of the appeal, the county court affirm an order of filiation or maintenance, it must require the defendant to enter into an undertaking, with sufficient sureties, approved by the court, to the effect that he will pay, weekly or otherwise, according to the order as made by the magistrate or modified by the court, the sum directed for the support of the bastard, and of the mother during her confinement and recovery; and that he will indemnify the county, and town or city where the bastard was or may be born (as the case may be), and every other county, town or city, which may have been put to expense for the support of the child, or of its mother during her 660 CODE OF CKIMHsTAL PKOCEDUEE. conflnement and recovery, against those expenses, or that the sureties will do so, not exceeding the sum mentioned in the undertaking, and which must be fixed by the court, § 8C8. Commitment of defendant, if he fail to give undertaking. If, on judgment of affirmance, the defendant do not enter into an undertaliing, as provided in the last section, he must be committed to the county jail, or in the city of New York, to the city prison of that city, until he do so, or be discharged by the court. § 869. Undertaking for appearance on appeal, when forfeited. The undertaking for the appearance of the defendant, at the county court, upon an appeal, is forfeited, by his neglect to appear, or to give the undertaking mentioned in the last two sections, unless he be discharged by the court. § 870. When mother honnd to appear at the connty court, court to proceed as upon an appeal. When the mother of a bastard is bound to appear at the county court, or is com- mitted as provided in section 858, the court must proceed in respect to the matter, in the same manner as upon an appeal. § 871. When the court may make an order against the mother, for the support of the bastard. If the court be satisfied that the mother has property in her own right, sufficient to enable her to support the bastard or contribute to its support, it must confirm tha order mentioned in section 857, or may vary the sum ordered to be paid weekly or otherwise ; or if not, it must discharge her from custody or from the obligation of her undertaking. § 872. Proceedings against the mother on affirmance or modification of the order of the magistrates. If the court affirm or modify the order, as provided in the last section, it must require the defendant to enter into an undertaking, with sufficient sureties approved by the court, to the effect that she will pay, weekly or otherwise, according to the order, as made by the magistrates or modified by the court, the sum directed for the support of the bastard, or that the sureties will do so not exceeding the sum mentioned in the undertaking, and which must be fixed by the court. If the undertaking be not given she must be committed in the manner provided in section 868. § 873. Costs on appeal, when awarded and how paid. The court must award costs to the party in whose favor an appeal is determined. When awarded against county superintendents or overseers of the poor of a town, not liable for the support of its own poor, they must be paid by the county treasurer, on delivering to him a certified copy of the order and of the taxed costs, and must be charged by him to the town in the same county, liable to support the bastard, or if there be none, to the county. In the city of New York, when costs are awarded upon an appeal, to the person charged as the father or mother of the bastard, they must, upon the production, of similar vouchers, bo paid by the comptroller of that city, and charged to the appropriation made to the commissioners of charities and corrections thereof. § 874. Same. In other cases, the payment of the costs may be enforced by the courts as in a civil action. If the party against whom they are awarded, reside out of the jurisdiction of SPECIAL PKOCEEDINGS OE A CKIMINAIi NATUEE, 661 the court, an action may be brought on the order, by the party entitled to the costs, In which the production of a certified copy of the order and of the taxed costs, is conclusive evidence. § 875. [Aiu'd, 1909.] When order of filiation vacated, except on the merits, conrt may make a new order of filiation, or bind the defendant to appear. If the court vacate an order of filiation, for any other cause than upon the mprits, it must proceed, and make an original order of filiation, in the manner prescribed in the second subdivision of section 850, or bind the person charged, in an undertaking, in a Bum and with sureties, approved by the court, to appear at the next term of the county court. § 876. If order of filiation be vacated, except on tho merits, magistrates may proceed anew. If the order be vacated for any other cause than on the merits, and the person charged be bound as provided in the last section, the same proceedings may be had by the magistrate, for the apprehension of the defendant, and for making an order of filiation, and for the commitment of the defendant for not giving an undertaking, as are authorized in the first instance. And the same proceedings must be subsequently had, in all respects. § 877. Court to inquire into circumstances of father or mother, committed for not giving undertaking to support the bastard. When a person is committed to prison, charged as the father of a bastard, or of a child likely to be born a bastard, and when the mother of a bastard is so committed, for not giving an undertaking to support the bastard, or to indemnify the public, the court must inquire, from time to time into the circumstances and ability of the father or mother to support the bastard and to procure security therefor. § 878. [Am'd, 1G04.] Father or mother unable to support the bastard, may be discharged. If the court be at any time satisfied that the father or mother is wholly unable to support the bastard, or to contribute to its support, or to procure security therefor, it may, in its discretion, order the father or mother to be discharged from imprisonment; but if it shall thereafter at any time appear to the satisfaction of the court of general sessions of the county of New York, or to the county court .)f any other county, that the defendant has become and is able to contribute to the support of the bastard, and fails so to do, the court may revoke and vacate ihs aioieaaia order discharging the defendant from arrest, and may order him to be rearrested and may require him to give a new undertaking in the manner provided in subdivision one of section eight hundred and fifty-one of the code of criminal procedure, and upon his failure to give such undertaking shall commit him to jail in the manner provided in section eight hundred and fifty-two of the code of criminal procedure. § 879. Notice before discharge, and examination of the matter. Before granting the order, the court must be satisfied that reasonable notice has been given to the overseer of the poor, or to the county superintendents, or chief officers of the almshouse, at whose instance the party was committed, of the intention to apply for a discharge, and must hear the allegations and proofs of the superintendents, over- seers or officers, and may examine the party applying on oath respecting the subject of the application. 662 CODE OF CKIMINAL PEOCEDUEE. § 880. Party cannot be discharged, but by the court. A person committed, as provided in section 877, cannot be discharged from imprison, ment, except by the county court of the county. CHAPTER III. ENFOBCEMENT OP THE UNDERTAKING FOB THE SUPPORT OP THE BASTARD OB ITS MOTHEB, CB FOB APPEABANCE ON APPEAL. Section 881. Court to order prosecution of undertaking, when forfeited; by whom prosecuted. 882. In whose name undertaking to be prosecuted. 883. Evidence in the action, and measure of damages. 884. For a subsequent breach of the undertaking, new action may be brought. 885. Costs, how recovered, when awarded against the plaintiff. 886. Action may be maintained on the order of the magistrates or court. § 881. Court to order prosecution of undertaking, -nrhen forfeited; by whom prosecuted. If an undertaking for the appearance at the county court of a person charged as the father or mother of a bastard, be forfeited, the court may order it to be prosecuted; and the sum mentioned therein may be recovered, and when collected; must, except in the city of New York, be paid to the county treasurer, and by him credited to the town in the same county, liable to the support of the bastard, or if there be none, to the county.. In the city of New York, the court must order the undertaking to be prosecuted by the commissioners of charities and corrections, and when collected, it must be paid into the city treasury. In every other county, it must be prosecuted by the district attorney. § 882. In whose name undertaking to be prosecuted. When an undertaking to obey an order, in relation to the support of a bastard, or of a child likely to be born a bastard, or of its mother, is forfeited, it may be prosecuted in the name of the county superintendents of the county, or the overseers of the poor of the town, which was liable for the support of the bastard, or which may have incurred any expense in the support of the bastard, or of its mother, during her confinement and recovery; or in the city of New York, in the name of the corporation of that city. § 883. Evidence in the action, and measure of damages. In the action mentioned in the last section, it is not necessary to prove the actual payment of money by a county superintendent, overseer of the poor, officer of an alms- house, or other person; but the neglect to pay a sum ordered to be paid by competent authority, for the support of the bastard, or of its mother, is a breach of the under- taking, and the measure of the damages is the sum ordered to be paid, and w^hich was withheld at the time of the commencement of the action, with interest thereon. § 884. For a subsequent breach of the undertaking, new action may be brought. For a breach of the undertaking, after the recovery of damages or the commencement of an action, another action may, in the samp manner, be brought. The money collected upon the undertaking must be paid, and credited, in the manner provided in section 881. SPECIAL PKOCEEDINGS OF A CRIMINAL NATUEE. 663 § 885. Costs, how recovered, irhen aivarded against the plaintiff. If, in the action, costs be awarded against the plaintiffs, they may be recovered as fellows : 1. If against the corporation of the city of New York, in the same manner as in any other action; 2. If against county superintendents or overseers of the poor, they must, upon the delivery of a transcript of the judgment, be paid by the county treasurer, and by him charged to the town in the same county, liable for the support of the bastard, or if there be none, to the county. § 886. Action may be maintained on the order of the magistrates or conrt. An action may be maintained by the parties authorized by section 882, upon an order made by two magistrates, or county court, for the payment of a sum weekly or other- wise, for the support of the bastard or its mother, notwithstanding an undertaking may have been given to comply with the order; and. in case of the death of the person against whom the order was made, an action may be maintained thereon against his executors or administrators. But when an undertaking is given to appear at the next term of the county court no action can be brought on the order until it is affirmed by the court. TITLE VL OP PEOCEEDINQS BESPECTINO VAGKA.KTS. Section- 887. Who are vagrants. 887a. Tramp defined. 888. Proceedings before magistrate. 889. Examination as to residence. 889a. Testimony in trials for violations of section eight hundred and eighty, seven, subdivision four. 890. Peace officers, when required by any person, to carry vagrant before a magistrate for examination. 891. Vagrant, when to be convicted ; form of certificate of conviction. 891a. Commitment or probation of persons convicted of violations of section eight hundred eighty-seven, subdivision four. 892. Certificate to constitute record of conviction, and to be filed; commitment of vagrant. 893. 894. Peace officers to arrest and pursue a person disguised, and take him before a magistrate. 895. Private citizen may do so, without warrant. 896. Peace officer may require aid; duty of persons required to aid him. 897. Neglect or refusal to aid peace officer, without lawful cause, a misde- meanor ; punishment. 898. Magistrate may depute an elector of the county to make arrest of person disguised; if his name be not known, fictitious name may be used. 898a. Summary punishment of professional criminals. § 887. Who aro vagrants. The following persons are vagrants; 1. A person who, not having visible means to maintain himself, lives without employment; 2. A person who, being an habitual drunkard, abandons, neglects or refu-ses to aid ia the support of his family; 684; CODE OF CRIMINAL PROCEDURE. 3. A person who has contracted an infectious or other disease, in the practice of drunkenness or debauchery, requiring charitable aid to restore him to health; 4. [Am'd, 1915, 1919.] A person (a) who oflers to commit prostitution, or (b) who offers or offers to secure another for the purpose of prostitution, or for any other lewd or indecent act; or (c) who loiters in or near any thoroughfare or public or private place for the purpose of inducing, enticing or procuring another to commit lewdness, fornication, unlawful sexual intercourse or any other indecent act; or (d) who in any manner induces, entices or procures a person who is in any thoroughfare or public or private place, to commit any such acts; or (e) who receives or offers or agrees to receive any person into any place, structure, house, building or conveyance for the purpose of prostitution, lewdness or assignation or knowingly permits any person to remain there for such purposes; or (f) who in any way, aids or abets or participates in the doing of any of the acts or things enumerated in subdivision four of section eight hundred and eighty-seven of the code of criminal procedure; or (g) who is a common prostitute, who has no lawful employment whereby to maintain herself. 5. A person wandering abroad and begging, or who goes about from door to door, or places himself in the streets, highways, passages, or other public places, to beg or receive alms; 6. A person wandering abroad and lodging in taverns, groceries, ale-houses, watch o^ station-houses, out-houses, market places, sheds, stables, barns or uninhabited buildings, or in the open air, and not giving a good account of himself; 7. A person, who, having his face painted, discolored, covered or concealed, or being otherwise disguised, in a manner calculated to prevent his being identified, appears in a road or public highway, or in a field, lot, wood or inclosure; 8. Any child between the age of five and fourteen, having sufficient bodily health and mental capacity to attend the public schools, found wandering in the streets or lanes of any city or incorporated village, a truant, without any lawful occupation. 9. [Subdivision repealed by L. 1910, ch. 381.] 10. [Added, 1S07.] A person who has been more than onde convicted as a pick- pocket, thief, burglar, and having no visible means of support, found loitering about steamboat landings, railroad stations, banking institutions, crowded thoroughfares, cars, omnibuses, hotels, or any public gatherings or assembly, and unable to give a satisfactory explanation of his presence. § 887-a. [Added, 1898.] Tramp defined. A tramp is any person, not blind, over sixteen years of age, and who has not resided in the county in virhich he may be at any time for a period of six months prior thereto, who 1. Not having visible means to maintain himself, lives without employment; or 2. Wanders abroad and begs, or goes about from door to door, or places himself in the streets, highways, passages or public places to beg or receive alms; or 3. Wanders abroad and lodges in taverns, groceries, ale-houses, watch or station houses, outhouses, market places, sheds, stables, barns or uninhabited buildings, or in open air, and does not give a good account of himself. § 888. [Am'd, 1888, 1909.] Proceedings tieforp magistrate. When complaint is made to any magistrate by any citizen or peace ofiBcer against any vagrant under subdivision eight of the last section, such magistrate must cause a peace officer to bring such child before him for examination and shall also cause the parent, guardian or master of such child, if the child has any, to be summoned to attend such SPECIAL PEOCEEDINGS OF A CEIMINAL NATURE. 665 examination. If thereon the complaint Bhall be satisfactorily established, the magis- trate must require the parent, guardian or master to enter into an engagement in writing to the corporate authorities of the city or village that he will restrain such child from so wandering about, will keep him in his own premises, or in some lawful occupation and will cause him to be sent to some school at least four months in each year, until he becomes fourteen years old. The magistrate may, in his discretion, require security for the faithful performance of such engagement. If the child has no parent, guardian or master, or none can be found, or if the parent, guardian or master refuse or neglect, within a reasonable time, to enter into such engagement, and to give such security, if required, the magistrate shall make the like disposition of such child as is authorized to be made by section four hundred and eighty-six of the penal law, of children coming within the description therein mentioned. § 889. [Added, 1898, 1909.] Examination as to residence. When complaint is made to any magistrate by an citizen or peace officer against a person under subdivision one, five or six of section eight hundred and eighty-seven, the magistrate, upon the examination of such person, cause testimony to be taken as to his residence, and it appears that such person has not resided in the county for a period of six months prior to his arrest, such magistrate shall not commit such person as a vagrant, as provided by this article; but if he finds that such person is guilty of an offense charged in one of such subdivisions, and such person is not blind or under sixteen years of age, the magistrate shall adjudge him to be a tramp, and commit him to a penitentiary, as required by law. On such examination the uncorroborated testi- mony of the defendant as to his place of residence shall not be deemed sufficient proof thereof. [This section does not apply to cities of the first and second class. Laws of 1898, chap. 664, § 6.] § 889-a. [Added, 1919.] In the trial of any person charged with a violation of subdivision four of section eight hundred and eighty-seven of the code of criminal procedure, testimony concerning the reputation of the place vvliercin the offense occurred or of persons who frequent or reside therein shall be admissible in cvidGnce in support of the charge. § 890. Peace officers, -irlien required by any person, to carry vagrant before a magistrate for examination. A peace officer must, when required by any person, take a vagrant before a justice of the peace or police justice of the same city, village or town, or before the mayor, recorder, or city judge, or judge of the general sessions of the same city, for the purpose of examination. § 891. [Am'd, 1898.] Vagrant; wben to be convicted; form of certificate of conviction. If the magistrate be satisfied, from the confession of the person so brought before him, or by competenj; testimony, that he is a vagrant, and has resided in the county for a period of six months prior to his arrest, he must convict him, and must make and sign, with his name of office, a certificate substantially in the following form : " I certify that A. B., having been brought before me, charged with being a vagrant, I have duly examined the charge, and that upon his own confession in my presence [or 'upon the testimony of C. D.,' et cetera, naming the witnesses], by which it appears that he is a person [pursuing the description contained in the subdivision of section eight hundred and eighty-seven, which is appropriate to the case], and if convicted under subdivisions one, five or six of section eight hundred and eighty-seven that he has 666 CODE OF CKIMINAL PKOCEDUEE. resided in tho county of for a period of six months immediately prior to his arrest, I have adjudged that he is a vagrant. " Dated at the town [or city] of the day of , 19. . . "E. F. " Justice of the peace of the town of " [or as the case may be]. § 891-a. [Added, 1919.] Any person convicted in a city of a violation of subdivision four of section eight hundred and eighty-seven of the code of criminal procedure, shall be committed by the court or judge to any reformatory or house of refuge or other correctional institutiou for a period not to exceed three years or to a county jail, penitentiary or other penal institution for a period not to exceed one year, or placed on probation for a period not to exceed three years, provided, in the case of a person infected with venereal disease, such probation shall be granted only upon such terms and conditions as shall insure medical treatment of such disease and prevent the spread thereof, and no girl or woman shall be placed on probation except to a woman probation officer where available. The provisions of this subdivision shall not supersede the provisions of chapter six hundred and fifty-nine of the laws of nineteen hundred and ten or any amendment thereto, relating to the commitment of convicted persons. § 892. [Am'd, 1886, 1898, 1911.] Certificate to constitute record of con- -viction, and to be filed; commitment of vagrants. The magistrate must immediately cause the certificate which constitutes the record of conviction, together with the testimony taken before him as to the residence of such vagrant, to be filed in the office of the clerk of the county, and must, by a warrant signed by him, with his name of oSice, commit the vagrant, for not exceeding six months at hard labor to the county jail. In those counties of the state where the distinction between county poor and town poor is maintained, the expense of the conviction and maintenance during the commitment of any vagrant committed to the county jail, who fhall, at the time of such commitment, have obtained a legal settlement in one of the towns of the county in which said persons shall be convicted, shall be a charge upon the town where they may reside at the time of such commitment. § 8S3. [Repealed, 1888.] ^ 894. Peace officers to arrest and pursue a person disguised, and take him before a magistrate. It is the duty of every peace officer of the county, city, village, or town, where a person described in the seventh subdivision of section 887 is found, to arrest and take him before a magistrate mentioned in section 888, to be proceeded against as a vagrant. § 895. Private citizen may do so Tvitbout ivarrant. A private citizen of the county may also, without warrant, exercise the powers con- ferred upon a peace officer by the last section. g 896. Peace officer may require aid; duty of persons required to aid Mm. In the execution of duties imposed by section 894, the peace officer may command the aid of as many male inhabitants of his county, city, village or town, as he may think proper; and a citizen so commanded, may provide himself or be provided with, such means and weapons as the officer giving the command may designate. SPECIAL PKOCEEDINGS OF A CEIMIN"AL NATUKE. 66Y § 897. Neglect or refnsal to aid peace officer, witbont canse, a misdemeanor; punishment. A person commanded to aid the officer, as prescribed in the last section, and who without lawful cause refuses or neglects to do so, is guilty of a misdemeanor, and is punishable by a fine not exceeding two hundred and fifty dollars, or by imprisonment not exceeding one year, or both. § 898. Magistrate may depute an elector of tlie county to make arrest of person disguised; if his name be not knovrn fictitious name may be used. A magistrate to whom complaint is made against a person charged as a vagrant, as described in the seventh subdivision of section 887, may, by a warrant, signed by him with his name of office, depute an elector of the county to arrest and bring the vagrant befor6 him, to answer the complaint; and if the name of the person complained of be not known, he may be described in the warrant and 'in all subsequent proceedings thereon, by a fictitious name. § 898-a. [Added, 1909.] Summary punishment of professional criminals. If any person shall be charged on oath or affirmation before any police magistrate or justice of the peace in this state with being a professional thief, burglar, pickpocket, counterfeiter or forger, or shall have been arrested by the police authorities at any steamboat landing, railroad, depot, church, banking institution, brokers' office, place of public amusement, auction room, store, auction sale in private residence, passenger car, hotel or restaurant, or at any other gathering of people, whether few or many, and if it shall be proven to the satisfaction of any such magistrate or justice of the peace, by sufficient testimony, that he or she was frequenting or attending such place or places for an unlawful purpose, and that he or she has at some time been convicted of any of the crimes herein named, he or she shall be deemed a disorderly person; and upon conviction after trial shall be committed by the said magistrate or justice of the peace to the penitentiary, in counties where there is a penitentiary, for a term not exceeding one hundred days, tliere to be kept at hard labor, and in counties where there is no penitentiary, or where no contract exists with any authorities of any penitentiary in the state, then to the county jail of said county, for a term not exceeding one hundred days, or, in the discretion of any such police magistrate or justice of the peace, he or she shall be required to enter security for his or her good behavior for a period not exceeding one year. Any person who may or shall feel aggrieved at any such act, judgment or determination of any such police magistrate or justice of the peace, pursuant to the provisions of this section, may apply to any judge or justice of any court halving the power to issue a writ of habeas, corpus for the issuance of said writ, and upon return thereof there shall be a hearing of the evidence, and the judge or justice may either discharge, modify or confirm the commitment. C68 CODE OF CEIMINAL PKOCEDUKE. TITLE VII. OF PROCEEDINGS BESPECTINQ DISORDERLY PERSONS. Sectiok 899. Wlio are disorderly ];ersons. 900. On complaint, warrant to lie issued. 901. On confession or proof that lie is a disorderly person, security to b» required. C02. If socurity given, defendant to be discharged; if not, to be convicted; form of certificate. 903. Certificate, to constitute record of conviction, and to be filed; commit- ment thereon. 904. Undertaking, when forfeited. 905. How prosecuted, and proceeds how applied. 906. When new security may be required, or defendant committed after recov- ery or undertaking. 907. Defendant committed for not giving security, how discharged. 908. Keeper of prison, to return list of disorderly persons committed. 909. Examination of the case by the court. 910. Court may discharge, or authorize the binding out of disorderly person. 911. Court may also commit him to prison; nature and duration of imprison- ment. 912. Order to procure materials and implements, and to compel liim to work. 913. Expense of materials or implements, how paid for, and proceeds of labor, how disposed of. § 899. Who are disorderly persons. The following are disorderly persons : 1. Persons who actually abandon their wives or children, without adequate support, or leave them in dinger of becoming a burden upon the public, or who neglect to provide for them according to their means; 2. Persons who threaten to run away, and leave their wives or chifdren a burden upon the public. 3. Persons pretending to tell fortunes, or where lost or stolen goods may be fonnd. 4. Keepers of bawdy houses or houses for the resort of prostitutes, drunkards, tip- plers, gamesters, habitual criminals, or other disorderly persons; 5. Persons who have no visible profession or calling, by which to maintain them- selves, but who do so, for the most part by gaming; 6. Jugglers, common showmen and mountebanks, who exhibit or perform for profit puppet shows, wire or rope dancers, or other idle shows, acts or feats ; 7. Persons who keep, in a public highway or place, an apparatus or device for the purpose of gaming, or who go about exhibiting tricks or gaming, therewith; 8. Persons who play, in a public highway or place, with cards, dice or any other iipparatus or device for gaming; 9. Habitual criminals within the provision of this code. § 003. On complaint, Tvarrant to be issued. Upon complaint on oath, to a justice of the peace ir police justice of a city, village or town, or to the mayor, recorder, city judge or judgi. of the general sessions of a city, against a person, as being disorderly, the magistrate must issue a warrant signed by liim, with his name of office, requiring a peace officer to arrest the defendant, and bring liim before the magistrate for examination. SPECIAL PROCEEDINGS OE A;CRIMINAU NATURE. '609 S 901. [Am'd, 1909, 1917.] On concession or proof that he is a disorderly person, punishment or security to be required. If Clie magistrate be satisfied, from the confession of the defendant, or hy competent testimony, that he is a disorderly person, he may require tliat the person charged give security, by a written undertaking, with one or more sureties approved hy the magis- trate, to the following effect : 1. If he he a person described in tlie first or second subdivision of section eiglit iiundred and ninety-nine, that he will pay to the county superintendent of the poor or to the overseer of the poor of the town, city or viHage, or to a society for the prevention of cruelty to children, weekly for the space of one year thereafter a reason- able sum of money to be specified by the magistrate for the support of his wife or children ; 2. In all other cases, except as provided in subdivision three of this section, that he will be of good behavior for the space of one year; Or that the sureties will pay the sum mentioned in the undertaking, and which must be fixed by the magistrate. 3. Within the city of New York, all persons described in subdivision three of section eight hundred and ninety-nine shall be liable, upon conviction, to a fine not to exceed two hundred and fifty dollars, or to imprisonment not to exceed six months, or to both such fine and imprisonment. § 902. If security given, defendant to be discharged; if not, to be con- Ticted; form of certificate. If undertaking be given, the defendant must be discharged. Eut if not, the magis- trate, must convict him as a disorderly person, and must make and sign, with his name of office, a certificate in substantially the following form : " I certify that A. B., having been brought before me, charged with being a disorderly person, I have duly examined the charge, and that upon his own confession in my presence [or 'upon the testimony of C. D.,' etc., naming the witnesses], by which it appears that he is a [pursuing the description contained in the subdivision of section 899, which is appropriate to the case], I have adjudged that lie is a disorderly person. " Dated at the town [or city] of , the day of , 19 . . . " E. F.. "Justice of the peace of the town of " [or as the case may be]. § 903. [Am'd, 1882, 1902, 1910, 1916.] Certificate to constitute record of conviction, and to be filed; commitment thereon; probation. The magistrate must immediately cause the certificate, which constitutes the record of conviction, to be filed in the oSice of the clerk of the county, and must, by a warrant signed by him with his name of office, cooimit the defendant to the county jail, or in the city of New York, to the city prison or penitentiary of that city, or in the county of Monroe, to the penitentiary of that county, or in the county of Westchester to the penitentiary and workhouse of that county, for not exceeding six months at hard labor, or until he gives the security prescribed in section nine hundred and one; or, if the defendant be a person described in the first or second subdivision of section eijht Ijundrcd and ninety-nine, the magistrate may require him while on probation to pay through the probation oflicer weekly a reasonable sum for the support of his wife or children. i § 904. Undertaking, when forfeited. The undertaking mentioned in section nine hundred and one is forfeited by the commission of any of the acts which constitute the person by whom it was given a 670 CODE OF CKIMIISrAL PKOCEDUEE. disorderly person and in the case of a person described in the first and second sub- divisions of sections eight hundred and ninety-nine by the failure to make the weekly payments ordered by the magistrate, and in the case of a person described in the seventh and eighth subdivisions of section eight hundred and ninety-nine, by his playing or betting, at one time or sitting, for money or property exceeding the value of two dollars and fifty cents. (Amended by L. 1909, ch. 506, in effect Sept. 1, 1909.) § 905. [Am'd, 1901, 1917.] How prosecuted, and proceeds how applied. When an undertaking is forfeited, it may be prosecuted in the name of the county superintendent of the poor, or the overseers of the poor of the town or in the city of New York, in the name of the corporation of that city, and the sum collected in the action must be paid into the county or city treasury, as the case may be for the benefit of the poor, except where the condition of the bond is as set forth in subdivision one of section nine hundred and one of this code, the sum collected must be paid by the party receiving the same for the benefit of the person for whose support said bond was given. In ease the defendant is an Indian, it must be prosecuted in the name of the people of the state of New York by the attorney-general, or at his request by the district attorney of the county, and the sum collected in the action, must be paid into the state treasury, for" the benefit of the Indian poor. § 906. When new security may bo required, or defendant committed after recovery on undertaking. Upon a recovery on the undertaking, the court in which it is had may require from the defendant new security, in the manner provided in section 901, or if he fail to give it, may commit him in the manner. provided in section 903. g 907. Defendant committed for not giving security, how discharged. A person committed as a disorderly person, on failure to give security, may be discharged by the committing magistrate, or by any two justices of the peace, or police justices or magistrate, or the county judge of the county, upon giving security as originally required, pursuant to section nine hundred and one. § 908. lieepcr of prison, to return list of disorderly persons committed. The keeper of every prison to which disorderly persons may be committed, must return to the county court of the county, on the first day of each term, a list of the persons so committed and then in his custody, with the nature of the offense of each, the name of the magistrate by whom he was committed, and the term of his imprison- ment. § 909. Esamination of the case by the court. The county court must thereupon inquire into the circumstances of each case, and hear any proof tha.t may be offered, and must examine the record of conviction, which is evidence of the facts contained in it, until disproved. § 910. [Am'd, 1895, 1910, 1916.] Court may discharge, place on probation, or authorize the binding out of disorderly person. The court may discharge a person so committed from imprisonment, either absolutely or on paro'e under a salaried probation officer, or upon his giving security as provided in section nine hundred and one, or if he be a minor,_may authorize the county superin- tendents of the poor, or the overseers of the poor of the town, or in the city of New York, the commissioner of charities, or in the county of Westchester, the commissioner of charities and corrections, to bind him out in some lawful calling as a servant, apprentice, mariner or otherwise, until he be' of age, or if he be of age, to contract SPECIAL PKOCEEDINGS OE A CKIMINAU NATUKE. 671 for his service with any person, as a laborer, servant, apprentice, mariner or otherwise, for not exceeding one year. The binding out or contract, pursuant to this section, has the same effect as the indenture of an apprentice, with his own consent and that of his parents, and subjects the person bound out or contracted, to the same control of his master and of the county court of the county, as if he were bound as an apprentice. § 911. [Am'd, 1916.] Court may also commit him to prison; nature and duration of imprisonment. The court may also, in its discretion, order a person convicted as a disorderly person, to be kept in the county jail; or, in the city of New York, in the city prison or peni- tentiary of that city; or in the county of Westchester, in the penitentiary and work- house of that county, for a term not exceeding six months at hard labor. % 912. Order to procure materials and implements, and to compel him to work. If there be no means provided in the prison for employing the offender at hard labor, the court may direct the keeper to furnish him such employment as it may specify, and for that purpose to purchase materials and implements, not exceeding a prescribed value, and to compel the offender to perform the work allotted to him. The expenses incurred in carrying the order into effect must be paid to the keeper by the county treasurer, upon the delivery to him of the order of the court, and an account under the oath of the keeper, of the materials and implements furnished. § 913. Expense of materials or implements, how paid for, and proceeds of labor, hoir disposed of. The keeper must sell the produce of the labor of the offender, and must account for the cost of the materials or implements purchased, and for one-half of the surplus, to the board of supervisors, and pay it into the county treasury, and pay the other half of the surplus to the person by whom it was earned, on his discharge from imprison- ment. He must also account to the court, when required, for the materials or imple- ments purchased, and for the disposition of the proceeds of the labor of the offender. 672 CODE OF CKIMINAL PliOCEDUEE. TITLE VIII. op PBOCEEaJINGS BESPECTING THE SUPPORT CF POOR PEBSONS. Section 914. Who may be compelled to support . poor relatives. 915. Order to compel a person to support a poor relative, by v^hom and liow applied for, to court of .sessions. 916. Court to hear the case, and make order of support. 917. Support, when to be apportioned among different relatives. 918. Order, to prescribe time during which support is to continue, or may be indefinite; when and how order may be varied. 919. Costs, by whom to be paid, and how enforced. , 920. Action on the order, on failure to comply therewith. 921. Parents leaving their children chargeable to the public, how proceeded against. 922. Seizure of their property; transfer thereof, when void. 923. Warrant and seizure, when confirmed or discharged; direction of the court thereon. 924. Warrant in what cases to be discharged. 925. Sale of the property seized, and application of its proceeds. 926. Powers of superintendents of poor. , > § 914. [Am'd, 1898.] Who may be co^npelled to support poor relatives. The father, mother and children, if of sufficient ability, of .a poor person who is insane, blind, old, lame, impotent or decrepit, so as to be unable to work to maintain himself, must, at their own charge, relieve and maintain him in a manner to be approved by the overseers of the poor of the town where he is, or in the city of Ne\V York, by the commissioners of public charitifes. If such poor person be insane, he shall be maintained in the manner prescribed by the insanity law. The father, mother; husband, wife or children of a poor insane person legally committed to and confined in an institution supported in whole or^in part by the state, shall be liable, if of sufficient ability, for the support and maintenance of such insane person from the time of his reception in such institution. § 915. [Ain'd, 1898, 1904, 1913.] Order to compel a person to support a poor relative, et cetera. If a relative of a poor person fail to relieve and maintain him, as provided in the last section, the overseers of the poor of the town where he is, or in the city of New York, the commissioners of public charities may apply to the court of general sessions of the county of New York, or to the supreme court of the state of New York, or to the county court of any other county where the poor person dwells, for an order to compel such relief, upon at least five days' written notice, served personally, or by leaving it at the last place of residence of the person to whom it is directed, in case of his absence, with a person of suitable age and discretion. If such poor person be insane and legally committed to and confined in an institution supported in whole or in part by the state, and his relatives refuse or neglect to pay for his support and maintenance therein, application may be made by the treasurer of such institution in the manner provided in this section, for an order directing the relatives liable therefor to make such payment. g 916. [Am'd, 1898.] Court to bear the case and make order of support. At the ,time appointed in the notice, the court or a judge thereof must proceed sum- marily to hear the allegations and proofs of the parties, and must order such of the SPECIAL PEOCEEDINGS OE A CKIMmAL NATUEE. G73 relatives of the poor person mentioned in section nine hundred and fourteen, as were served' with the notice and are of sufficient ability, to relieve and maintain him, specifying in the order the sum to be paid weekly for his support, and requiring it to be paid by the father, or if there be none, or if he be not of sufficient ability, then by the children, or if there be none, or they be not of sufficient ability, then by the mother. If the application be made to secure an order compelling relatives to pay for the main- tenance of insane poor persons committed to and confined in an institution supported in whole or in part by the state such order shall specify the sum to be paid for hia maintenance by his relatives liable therefor, from the time of his reception in such institution to the time of making such order, and also the sum to be paid weekly for his future maintenance in such mstitution. The relatives served with such notice shall be deemed to be of sufficient ability, unless the contrary shall affirmatively appear to the satisfaction of the court or a judge thereof. § 917. [Am'd, 1898.] Support; irhen to be apportioned among different relatives. If it appear that any such relative is unable to wholly maintain the poor person or to pay for his maintenance if confined in a state institution for the insane, but is able to contribute toward his support, the court or a judge thereof may direct two or more relatives of different degrees, to maintain him or to pay for his maintenance in such an institution if insane, prescribing the proportion which each must contribute for that purpose; and if it appear that the relatives are not of sufficient ability wholly to maintain him, or to pay for his maintenance in such an institution, if insane, but are able to contribute something, the court or a judge thereof must direct the sum, in proportion to their ability, which they shall pay weekly for that piirpose. If it , appears that the relatives who are liable for the maintenance of an insane poor person confined in a state institution for the insane are not able to pay the whole amount due for such maintenance from the time of such poor person's admission to such institution, the court or a judge thereof must direct the sum to be paid for such maintenance in proportion to the ability of the relatives liable therefor. § 918. [Am'd, 1898.] Order to prescribe time during wbich support is to continue, or may be indefinite; irben and bo^ order may be varied. The order may specify the time during which the relatives must maintain the poor person, or during which any of the sums directed by the court or a judge thereof are to he paid, or it may be indefinite or until the further order of the court or a judge thereof. If the order be for payment of a weekly sum for the maintenance of an insane poor person in a state institution, the order shall specify that such sum shall be paid as long as such insane poor person is maintained in such institution. The court or a judge thereof may from time to time vary the order, as circumstances may require, on the application either of any relative affected by it, or of an officer on whose application the order was made, upon ten days' written notice. § 919. Costs, by wbom paid, bow enforced. The costs and expenses of the application must be ascertained by the court, and paid by the relatives against whom the order is made; and the payment thereof, and obedi- ence to the order of maintenance, and to any order for the payment of money, may be enforced by attachment. § 920. [Am'd, 1898.] Action on tbe order on failure to comply therewith. If a relative, required by an order of the court or a judge thereof to relieve and maintain a poor person, neglect to do so in the manner approved by the officers meu- 43 674 CODE OF CKIMINAL PROCEDUEE. tioned in section nine hundred and fourteen, and neglect to pay them weekly the sum prescribed by the court or a judge thereof, the officers may maintain an action against the relative, and recover therein the sum prescribed by the court or a judge thereof for every week the order has been disobeyed, to the time of the recovery, with costs, for the use of the poor. If the order directs a relative to pay for the maintenance of an insane poor person in a state institution, and such relative refuses or neglects to pay the amount specified therein, an action may be brought by the treasurer of such insti- tution in its corporate name to recover the amount due to such institution by virtue of such order. § 921. Parents leaving their children chargeable to the public, how proceed against. a. When the father, or the mother being a widow or living separate from her hus- band, absconds from the children or a husband from his wife, leaving any of them chargeable or likely to become chargeable upon the public, the officers mentioned in section nine hundred and fourteen may apply to any two justices of the peace or police justices in the county in which any real or personal property of the father, mother or husband is situated, for a warrant to seize the same. Upon due proof of the facta, the magistrate must issue his warrant, authorizing the officers so applying to take and seize the property of the person so absconding. b. Whenever any child shall be committed to an institution pursuant to any provi- sion of law, any criminal court or magistrate may issue a summons or warrant for a parent of the child or any other person required by law to maintain or support such child, and examine into his or her ability to maintain such child in whole or in part; and if satisfied that such parent or other person is able to contribute toward the sup- port of the chi'd, then such court or magistrate shall, by order, require the weekly payment by such parent or other person of such sum and in such manner as shall be in said order directed, toward the maintenance of such child in such institution, which amount when paid shall be credited by the institution to the city, town or county against any sums due to it therefrom on account of the maintenance of the child. § 922. Seizure of their property; transfer thereof, when void. The officer so applying may seize and take the property, wherever it may be found in the same county; and are vested with all the right and title thereto, which the person absconding them had. The sale or transfer of any personal property, left in the county from which he absconded, made after issuing the warrant, whether in payment of an antecedent debt or for a new consideration, is absolutely void. The officers must immediately make an inventory of the property seized by them, and return it, together with their proceedings, to the next county court of the county where they reside, there to be filed. § 923. Warrant and seizure, when confirmed or discharged. The court, upon inquiring into the circumstances of the case, may confirm or dis- charge, the warrant and seizure; and if it be confirmed, must, from time to time, direct what part of the personal property must be sold, and how much of the proceeds of the sale, and of the rents and profits of the real property, if any, are to be applied toward the maintenance of the children or wife of the person absconding. § 924. Warrant, in what case to be discharged. If the party against whom the warrant issued, return and support the wife and children so abandoned, or give security satisfactory to any two justices of the peace, or police justices in the city, village or town, to the overseers of the poor of the town, or in the city of New York, to the commissioners of charities and corrections, that the wife or children so abandoned shall not be chargeable to the town or county, then the SPECIAL PEOCEEDINGS OF A CKIMINAI> NATURE. 6Y5 warrant must be discharged by an order of the magistrate, and the property taken by virtue thereof restored to the party. § 925. Sale of tbe property seized and application of its proceeds. The officers must sell at public auction the property ordered to be sold, and receive the rents and profits of the real property of the person absconding, and in those cities, villages or town which are required to support their own poor, the officers charged therewith must supply the same to the support of the wife or children so abandoned; and for that purpose must draw on the county treasurer, or in the city of New York, upon the comptroller, for the proceeds as directed by special statutes. They must also account to the county court of the county, for all money so received by them, and for the application thereof, from time to time, and may be compelled by that court to render that account at any. time. § 926. CAm'd, 1918.] Powers of superintendents of poor. When the poor person for whom relief is sought is a charge upon a county, the superintendents of the poor are vested with the same powers, as are given by this title to the overseers of the poor of a town, in respect to compelling relatives to maintain poor persons, and in respect to the seizure of the property of a parent absconding and abandoning his family; and are entitled to the same remedies in their names, and must perform the duties required by this title, of overseers, and are subject to the same obligations and control. TITLE IX. OF PE0CEEDIN6S EESPECTING MASTEES, APPEENTICES AND SEBVANTS. Section 927. Complaint against apprentice or servant, for absenting himself or refus- ing to serve, or for a misdemeanor or ill behavior. 928. Warrant, when complaint is made in the absence of the defendant. 929. Warrant, by whom and how executed. 930. Hearing the complaint, and committing or discharging the defendant. 931. Complaint against the master, for cruelty, misusage or violation of duty. 932. Hearing the complaint, and dismissing it or discharging the apprentice or servant. 933. Preceding sections, not applicable to apprentice with whom money is re- ceived or agreed for. 934. Complaint against master in such case, and direction thereon. 935. If complaint not compromised, the master to be held to appear at sessions. 936. Proceedings thereon and order of the court. 937. Complaint by master against clerk or apprentice, where money is paid or agreed for ; clerk or apprentice, when held to appear at sessions. 938. Proceedings thereon, and order of the court. 939. Indenture or contract of service, how assigned on death of master. 940. Same. § 927. Complaint against apprentice or servant, for absenting himself, or refusing to serve, or for a misdemeanor or ill behavior. If an apprentice or servant, lawfully bound to serve as prescribed by special statutes, wilfully absent himself therefrom, without the leave of his master, or refuse to serve according to his duty, or be guilty of any misdemeanor or ill behavior, his master may make complaint of the facts under oath, before a justice of the peace or police justice in the county, or before the mayor, recorder or city judge of the city where he resides. 676 CODE OF CKIMIl^AL PROCEDUKE. § 928; Warrant, -nrhen complaint is' made in tlie absence of tbe defendant. If the complaint be made in the absence of the defendant, and the facta be prbved to the satisfaction of the magistrate, he must issue a warrant, signed by him, with his name of office, to a peace officer of the county or city, commanding him to arrest the defendant and bring him before the magistrate forthwith, or at a specified time and place, to answer the complaint. § 029. Warrant, by -whom and boiv executed. The peace officer must accordingly execute the warrant, by arresting the defendant and taking him before the magistrate. § 030. Hearing the complaint, and committing or discharging the defendant. The magistrate must immediately, or at a time to which he may, for good cause, adjourn the matter, proceed to hear the allegations and proofs of the parties, and it the complaint appear to be wall founded, must commit the defendant to the county jail, or in the city of New York, to the city prison of that city, for not exceeding one month, at hard labor, where he must be confined in a room with no other person; or may, by a certificate, signed by him with his name of office, discharge the defendant from the service of his master, and the master from all obligations to the defendant. § 931. Complaint against the master, for cruelty, misusage, or violatipn of duty. If a master be guilty of cruelty, misusage, refusal of necessary provisions or cloth- ing, or any other violation of duty Itoward his apprentice or servant, as prescribed by special statutes, or by the indenture or contract of service, the apprentice or servant may make complaint on oath, to aliy of the magistrates mentioned in section 927, who must summon the defendant before him at a specified time and place. . • ,;. § 932. Hearing the complaint, and dismissing it or discharging the apprentice or servant. The magistrate must immediately, or at a time to which he may, for good cause, adjourn- the matter, proceed to hear the allegations and proofs of the parties, and if the complaint be well founded, must, by a certificate under his hands, with his name of office, discharge the apprentice or servant from the service of his master; or if not, he must, by a similar certificate, dismiss the complaint. § 933. Preceding sections, not applicable to apprentice irith whom money is received or agreed for. The preceding sections of this title do not extend to an apprentice, whose master has received, or entitled to receive, a sum of money with him, as a compensation for his instruction. § 934. Complaint against master in such case, and direction thereon. Where money is paid or agreed to be paid, on binding out a clerk or apprentice, he may make the complaint mentioned in section 931, and the magistrate to whom it is made must examine it, as provided in section 932, and on such examination, may make Bueh order and direction between the parties, as the justice of the case may require. § 935. If complaint not compromised, the master to be held to appear, etc. If, in the case mentioned in the last section, the complaint cannot be compromised, the magistrate must take a written undertaking from the master, for his appearance at the next term of the county court of the county, in a sum, with sureties approved by him. SPECIAL PROTCEEDINGS OP A CRIMINAL NATURE. 677 >§ 936. Proceedings thereon and order of the court. Upon hearing the parties, the court may, by an order entered upon the minutes, direct that the clerk or apprentice be discharged from service, and that the money paid or agreed for in binding him put, be. refunded, if paid, to the person who advanced it, or his personal representatives, or if not paid, that it be . discharged, and that any security given therefor be delivered up or canceled. § 937. Complaint by master against clerk or apprentice, where money is paid or agreed for; clerk or apprentice when held to appear, etc. ' The master of a' clerk or apprentice, where money is paid- or agreed for on binding him out, may make the complaint mentioned in section 927, and the ' magistrate to whom it is made must proceed thereupon, as provided in Section 927 to 930, both in- clusive, and may discharge the complaint, or if in his opinion it be well founded, may -take a written undertaking, in a sum and with sureties to be approved by him, for the appearance of the clerk or apprentice at the next term of the county court of the county. § 938. Proceedings thereon and order of the court. Upon hearing tlie parties, tlie court may proceed as provided in section 936, and may punish the clerk or apprentice by fine or imprisonment, or both, aa for a misdemeanor. §§ 939 and 940. [Bepealed, 1896, chap. 272.] TITLE' X. OP CRIMINAL STATISTICS. Section 941. Statement of district attorney. 942. Statement of clerk of court of special sessions in New York. 943. Statement to secretary of state by county clerk. 944. Penalty for neglect. 944a. Secretary of state to file statement and furnish copies. 945. Secretary of state to report to legislature. 946. Secretary of state to furnish forms. § 941. [Am'd, 1901.1 Statement of district attorney. Within ten days after the adjournment of any criminal court of record in this state, Jhe district attorney of the county in which the court shall be held, shall furnish to the clerk of the county a certified statement containing the names of all persons con- victed of crime in said court; the crime for which convicted; whether the conviction was upon a trial or upon a plea of guilty and whether sentence was suspended or the defendant placed on probation; the cases in which counsel were assigned by the court to defend the defendant; the sex, age, nativity, residence and occupation of the defend- ant; whether married or single; the degree of education and religious instruction; whether parents are living or dead; whether temperate or intemperate, and whether before convicted or not of any crime, and any other information regarding them as may seem to him expedient. If necessary in order to obtain information of these facts, the defendant may be interrogated upon oath in court by the district attorney before judgment is pronounced. He shall also furnish to the clerk of the court a certified ■statement containing the names of all probation officers appointed by the court, with their address and date of appointment. 678 CODE OF CEIMINAL PEOOEDUKE. § 942. [Am'd, 1901.1 Statement of clerk of court of special sessions la New York. The clerk or deputy clerk of the court of special sessions in the city and county of New York shall on or before the first day of February, eighteen hundred and ninety- five, and quarterly thereafter, transmit to the secretary of state a tabulated and certified statement, in the form prescribed by the secretary of state, containing the name of every person convicted of a crime, of every person against whom the sentence was suspended, and of every person placed on probation in such court, after October thirty-first, eighteen hundred and ninety-four, and since the date of the closing of each preceding quarterly report; a description of the ofi'ense of which such person was convicted; whether the conviction was upon a trial or upon a plea of guilty; and the date of the conviction; and also a certified statement containing the names of all probation officers appointed by the court, with their address and date of appointment. The police clerks of the city magistrates of the city of New York, shall on or before February first, nineteen hundred and one, and annually thereafter, transmit to the secretary of state, a tabulated statement made from their records, showing the number of males and females convicted of crime during each month in the preceding quarter in the several courts of such city magistrates; the number convicted of each oflfenae, the number sentenced, the number fined, the number of those against whom sentence was suspended, and the number placed on probation; and shaU also furnish a certified statement containing the names of all probation officers appointed by the magistrates, with their address and date of appointment. Such statements shall be in the form prescribed by the secretary of state. § 943. [Am'd, 1901.] Statements to secretary of state by county clerk. On or before the first day of February, eighteen hundred and ninety-five, and quar- terly thereafter, the clerk of each county shall transmit to the secretary of state a tabulated and certified statement, in the form prescribed by the secretary of state, of all the matters contained in the statements filed with such clerks by the district attor- ney of such county after October thirty-first, eighteen hundred and ninety-four; and of the name of each person shown to be convicted by a court of special sessions by the certificate of conviction filed with him by magistrates ho'.ding courts of special ses- sions after October thirty-first, eighteen hundred and ninety-four, and since the date of the closing of each last preceding quarterly report made after October thirty-first, eighteen hundred and ninety-four, and since the date of tlie closing of each last preced- ing quarterly report made after October thirty-first, eighteen hundred and ninety-four, and showing the offense for which each person was so convicted; whether the conviction was upon a trial or upon a plea of guilty; the sentence imposed whether the sentence was suspended, and whether the defendant was placed on probation. Said certified statement shall also contain the names of all probation officers appointed by said courts of special sessions, with their address and the date of their appointment. § 944. Id. For every neglect of any justice, magistrate or clerk to comply with the require- ments of this title, he shall forfeit the sum of fifty dollars, to be recovered by a civil action in the name of the people of the state. § 944-a. [Added, 1909.] Secretary of state to file statements and furnisk copies. The secretary of state shall file such statement furnished by the clerk of each county, and whenever required, by the attorney-general or district attorney of any county, shall furnish an exemplification of any such statement or of a part thereof, under the seal of his office, without charging any fees therefor; which exemplification shall SPECIAL PKOCEEDINGS OF A CRIMINAL NATUEE. 6Y9 be sufiScient evidence on the trial of any person for a second or subsequent offense, of the conviction stated in such statement. But neither such statement, nor the exempli- fication thereof, shall in any other case, be evidence of such conviction, § 94:5. Secretary of state to report to legislature. The secretary of state shall, on or before March first, in each year, cause all the information and statistics contained in the foregoing certified statements made to him by the several county clerks, to be compiled and tabulated in convenient form for reference, and so arranged that each fact shall appear under its appropriate column and heading, and subdivided according to the crime or offense charged, and transmit the same to the legislature. § 946. [Am'd, 1901.] Secretary of state to fnrnish forms. The secretary of state shall cause this title to be published with forms and instruc- tions for the execution of the duties therein prescribed, and copies thereof to be fur- nished annually to each county clerk. The forms furnished by the secretary of state as herein provided, shall contain in tabluated form, the nature of every offense upon which a conviction was had, the court before which the defendant was convicted, the character of the sentence imposed, the cases where defendant had been previously con- victed, the cases where sentence was suspended, the cases where the defendant was placed upon probation, and the cases where the probation was revoked, together with the age, sex, nativity and residence of the defendant. And a, suificient number of copies of this title, and of such instructions, and of the forms to be used by the dis- trict attorney, or clerk or deputy clerk of the court of special sessions of the city and county of New York, shall also be furnished to each clerk to enable him to furnisli at least one copy thereof annually to the district attorney, and the clerk of the court of special sessions of the city and county of New York and the county clerk shall dis- tribute the copies of this title and of such forms and instructions accordingly, and when said county clerk is not a salaried officer his disbursements and compensation for his services under this act shall be a county charge. The expense of the secretary of state in publishing this title and distributing copies thereof, and of such forms and instructions as are herein required, shall be paid by the treasurer of the state, upon the warrant of the comptroller, from moneys in the treasury not otherwise appropriated. TITLE XI. MISCELLANEOnS PROVISIONS, EESPEOTINQ SPECIAL PKOCEEDINGS OP A CBIMINAL NATUBEL Section 950. Parties to a special proceeding, how designated. 951. Provisions respecting entitling affidavits, applicable. 952. Courts and magistrates to issue subpoenas, and punish disobedience of witnesses. § 950. Parties to a special proceeding, Iiow designated. The parties prosecuting a special proceeding of a criminal nature, is designated in this code as the complainant, and the adverse party as the defendant. § 951; Provisions respecting, entitling affidavits, applicable. The provisions of this code, in respect to entitling affidavits in a criminal action, are applicable to special proceedings of a criminal nature. 680 CODE OS' CKIMINAi; PKOCEDUEiE. ■ g 952. Courts and magistrates to issue subpoenas, and punisli disobedience of iritnesses. All courts and magis-ttates having before them special proceedings of a criminal nature, may issue subpoenas for witnesses, and punish their disobedience in the same manner as in criminal actions. TITLE XIIi YIOtATIONS OF rE3 PEOVISIONS OP THE PENAL LAW RELATING TO THE MANUFACTUBE OK SALE OF SPUEIOtrS SILVEEWAEE OE GOLDWABE. [Added by L. 1909, Ch. 66, § 3. In effect Feb. 13, 1909.] Section 952a. Issue of summons. ■ 952b. Service of summons. 952c. Investigation of the charge. 952d.- Discharge of defendant. 952e. Bond of manufacturer or dealer. 952f. Action on the bond. 952g. Recovery on bond a bar to subsequent criminal prosecution § 952-a. [Added, 1909.] Issue of summons. Upon, any information against a person, firm, corporation or association for viola- tion of sections four hundred and twenty-two, four hundred and twenty-three, four and twenty-four, four hundred and twenty-five, four hundred and twenty-six, four hundred and twenty-seven, four hundred and twenty-eight, four hundred and twenty- nine and four hundred and thirty-one of the penal law, the magistrate must issue a Bummoris in substantially the form prescribed in section six hundred and seventy-six,' signed by him, with his name of oiRce, requiring the accused to appear before him at a specified time and place to answer the charge; the time to be not more than twenty days after the issuing of the summons. g 952-b. [Added, 1909.] Service of summons. The summons must be served by delivering a copy thereof and showing the original to the defendant; or, if the defendant be a corporatioti, by delivering a copy thereof and showing the original to the president or other head of the corporation; or, to the secretary, cashier, or managing agent thereof. ' § 952-c. [Added, 1909.] Investigation of the cbarge, . At the time appointed the magistrate must proceed to investigate the charge, in the manner provided by law for the investigation of a charge against any natural person or corporation brought before- him, so far as those proceedings are applicable, except as provided by sections nine hundred and fifty-two-d, and nine hundred and fifty-tw'o-e, nine hundred and fifty- tw6-f, and *ine hundred and fifty -two-g. § D52-d. [Added, 1909.] Disobarge of defendant. If it shall appear to the magistrate upon the investigation that the defendant has filed a bond as provided in section nine hundred and fifty-two-e, and that the article of merchandise concerning which the charge is brought was not made or altered in any way by the defendant, and that it was acquired by him in good faith as an article of the standard of purity prescribed in sections four hundred and twenty-two, four hun- dred and twenty-three, four hundred and twenty-four, four hundred and twenty-five, four ' hundred and twenty-six, four hundred and twenty-seven, four hundred and twenty-eight, four hundred and twenty-nine and four hundred and thirty-one of the SPECIAL PEOCEEDINGS OF A CKIMINAL i^ATUEE. 681 penal law, and without knowledge or information on the part of the defendants to the contrary, the charge must be dismissed and the defendant discharged, provided the person from whom the defendant acquired the article is within the jurisdiction of the court or has likewise filed a similar bond, which bond is in full force and effect at the time of the sale by said defendant, and provided also the defendant furnish to the magistrate an affidavit stating the name, residence and place of business of the person from whom the article was acquired by the defendant, and the circumstances of its acquisition, together with an undertaking with two sufficient sureties, in a sum to he fixed by the magistrate, conditioned for the appearance of the defendant to testify in any prosecution, action, or proceeding against the person from whom t'.ie article was acquired, or in any action or proceeding upon the bond given by such person. § 052-e. [Added, 1£00.] Bond of manufacturer or dealer. Any manufacturer of silverware or go'.dware, or any wholesale or retail dealer in silverware or goldware, upon payment of a fee of fifteen dollars', may file in the oCice of the secretary of state a bond, executed by himself as principal, and by a fidelity or surety company authorized by the laws of this state to transact business, or by him- self as principal and two sufficient sureties, both of whom must be freeholders, and at least one of whom must be a resident of this state and a freeholder therein, which bond shall be approved by a justice of the supreme court, and be subject to the pro- vision of chapter eight, title six, article fifth, of the code of civil procedure, so far as tliey arc applicable, in the penal sum of five thousand dollars, conditioned for faith- ful compliance with all the provisions of sections four hundred and twenty-two, four hundred and twenty-three, four hundred and twenty-four, four hundred and twenty- five, four hundred and twenty-six, four hundred and twenty-seven, four hundred and twenty-eight, four hundred and twenty-nine and four hundred and thirty-one of the penal law. § C52-f. [Added, 1909.] Action on the bond. Upon satisfactory proof by affidavit to the attorney-general, of a violation of any provisions of sections four hundred and twenty-two, four hundred and twenty-three, four hifndred and twenty-four, four hundred and twenty-five, four hundred and twenty-six, four hundred and twenty-seven, four hundred and twenty-eight, four hun- dred and twenty-nine and four hundred and thirty-one of the penal law, it sliall be his duty to declare the bond provided for in the preceding section forfeited, and to forth- with proceed on behalf of the people of the state of New York to recover, as liquidated damages, the whole of the sum specified therein from the parties thereto, against whom judgment for the entire amount must be rendered upon proof duly made of a violation by the principal of any provision of the said sections of the penal law, unless the principal shall already have been convicted in a criminal prosecution for the same violation. If, however, at any time before the recovery of judgment upon such for- feiture, the principal shall appear before the magistrate who issued such warrant or summons, so that the charge against him may be duly examined and proceeded with criminally, any proceedings before the attorney-general shall be discontinued, and if the bond shall have been meanwhile forfeited, such forfeiture shall be rescinded by the attorney-general, and any subsequent action thereon thereby rendered null and inoperative. § g52-g. [Added, 1909.] BecoTcry on tond a bar to subseciuent criminal prosecution. Proof of the actual recovery by the people of the state of the whole amount named in a bond given pursuant to the provisions of section nine hundred and flfty-two-e, may be pleaded in bar of any subsequent criminal prosecution for the same violation for which the recovery upon the bond was had. 682 CODE or CRIMINAL PEOCEDUEE. GENERAL PROVISIONS AND DEFINITIONS APPLICABLE TO THIS CODE. Section 953. Abatement of nuisance. 954. No part of this code retroactive, unless expressly so declared, 058. Definition of "signature." 959. Definition of " magistrate " 960. Definition of " peace officer." 961. Definition of " county court." 962. To what actions and proceedings this code applies. 963. When code to take effect. § 953. Abatement of nuisance. Where a person is convicted of keeping or maintaining a public nuisance, and sen- tenced to punishment, the court may, in its judgment, in addition to or in place of other punishment, direct that the nuisance be abated, and issue an order to the sheriff of the proper county to execute the judgment as therein directed. § 954. No part of tbis code retroactive, unless expressly so declared. No part of this code is retroactive, unless expressly so declared. §§ 955-957. [Repealed.] § 958. Definition of "signature." Tlie term "signature" includes a mark, when the person cannot write; his name being written near it, and the mark being witnessed by a person who writes his own name as a witness, except to an affidavit or deposition, or a paper executed before a judicial officer; in which case the attestation of the officer is sufficient. § 959. Definition of "magistrate." Unless when otherwise provided the term " magistrate " signifies any one of the magistrates mentioned in section 147. § 960. Definition of " peace officer." Unless when otherwise provided, the term " peace officer " signifies any one of the officers mentioned in section 154. § 961. Definition of " county court." The term " county court " includes the " court of general sessions in the city and county of New York," whenever such inclusion does not conflict with other provisions of this code. § 962. To ffbat actions and proceedings tbis code applies. This code applies to criminal actions, and to all other proceedings in criminal cases which are herein provided for, from the time when it takes efi'ect; but all such actions and proceedings, theretofore commenced, must be conducted in the same manner as if this code had not been passed; except that if any local statute confined, by its terms, to a town or villege or to a county or city other than the city and county of New York, any proceeding is prescribed, in addition to those prescribed by this code and not inconsistent with it, the same shall remain unafi'ected by it. § 963. Wben Code to take effect. This code shall take eHect on the first day of September, 1881. When construed in connection with other statutes, it must be deemed to have been enacted on the fourth day of January, 1881, so that any statute enacted after that day is to have the same effect as if it had been enacted after this code. FORMS IN CRIMINAL ACTIONS AND PROCEEDINGS AND OF INFORMATIONS. COMPLAINTS AND PLEADINGS IN COURTS OF SPECIAL SESSIONS POLICE COURTS AND BEFORE MAGISTRATES FORMS. No. 1. Complaint on application for surety of the peace. 2. Deposition of witnesses on foregoing application. 3. Warrant of arrest. 4. Undertaking to keep the peace. 5. Warrant of commitment when prisoner fails to give surety. 6. Warrant for crime threatened in presence of magistrate. 7. Warrant to release a prisoner committed, he having subsequently given the security required. 8 Discharge for insufficient evidence. 9. General form of warrant of arrest. 10. Affidavit of handwriting of justice. 11. Indorsement of warrant when defendant is to be arrested in another county. 12. Return of constable to warrant of arrest. 13. Return of constable where all of defendants cannot be found. 14. Return of warrant where magistrate who issued warrant is absent. 15. Warrant after prisoner has escaped. 16. Id., for fugitive from another state. 17. Commitment of fugitive. 18. Notice of commitment of a fugitive from justice to the district attorney. 19. Commitment for examination. 20. Record informing accused of his right to make statement. 21 Statement. 22. Authentication of statement. 23. Note of waiver. 24. Testimony, how taken and authenticated. 25. Indorsement for the discharge of a prisoner in court. 26. Order of defendant's discharge where he is in jail. 27. Order of commitment. 28. Order for commitment without bail. 29. Certificate of bail. 30. Indorsement on the depositions and statement to be made by the justice in case the prisoner is discharged. 31. Id.; when held to answer. 32. Undertaking for appearance before magistrate issuing warrant given in another county. 33. Undertaking on adjournment of examination. 35. Undertaking for the appearance of witnesses. 36. Id. 37. Undertaking of disorderly person, under subdivision 1 and 2 of § 899. 38. In other cases. 39. Undertaking on being held to answer. 40. Undertaking upon re-commitment. 41. Undertaking to appear ^t special sessions. 42. Undertaking for support of bastard. 43. Id.; under subdivision 2 of § 844. 44. Undertaking on adjournment in bastardy case. 45. Undertaking of parent, etc. 685 686 CODE OF CEIMINAL PKOCEDUKE. No. 46. Information for misdemeanor. 47. Information of an affray. 48. Information of an assault and battery.: 49. Information in relating to dog fighting. 50. Information against keeper of bawdy house. 51. Information for bigamy. 52. Information for assaulting an officer. 53. Information for perjury. 54. Information for false pretence. 55. Information for arson, first and second degree. 56. Information for arson, second and third degree. 57. Information for larceny. 68. Information for burglary, first degree, and larceny. 59. Information for refusing to aid an officer. 60. Information for interfering with an officer. 61. Information for robbery in the first degree. 62. Information for burglary and larceny. 63. Information for seduction. 64. Information for forgery. 65. Information for assault with sharp weapon. 66. Information for rape. 67. Information for assault with intent to kill. 68. Information against child begging, etc. 69. Information for search warrant. 70. Information for maiming. 71. Information for receiving stolen goods. 72. Information for larceny. 73. Information for libel. 74. Information against disorderly person under § 899, subdivision 1 75. Information against disorderly person under § 899, subdivision 2. 76. Information against disorderly person. 77. Information against disorderly person. 78. Information against disorderly person. 79. Information against disorderly person. 80. Information against vagrant. 81. Information for disorderly child. 82. Information against gambling place. 83. Information for se'.ling mortgaged chattels. 84. Information for public Intoxication. 85. Information for malicious mischief. 86. Affidavit to obtain search warrant. 88. Affidavit to inventory on search warrant. 87. Search warrant. 89. Keturn to search warrant. 90. Warrant for disorderly person. 91. Return to warrant. 92. Order that arrest may be made on Sunday. 93. Permission to execute warrant in another county. 94. Commitment for intoxication. 95. Warrant for misdemeanor. 86. Warrant for refusing to obey subpoena. 97. Warrant against vagrant. 98. Warrant to commit a vagrant. FORMS. 687 No. 99. Warrant of commitment of disorderly person. 100. Warrant of commitment for failure to give security to support wife and children. 101. Commitment on warrant for felony. 102. Commitment. 103. Statement and questions to be put by justice to the defendant. 104. Order granting bail. 105. Order for discharge on giving bail. 106. Subpoena. 107. Subpoena duces tecum. 108. Return of service of subpoena. 109. Satisfaction for misdem3anor. 110. Order compromising misdemeanor. 111. Order to discliarge defendant from custody. 112. Summons to corporation. 113. Notice to district attorney. 114. Affidavit for removal. 115. Certificate of county judge. 116. Venire. 117. Return of venire. 118. Order that prosecutor pay the costs. 119. Judgment against prosecutor for costs. 120. Certificate of conviction. 121. Certified copy of certificate. 122. Affidavit on appeal. 123. Undertaking on appeal. 126. Application by overseer of the poor for an examination as to charge of bastardy. 127. Examination of mother of bastard before its birth. 128. Warrant for arrest of putative father. 129. Subpoena in bastardy case. 130. Order of filiation. 131. Warrant of commitment of father of bastard. 132. Warrant for commitment of mother refusing to disclose father. 133. Indorsement to be made on warrant when executed in another county. 134. Information against vagrant child. 135. Summons to parent of vagrant child. Sections Eepee to the Code of Cbiminai. Peoceduee. No. 1. Complaint on Application for Surety of the Peace. County of , ss.: A. B., of the town of , county of , and state of New York, being duly sworn, says that C. D. of the same town, has threatened to commit an offence against the person of deponent, to wit, to shoot, and kill deponent (here state all the facts), and that this deponent has just cause to fear that the said C. D. will carry the above threats into effect (if against property say against the property in- stead of against the person). Deponent therefore prays that legal process issue, and that surety of the peace against the said C. D. be granted to deponent; that this complaint is made in good faith and solely because of the above threats and that the deponent has reason to .688 ^ CODE OF CEIMEs^AL TEOCEDUEE. believe said C. D. will carry his. said threats into effect and do bodily harm' and injury to deponent.. ■; Wherefoke^ Deponent prays tliat a warrant naay issue for the. arrest of the said C. D. and that he be dealt with according to law. A. B. Subscribed and sworn to before me J this .... day of ,19... j C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 84.] No. 2. Deposition of Witnesses, on the Foregoing Application. County op , ss.: L. M. and N. 0., witnesses produced befOTS me by A. B. upon. his complaint against C. D., this day verified before me, being duly sworn each for himself says (here set forth all the facts within the knowledge of the witnesses bearing upon the complaint.) L. M. N. 0. Subscribed and sworn to before me ) this .... day of , 19 . . . \ C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 85.] No. 3. Warrant of Arrest. County OF ..... . ....,««.; • =; In the Name of the People of the State of New York : To any peace officer of the county of : • ' Whereas, A. B., of the town of . . . . . . v. . . 'it j-in the said county, did, on the day of , 19. ., make a verified complaint in writing before me, that C. D., of the same town, did threaten to commit the crime of , against the person of him, the said A. B., and said A. B., alleging that there is just reason to fear the commission of said threatened crimfr, and praying that a warrant issue for the arrest of said C. D., and that he be dealt with according to law, and after examining L. M. and N. 0., on oath touching the said complaint and reducing such examination to writing and the same having been duly subscribed, and it appearing therefrom that there is just reason and cause to fear the commission of the crime threatened by said C. D. and that he will carry said threats into effect. These are, therefore, to command you forthwith to arrest the said C. D. and bring him before me at m.y office in the town of , in said county, to be dealt with according to law. Given under my hand at the town of , in said county, this ...... day of , 19. .. C. W. H., [Code of Criminal Procedure, § 86.] Justice of the Peace. No. 4. Undertaking to Keep the Peace. State of New York, 1 County of f Whereas, an information Was laid before C. W. H., justice of the peace of the town of , in said county on the ; .. day of .....;..... ., 19. ., that C. D. FORMS. 689 had threatened to shoot and kill A. B., and said justice having examined on oath tlie complainant and witnesses produced by him and reduced such examination to writing and caused tlie same to be duly subscribed ; and Whereas, a warrant was thereupon issued for the arrest of said C. D., and it appear- ing by the evidence taken in the proceedings before said justice that there is just reason to fear the commission of the threatened crime by the said C. D., and said C. D. having been required by said justice to give security in the sum of dollars to keep the peace pursuant to section 80 of the Code of Criminal Procedure, Now, therefore, we, X. Y. and M. N., both of the town of , said county, do hereby severally acknowledge ourselves to be indebted to the people of the state of New York in the sum of dollars, to be well and truly paid, if default shall be made in the following conditions: The conditions of this obligation are such, that if the said C. D. shall personally appear at the next county court to ha held in and for the said county at the court house in the village of and abide its order, and shall in the meantime keep the peace towards the people of the state of New York, and particularly towards A. B., then this obligation to be void, otherwise to remain in full force. [Date] [Signatures.] Add acknowledgment and affidavit of sureties aa in Form No. 32. [Code of Criminal Procedure, § 89.] No. 5. Warrant of Commitment Wlien Prisoner Fails to Give Snrety. State op New Yoek, 1 County of \ 7m the Name of the People of the Btate of New York: To any constable of the county of , and to the keeper of the common jail of the county of ; Whereas, C. D., of the town of in said county was charged upon an information duly laid before me, the undersigned justice of the peace of the town of , with having threatened to shoot and kill A. B., and a warrant having been issued for the arrest of the said C. D., and it appearing by the evidence in the proceedings thereupon had before me, said justice, that there was just reason to fear the commission of such threatened crime by the said C. D., and said C. D. having been required by me to enter into an undertaking with sufficient sureties in the sum of dollars for his appearance in person at the next County Court to be held in and for said county for the trial of indictments, and to abide its order, and in the meantime to keep the peace towards the people of the state of New York, and particularly towards A. B., the complainant; and Whebeas, said C. D. has neglected and omitted to give the undertaking so required of him. These are therefore to command you, the said constable, forthwith to convey and deliver said C. D. into the custody of the keeper of the common jail of said county; and you, the said keeper, are hereby required to receive the said C. D. into your custody in said jail and him there safely keep and detain until he shall give the security required as aforesaid, or be otherwise discharged according to law. Given under my hand at the said town of , this day of ,., 19... C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 90.] 44 690 CODE OF CEIMINAL PEOCEDUKE. No. 6. Warrant for Crime Threatened in the Presence of a magistrate. State op New Yobk,"| County of ^bs.: Town of J In the Name of the People of the State of New York: To any constalle of the county of , and to the keeper of the common jail of the county of : WHEBEis, C. D. of the town of in said county on the day of , 19... at the town hall in the village of , in said town and county, in the presence of the undersigned justice of the peace, threatened to commit the crime of against the person of A. B., and there appearing to be just reason to fear the commission of the crime threatened, and the said C. I>. having then and there been required by me, without other proof, to enter into an undertaking in the sum of dollars with sufiBcient sureties to abide tlie order of the next County Court to be held in and for said county for the trial of indictments, and in the meantime to keep the peace towards the people of the State of.New York and especially towards A. B., and the said C. D. having refused to eiiter into said undertaking so required of him, These are therefore to command you, the said constable, forthwith to convey and deliver the said C. D. into the custody of the keeper of the common jail of said county j and you, the said keeper, are hereby required to receive the said C. D. into your custody in said jail and him safely keep and detain there until he shall give such undertaking or be discharged according to law. (liven under my hand at the said of this day of , 19... C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 93.] No. 7. Warrant to Release a Prisoner Committed, He Having Snliseqnentlx Given tlie Security Reqnired. COtTNTT OP ss.: In the Name of the People of the State of New York : To the keeper of the common jail of said county: This is to command you forthwith to release from your custody the body of C. D., if he is not detained by you for any cause other than that specified in the warrant of commitment by C. W. H., justice of tue peace of the town of , said county, on the day of , 19 . . , for not finding sureties of the peace upon the complaint of A. B., he, the said C. D., having subsequent to his said commit- ment found sureties before us; and let this be your suflScient warrant for your so doing. Given under our hands at the town of , in said county, on the day of ,19... C. W. H., Justice of the Peace, J. H., Justice of the Peace. [Code of Criminal Procedure, § 91.] FOEMS. 691 No. 8. Disoharge for Insufficient Evidence. County op , ss.: It appearing to me, from all the evidence and proofs submitted on the examination herein, that there is not sufficient reason or cause to fear the commission of the crime in the complaint herein stated to have been threatened, I do hereby order that the said C. D. be discharged. Dated this day of , 19 . . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 88.] No. 9. General Form of Warrant of Arrest. COUNTT OP SS.: In the Name of the People of the State of New York: To any peace officer in the county of : Information on oath having been laid before me this day that the crime of has been committed in the town of , said county, and accusing C. D. thereof. You are, therefore, commanded forthwith to arrest the above named C. D. and bring him before me, at my office in the town of , said county, or in case of my absence or inability to act, before the nearest or most accessible magistrate in this county. Sated at this day of 19 . . . C. W. H, Justice of the Peace. [Code of Criminal Procedure, § 151.] No. 10. Affidavit of Handwriting of Justice. COTTNTT OP , SS.: M. N., being duly sworn, says that he is acquainted with C. W. H., the justice who issued the annexed warrant, that he knows the handwriting of said justice, and that the signature attached thereto is the genuine signature of said C. W. H., and that the said warrant was issued and signed by said C. W. H. in his presence. X. Y. Z. Subscribed and sworn to before me 7 this day of , 19 . . . | J. H., Justice of the Peace. [Code of Criminal Procedure, § 157.] No. 11. Indorsement of Warrant Wlien Defendant Is to Be Arrested in Another Connty. County op , ss.: Sufficient proof upon oath having been made before me, J. H., a justice of the peace. In said county, that the name of C. W. H., attached to the warrant of arrest, is the 692 CODE or CKIMINAL PtOCEDUEE. true and genuine signature of C. W. H., the justice of the peace named in the said warrant, I do hereby authorize and direct any officer to whom the said warrant is directed to execute the same within the said county of Dated at , this day of , 19. . . J. H., Justice of the Peace. [Code of Criminal Procedure, § 157.] No. 12. Return of Constable to Warrant of Arrest. I have arrested the defendant named herein, and have him here in my custody and ■ possession as commanded herein. Dated this day of ., 19. . , G. B., Constable. No. 13. Betnrn of Constable IVhere All of Defendants Cannot Be Found. I have arrested and have now in my custody, J. S. and W. M., two of the defendants named herein, but I cannot find K. C, one of the defendants named herein. Dated this day of , 19. . . a. B., Constable. No. 14. Betnrn of Constable Where Magistrate Who Issued Warrant Is Absent. As commanded herein, 1 have arrested R. C, the defendant named herein, and I hereby make return that immediately after making the arrest I brouglit the said defendant R. C. to the office of C. W. H., the magistrate who issued the warrant, but. that the said magistrate was absent therefrom. Dated this day of , 19. . . G. B.. Constable. [Code of Criminal Procedure, §§ 164, 166.] No. 15. Warrant After Prisoner Has Escaped. State of New York, 1 County pf f**"' In the Name of the People of the State of New York: To any peace officer m the county of : An information upon oath having been laid before me this day, by A. B., a constable of said county, to whom a warrant had heretofore been issued for the arrest of C. U., and that he had arrested the said C. D., by virtue thereof, and that thereafter, at the town of , in the county of , and on the day of , 19 . . , the said C. D. escaped from the custody of said A. B. Now, therefore, you are again commanded to forthwith arrest the said C. D. and bring him before me at my office in the town of , in said county, to be dealt with according to law, or in case of my absence or inability to act, before the nearest or most accessible magistrate in this county. Given under my hand at the town of , this day of '< 19... C. W. H., Justice of the Peace. FQEMS. . 693 No. 16. Id.; JE!«i- Fugitive from Another State. State op New Yoek, 1 County of j®*"' In the Name of the People of the Stdie of New York : To any peace officer in the county of : .^ An information liaying been tliia day duly made upon oatli before me by A. B., lliafc C. D. had committed the crime of in the state of Kansas, on the day of , 19. ., and is now in the county of , this state, and a fugitive frgm justice; you are therefore hereby commanded forthwith to arrest the abo^e named C. D. and bring him before me at my office in the town of , in said county to be dealt with according to law, or in ease of my absence or inability to act, before the nearest or most accessible magistrate in this county. Given under my hand at the town of , this day of 19... ., C. W. H., Justice of tlie Peace. [ [Code of Criminal Procedure, §§ 827, 828.] No. 17. Commitment of Fugitive. COUNTTT OF . , SS.: CI)., having been brought before me under the annexed warrant, and from an examination herein had by me, it appears that the said C. D. is guilty of the Crime cliarged, and is a fugitive from justice as in Baid warrant set forth; I do therefore commit the said C. D. to tlie keeper of the common jail of the county of , for the space of days (not to exceed thirty days), or until he be discharged by due course of law. Given under my hand, at the town of , this day of 19,.,. C. W. H., Justice of the Peace. . fCode of Criminal Procedure, §§ 829, 830.] No. IS. Notice of Commitment of a Fugitive from Justice to the District Attorney. To A. M., Esq., district attorney of the county of : Sib. — Take notice, tliat I have this day committed C. D., a fugitive from justice from the state of Kansas, cliarged witli the crime of , committed in the said state of Kansas, to the keeper of the common jail of the county of to await tlie action of the authorities hereiii. Dated this day of 19. . . Yours, &c., C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 832.] 694 CODE OF CKIMINAI PKOCEDUEE. Ifo. 19. Commitment for Examination. State or New Yoek, 1 °f 1' County In the Name of the People of the State of New York: To the sheriff of the oomty, of : A. B., having been brought before me upon the charge of having (stating briefly the nature of the crime) is committed for examination to the sheriff of the county of Dated at this day of , 19. . . C. W. H., Justice of the Peace, [Code of Criminal Procedure, § 193.] No. 20. Record Informing Accused of His Biglit to Make a Statement. When the examination of the witnesses for the people had been closed and before any other proceedings or step herein had been taken, the defendant was informed of his right to make a statement in relation to the charge against him, and the substance of section 196 of the Code of Criminal Procedure was stated to him, and after being so informed he expressly waived his right to make the same, C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 197.] No. 21. Statement. Question. What is your name and age ? Answer Question. Where were you born ? Answer Questioii. Where do you reside and how long have you resided there? Answer Question. What is your business or profession ? Answer Question. Give any explanation you may think proper of the circumstances appearing in the testimony against you, and state any facts which you think will tend to your exculpation. Answer Dated this day of , 19. . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 198.] No. 22. Anthentication of Statement. JUSTICE'S COURT. ") State of New Yoek, \.ss.: County of J I, the undersigned, hereby certify that when the examination of witnesses for the people had been closed, and before any other procedings herein had been taken, X informed the said defendant that he had a right to make a statement in relation to the charges against him, and the nature of the charge was stated to him; that the state- ment was designed to enable him, if he saw fit, to answer the charge and to explain the facts alleged against him; that he was at liberty to waive making a statement, and that his waiver would not be used against him on the trial; and after he was so informed he made the following statement (here insert questions and answers as in FORMS. 695 the preceding form) : That I requested said defendant to sign said statement at the end thereof, which he refused to do, stating as his reason for such refusal the following (here state the reason given for refusal to sign) : Dated this day of , 19. . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 200.] No. 23. Note o£ Waiver. After the above-named defendant had made the foregoing statement (or after lie waived the making thereof, as the case may be) the following witnesses were produced, sworn and examined on behalf of the defendant: (Here state the proceedings had.) Dated this day of , 19. . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 201.] , No. 24. Testimony, Hour Taken and Authenticated. Before C. W. H., justice of the peace, county of , on the day of , 19... J. K., being duly sworn, deposes and says: Question. What is your name and age? Answer Question. Where do you reside ? Answer Question. What is your business or profession ? Answer , (Here insert the evidence given.) I, C. W. H., a justice of the peace, of the town of , said county, do hereby certify that the above is the testimony given by J. K., a witness sworn on the part of the defendant, who stated his name to be J. K., his age to be his profession or business to be Dated this ; . . . day of 19. . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 204.] No. 25. Indorsement for tlio Discharge of a Prisoner in Conrt. Having duly examined witnesses and considered the evidence against the defendant, C. D., and there being no sufficient cause to believe him guilty of the offence charged, I hereby order him to be discharged. Dated this . , • day of , 19. . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 207.] CODE OF CKIMINAL PEOCEDUKE. No. 26. Order of Defendant's Disoliarge Where He Is in Jail. County of , ss.: To the keeper of the common jail of the county of : ' You are hereby required, upon receiving this, to release from your custody CD., who was committed to jail by me, C. W. H., justice of the peace in tlie county of charged with the crime of (here set forth the crime for which he was committed). i Dated this day of , 19. . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 207.] No. 27. Order of Commitment. It appearing to me by the within depositions and statement that the crime therein mentioned has been committed, and that there is sufficient cause to believe the within named C. D. guilty thereof, I order that he be held to answer the same.* Dated this day of 19... ' C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 208.] No. 28. Order for Commitment Withont Bail. It appearing to me by the within depositions and statement that the crime therein mentioned has been committed, and that there is sufficient cause to believe the within named C. D. guilty thereof, I order that he be held to answer the same and that he be committed to the sheriff of the county of Dated this day of , 19. . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 209.] No. 29. Certificate of Bail. [As in Form No. 27 to the *, then add] : " and I have admitted him to bail to answer by the undertaking hereto annexed." Dated this day of , 19. . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 210.] . No. 30. Indorsement on the Depositions and Statement to Be Made by the Justice in Case the Prisoner Is Discharged. There being no sufficient cause to believe the within named C. D. guilty of the offence within mentioned, I order him to be discharged. Dated this day of , 19. . C. W. H.. Justice of the Peace. [Code of Criminal Procedure, § 207.] FOKMS. 697 No. 31. Id.; When Held to Answer. It appearing to me by the within depositions and statement (if any) that the crime therein mentioned (or any other crime according to tl'e fact, stating generally the nature thereof) has been committed, and that there is sufficient cause to believe the within named C. D. guilty thereof, I order that he be held to answer the same, and that he be admitted to bail in the sum of dollars, and be committed to the slier iff of the county of until he gives such bail. Dated this day of , 19 . . . C. W. H., Justice of the Peace. (If bail be taken leave out the last clause and add in place tliereof, "and I have admitted him to bail to answer, by the undertaking hereto annexed." § 210.) [Code of Criminal Procedure, §§ 208, 212.] No. 32. Undertaking for Appearance Before Magistrate Issuing Warrant Given in Another County. County op , ss. : We, M. N., of the town of , in the county o* , by occupation a the defendant, and R. O., of the town of , in the county of , by occupation a , and X. Y., of the town of , county of , by occupation a , sureties, do hereby jointly and severally acknowledge ourselves to be indebted to the people of the state of New York in the sum of dollars, to be well and truly paid if default shall be made in the conditions following: The condition of this obligation is that the above-named M. N., having been duly arrested in the county of Albany, and having required the officer making the arrest to take him before a magistrate in the said county of Albany, he has this day been duly brought before me, one of the justices of the peace of the county of Albany. Now, if the said M. N. shall personally appear before the said C. W. H., justice of the peace of the town of , in the county of Schoharie, who issued the warrant herein, at his office on the day of .., 19.., at o'clock in the forenoon on that day, then this obligation to be void, otherwise to remain in full force. Dated this day of 19- • . (Signatures.) County of , ss.: On this day of 19. ., before me, the subscriber, personally came M. N., R. O., and X. Y., to me personally known to be the same persons mentioned and described in and who executed the foregoing undertaking, and they severally acknowledged the execution thereof. ■^- M., Justice of the Peace. County of ss.: R. O and X. Y., both of the town of Knox, in said county, being duly sworn, each for himself says that he is worth the sum of dollars over and above all debts, which he owes or has incurred and exclcsive of property exempt from levy and 898 CODE OF CKIMINAL PKOCEDUEE. sale on execution and that his property consists of, the said R. O.'s property consists of, a farm of acres in the town of said county. The saiJ X. Y.'s property consists of number 21 street, in the city of Cohoes, said county. X Signatures.) Subscribed and sworn to before me ) this day of 19 . . . f A. M., Justice of the Peace. [Code of Criminal Procedure, § 159.] No. 33. Undertaking on Adjonrnment of Examination. State op New Yokk, ' County of An information having been laid before C. W. H., a justice of the peace of the town of , in said county, charging C. D., defendant, with the crime of and he having been brought before said justice for an examination of said charge, and the hearing thereof having been adjourned to the day of , 19 . . . Now, we, 0. D., defendant, of the town , and county of and N. 0., of the town of and county of , by occupation a , and P. R., of the town of , county of , by occupation a , sureties, do hereby jointly and severally undertake that the said C. D., defendant, shall be and appear personally before said justice to be examined for the crime aforesaid, and shall so appear during such examination; and that if he fail to perform either of said conditions that we will pay to the people of the State of New York hundred dollars. Dated at , this day of , 19 . . . (Signatures.) (Add affidavits and acknowledgments as in Form No. 32.) [Code of Criminal Procedure, § 192.] No. 34. Bond to Grand Jnry. [Omitted. See Form No. 39.] No. 35. Undertaking for the Appearance of 'Witnesses. State op New Yoek, f County of ( The defendant above named having been held to answer for the crime of > on the evidence of P. 0., before C. W. H., justice of the peace of the town of , said county, and the said justice being satisfied by evidence and proof on oath, that said P. O. intends to depart from the state, and not to appear and testify at the trial of this cause, and that there is reason to believe therefrom that said witness is an accomplice in the commission of the crime charged, and the said justice having required an undertaking with two sureties for his appearance. Now, therefore, we, P. O., principal, and A. B. and E. F., both of the town of in said county, sureties, do hereby jointly and severally acknowledge ourselves indebted 1o the people of the state of New York in the sum of dollars, to be well and truly paid if default shall be made in the conditions following: rOEMS. 699 The condition of this obligation is such that if the above bounden P. O. shall appear and testify in respect to the charge above mentioned at the next court to be held in and for the county of having authority to inquire, by the intervention of a grand jury, into offences triable in said county of , and shall at all times render himself amenable to the process of the court, then this obligation to be void, else to remain in full force and virtue. (Signatures.) Dated this day of , 19 . . . (Add acknowledgment and affidavits as in Form No. 32.) [Code of Criminal Procedure, § 216.] No. 36. Id. Know all men by these presents: That I, A. B., am firmly held and bound unto the people of the state of New York in the sum of one hundred dollars for which payment well and truly to be made, I bind myself, my heirs, executors, administrators and assigns, jointly and severally by these presents. The condition of this obligation is such that if the said A. B. shall appear as a witness upon the trial of a certain action between the people of the state of New York and C. D., when properly summoned, and give testimony on the trial of said action, then this obligation to be void, otherwise to remain in full force. Dated this day of , 19 . . . (Signature.) (Add acknowledgment as in Form No. 32.) [Code of Criminal Procedure, § 215.] No. 37. Undertaking of Disorderly Person, TTnder Subdivisions I and 2 of Section 899. Whebeas, on the day of 19.., M. N. was brought before C. W. H., a justice of the peace of the town of in the county of , upon a warrant issued by said justice upon the complaint of X. Y. charging the said M. N. with being a disorderly person in that he had actually abandoned his wife and children and left them witliout any adequate means of support, and without provisions or fuel or the means to provide themselves with the same, (or state the facts as they are), and after an examination touching the said offence by said justice the said M. N. was by said justice found guilty of the offence in said complaint alleged and convicted of being a disorderly person in that he had abandoned his wife and children and left them without any adequate support, and the said justice did thereupon require the said M. N. to enter into an undertaking with two sureties approved by said justice in the sum of dollars that the said M. N. will pay to the overseer of the poor of the town of weekly for the space of one year the sum of for the support of his wife and children. Now, therefore, we, M. N. of said town, defendant, and A. B. of said town, by occu- pation a , and C. D., also of said town, by occupation a , sureties, do jointly and severally undertake that the said M. N. shall pay weekly to the overseer of the poor of the town of in said county the sum of dollars, as required by said justice, for the support of the wife and children of the said M. N., or in default of such payment by the said M. N., that we, the said sureties, will pay said weekly sum of dollars to said overseer of the poor. (Signatures.) (Add acknowledgment, affidavit of sureties, and approval of the justice.) [Code of Criminal Procedure, § 901.] TOO CODE OF CKIMINAL PEOCEDUKE. No. 38. In Other Cases. Knoio all men hy these presents: That M. N. of the town of , county of , defendant, C. D. of the town of ' , said county, by occu- pation a , surety, and E. F. of the town of , said county, by occupation a are jointly, severally and firmly held and bound unto the people of the state of New York in the sum of dollars for which payment, well and truly to be made, they bind themselves, their heirs, executors and adminis- trators. Whereas, On the day of , 19 . . , C. D. was duly convicted before C. W. II., a justice of the peace of the town of , said county, of being a disorderly person, in that (here state the acts of which he was convicted), and the justice did thereupon and upon such conviction require the said C. D. to enter into an undertaking with two sureties in the sum of dollars for the good behavior of the said C. D. for the space of one year. Now, therefore, the condition of this obligation is such that if the said C. D. will he of good behavior for the space of one year next ensuing the date hereof, then tliis obligation to be void, otherwise to remain in full force and virtue. Dated this day of , 19 . . . (Signature.) (Add alTidavit and acknowledgment as in Form No. 32.) [Code of Criminal Procedure, § 899.] No. 39. Undertaking on Being Held to Answer. State op New Yoke, | County of ( An order having been made on the day of , 19. ., by C. W. H, a justice of the peace of the town of , said county, that C. D. be held to answer upon a charge of (here state the charge), upon which he has been duly admitted to bail in the sum of dollars; Now, therefore, we, C. D. of the town of , said county, by occupation , the defendant, and E. F. and H. G., both of the town of , said county, by occupation , sureties, hereby undertake that the said C. D. shall appear and answer the said charge in whatever court it may be prosecuted and shall at all times render himself amenable to the process of the court, and if convicted, shall appear for judgment and render himself in execution thereof; and if he fails to perform either of these conditions we will pay to the people of the state of New York the sum of dollars. Dated this day of , 19. . . (Signatures.) (Add affidavits and acknowledgment as in Form No. 32.) [Code of Criminal I'rocedure, § 568.] No. 40. Undertaking Upon Re-oommitment. State of New York, ^ County of ( An order having been made on the day of , 19. ., by the court of special sessions that A. B. be admitted to bail in the sum of dollsii's, in an action pending in that court agninst him, in behalf of the people of the state ot New York upon an information. (Here state its substance.) FOEMS. YOl We, A. B., defendant, and C. D., surety, of the town of , said eonnty, l)y occupation a , and E. F. of the town of , said comity, by occupation a , sureties, hereby, jointly and severaHy, undertake that the above-named A. B. shall appear in that or any other court in which his appearance may be lawfully required, upon that information, ani shall at all times render himself amenable to its orders and process, and appear for judgment and surrender himself in execution thereof; or if ho fails to perform either of these conditions, we will pay to the people of the state of New York the sum of dollars. Dated at the town of , this day of , 19 . . . (Signatures.) (Add affidavit and acknowledgment as in Form No. 32.) [Code of Criminal Procedure, § 605.] No. 41. Undertaking to Appear at Special Sessions. State op New York, ) County of ( A. B. having been duly charged before C. W. H., a justice of the peace of the town of , said county, with the offence of (designate the offence generally). We, the undersigned, undertake jointly and severally that he, said A. B., shall appear thereon from time to time, until judgment, at a court of special sessions in the said town of , competent to try the case, or that he will pay to the county off the sum of dollars. Dated at the town of , this day of 10 . . . (Signatures.) (Add affidavit and acknowledgment as in Form No. 32.) [Code of Criminal Procedure, § 738.] No. 42. Xrndertaking for Snpport of Bastard. State op New York, J County of ( ■■ Knoio all men ly these presents: That we, A. B., defendant, C. D. and E. F., sureties, all of the town of , said county, are jointly and severally and firmly hound to the people of the state of New York in the sum of dollars; to be well and truly paid if default shall be made in the conditions following: Whereas, The said A. B. has been adjudged to be the father of a bastard child, of which Lucy M. is about to be delivered (br was lately delivered), at the town ot , said county. The condition of this obligation is such if the said A. B. shall indemnify the said town of , and every other county, town or city, against any expense for the support of the bastard, or of its mother during licr confinement and recovery, and to pay the costs of arresting the said A. B., and of any order of filiation that may be made, then this obligation to be void; otherwise to remain in full force and virtue. Dated at the town of , this day of 10 . . . (Signatures.) (Add affidavit and acknowledgment as in Form No. 32.) [Code of Criminal Procedure, § 844.] 702 CODE OF CRIMINAL PEOCEDURE. No. 43. Id.; Under SnlidiTision 2 of Section 844. State of New Yobk, Comity of Know all men by these presents: Tha.t we, A. B., of the town of , said couuty, by occupation a defendant; C. D., of the town of , county of , by occupation a , and E. F., of the town of , county of , by occupation a , sureties, are jointly, severally and firmly bound to the people of the state of New York in the sum of dollars, to be well and truly paid if default shall be made in the conditions following: Whebbas, The said A. B. has been adjudged to be the father of a bastard child, of which Lucy M. is about to be delivered (or was lately delivered) at the town of , said county. The condition of this obligation is such that if the said A. B. shall appear at the next county court, to be held in and for the said county, and not depart the said county without its leave, but will appear and answer the charge at the next county court of this county then this obligation to be void, otherwise to remain in full force and virtue. Dated at the town of , this day of 19 . . . (Signatures.) (Add affidavit and acknowledgment as in Form No. 32.) No. 44. Undertaking on Adjonmment in Bastardy Case. State of New Yokk, 1 County of J**"' A. B., having been duly charged upon the oath of Lucy M., of being the father of a bastard child of which she is pregnant and about to be delivered, and the said A. B. having been this day duly arrested and brought before C. W. H. and J. S., two justices of the peace, in and for the county of , and in the town of and the said justices having convened according to law in this proceeding; and, whereas, the said A. B. requested an adjournment, and for sufficient reasons said justices have decided to adjourn all further proceedings herein until the day of , 19 . . , at the office of , in the town of in said county. We hereby undertake jointly and severally that the said A. B. shall appear herein and before the said justices from time to time and at the time and place aforesaid, and not depart therefrom without the leave of said justices, or that we will pay to the people of the state of New York the sum of dollars. Dated this day of l9. . . (Signatures.) (Add affidavit and acknowledgment as in Form No. 32.) [Code of Criminal Procedure, § 849.] No. 45. Undertaking of Parent, etc. State op New Yokk, ) County of ( Whereas, complaint having been heretofore duly made before 0. W. H., a justic* of the peace of the town of , in said county, that A. B., a child of the age of years, residing in the said town, was on the day of , 19.., found wandering abroad and in the streets and lanes of the incorporated village FOKMS. 703 «f , a truant, without any lawful occupation; said child having sufficient liodily health and mental capacity to attend the public school, and, whereas, the eaid justice did thereon duly cause a peace officer to bring such child before him for exam- ination, and cause C. D., the father and master of said child, to be summoned to attend 8uch examination. And on such examination the complaint was satisfactorily estab- lished and the said justice required the said C. D., father of said child, to enter into an engagement in writing with two sureties in the sum of dollars, to the (corporate authorities of the village) that he will restrain such child from so wander- ing about, will keep him within his own premises, or in some lawful occupation, and will cause him to be sent to some school, at least four months in each year, until he becomes fourteen years old. Now, therefore, we, C. D., E. F., and H. G., all of the town of , said county, hereby undertake that the said C. D. will restrain said child from wandering about the streets of the said village, a truant, without lawful occupation; will keep him within his own premises or in some lawful occupation, and will cause him to be sent to some school at least four months in each year until he becomes fourteen years old; or if he fails to perform either of these conditions, we will pay to (said author- ities) the sum of dollars. Dated this day of , 19 . . . (Signatures.) (Add affidavit and acknowledgment as in Form No. 32.) [Code of Criminal Procedure, § 888.] No. 46. Information for Misdemeanor. State op New Yoek, ) County of ^ A. B., being duly sworn, says that he resides in the town of , in said county ; that on the day of , 19 . . , at the said town of , one C. D. did unlawfully and knowingly violate laws of the state of New York, in relation to in that he did ( here state all the facts and circumstances in full of which the crime consisted). A. B. Subscribed and sworn to before me this .... day of , 19 . . . C. W. H., Justice of the Peace. No. 47. Information of an Affray. State of New Yobk, J County of ^ A. B., being duly sworn, says he resides in the town of , said county; that on the day of , 19. ., at the said town of .in said county, C. D. did with force and arms make an aflfray by fighting with E. F. in a public street (or public highway, or public place), to wit: at , by d the form of the statute in such case provided. A. B. Subscribed and sworn to before me, this day of , 19 . . . . C. VV. H., Justice of the Peace. No. 60. Information for Interfering with an Officer. State of New Yoek, ) County of \ " A. B., being duly sworn, says that he resides in the town of said county; that he is a constable (or other peace officer) of the town of said county; that on the day of , 19. ., at the town of , said county, C. D. did with force and arms, unlawfully, and designedly, forcibly interfere with deponent, he then and there being a constable (or other peace officer) of the towii of , said county, and having in legal custody one X. Y„ arrested upon a criminal charge, to wit, upon the charge of (here state the charge) committed by him, the said X. Y., by (here state particulars regarding the nature of the offence). A. B. Subscribed ai.d sworn to before me, 1 this .... day of , 19... i C. W. H., Justice of the Peace. FORMS. 709 No. 61. Information for Kobbery, in tlie First Degree. State op New York, ) County of t **■ ■' A. B., being duly sworn says that lie resides in the village of in said town and county ; tliat on tlie day of , 19 . . , C. D. committed tlie crime of robbery in the first degree by unlawfully and forcibly taking from the person of deponent, and against deponent's will, a gold watch, a gold chain, and a pocketbook containing fifty dollars in money and valuable papers, all of which was the property of deponent; that said crime was committed on street in said village; that said C. D. was at the time of such taking as aforesaid armed with a revolver with which he threatened to kill deponent if he made resistance to such taking or any out- cry; and that deponent was thereby intimidated and prevented by fear from resisting the taking of his said property from his person by the said C. D. A. B. Subscribed and sworn to before me, ) this day of , 19 . . . \ C. W. H., Justice of the Peace. ITo. 62. Information for Burglary and Iiarceny. State of New Yobk, 1 County of | A. B., being duly sworn, says he resides in the town of ., said county; that on the day of , 19 . . , at the town of , said county, C. D., with force and arms, did feloniously and burglariously break and enter into the dwelling house of deponent, a building situate in the said town, and in which were divers goods and valuable things then and there kept and of the property of de- ponent, and the said C. D. then and there being, and there feloniously and burglari- ously did break and enter said building, and did steal, take and carry away jewelry of the value of dollars, the property of the said deponent. A. B. Subscribed and sworn to before me, 1 this .... day of , 19... J C. w. n.. Justice of the Peace. No. 63. Information for Seduction. State of New Yobk, J County of \ A. B., being duly sworn, says she resides in the town of , said county; that on the day of , 19. ., in the town of in said county, C. D. did, under promise of marriage, seduce and have illicit intercourse with deponent, she the said deponent, then and there being an unmarried female of previous chaste character (here state the facts fully showing the promise of marriage, seduction, etc.). . A. B. Subsc:-ibed and sworn to before me, ^ this .... day of , 19... j C. W. H., Justice of the Peace. 710 CODE OF CKIMINAL PKOCEDUEE. No. 64, Information for Forgery. State of New York, ) County of l A. B., being duly sworn, says he resides in the town of said county; that on the day of , 19 . . , in the town of said county, C. D., committed the crime of forgery, in that with intent to injure and de- fraud did, feloniously and falsely make and forge a certain check (a copy of which is here set out or describe the check) . A. B. Subscribed and sworn to before me, } this .... day of 19 . . . ( C. W. H., Justice of the Peace. No. 65. Information for Assanlt -with a Sharp Weapon. State op New Yobk, ) County of ( A. B., being duly sworn, says he resides in the town of , said county; that on the day of , 19 . . , in the town of , said county, C. D. did with force and arms willfully and feloniously make an assault upon deponent with a certain pitchfork, the said pitchfork being then and there a sharp, dangerous weapon which the said C. D. then and there had in his hand and he did then and there beat, strike, cut, stab and wound, with intent then and there feloniously to do bodily harm to deponent without justifiable or excusable cause, A. B. Subscribed and sworn to before me, this .... day of , 19 . . . C. W. H., Justice of the Peace. No. 66. Information for Rape. State of New York, J County of ( A. B., being duly sworn, says she resides in the town of said county; that on the day of 19. ., in the said town of , said county, C. D. did commit an assault upon deponent, shen then and there being a woman of the age of years, and he did then and there forcibly and feloniously and against her will ravish and carnally know her (here describe the assault fully.). A. B. Subscribed and sworn to before me, J this day of 19 . . . f C. W. H., Justice of the Peac& rOEMS. Vll No. 67. Information for Assault with Intent to Kill. State op New Yoek, ) County of J**"" A. B., being duly sworn, says he resides in the town of said county; that on the day of 19 . . , at the town of , in the 6iaid county, C. D. did with force and arms, in and upon the said deponent then and there being, feloniously make an assault, and the said C. D., with a certain knife which be then and there had in his hand and being then and there a deadly weapon (here describe the assault fully). A. B. Subscribed and sworn to before me, ) this .... day of , 19 . . . f C. W. H., Justice of the Peace No. 68. Information Against Child Begging, etc State of New York, ^ County of j A. B., being duly sworn, says he resides in the town of , said county; that on the day of , 19 . . , in the town of , in said county, one C. D., a child of the age of years, was found begging for alms and asking for charity from house to house in the said town of , anU was found begging and asking for alms, as aforesaid, in a street, highway and public place of said town, to wit, (here describe all the facts and circumstances within knowledge of deponent). A. B. Subscribed and sworn to before me, 1 this day of 19 . . . J C. W. H., Justice of the Peace. No. 69. Information for Searcli Warrant. State op New York, J _ • County of j A. B., being duly sworn, says he resides in the town of , said county;' that the following personal property (here describe property fully) is in the possession of C. D. at ; that the said C. D. holds and retains said property with the intent to use it as a means of committing a crime, or said property is in the possession of E. F., to whom said C. D. delivered it for the purpose of concealing it, or preventing its being discovered; that all the facts upon which this affidavit is based are as follows: (Here state all the facts fully.) A. B. Subscribed and sworn to before me, J this day of , 19..." ( C. W. H., Justice of the Peace. [See Code of Criminal Procedure, § 792, subd. 3.] 712 CODE OF CKIMmAL PKOCEDUEE. No. 70. Information for Maiming. State of New Yobk, J County of \ ' A. B., being •duly sworn, says he resides in the town of , said county; that on the- :;;;;:;. day of , 10. ., in the town of .....-..■....., in said county, one C. D., did then and there feloniously, malieioualy, and intentionally, and from a premeditated design on his part, fracture the nose of deponent (or put out the eye, or, break the limb, as the caes may be) by (here state in full all the particulars and circumstances attending the crime). A. B. Subscribed and sworn to before me, 1 this day of , 19... I C. VV. H., Justice of the Peace. No. 71. Information for Receiving Stolen Goods. State cp New Ycbk, ) County of ( A, B., being duly sworn, aays he resides in the town of .., said county; that on the day of , 19 . . , at the town of in the said county, C. D., did knowingly, feloniously and willfuUy receive and have in his possession ( here name articles ) of the value of dollars of the goods, and chattels of deponent, then lately before feloniously and wickedly stolen from the said deponent, the said C. D. well knowing that the said goods and chattels to ha ire been feloniously and wickedly stolen; that the facts upon which this affidavit is baaed are aa follows: (Here state all the facts). A. B. Subscribed and sworn to before me, ) this day of 19 ... ^ C. W. H., Justice of the Peace. No., 72. Information for Iiarceny. State of New Yokk, ) ss ' County of C : Ai B., being duly. SKorn, says he reaides in the town of , said county; that 0. D. ia guilty of larceny, in that on or about the day of , 19. . , at the town of , in said county, C. D., being a servant or agent of deponent, with intent to deprive deponent of his property, did wickedly, feloniously and willfully embezzle and convert to his own use, without the assent of the said deponent, the. property of the said deponent, viz. (here describe property in full) : said property had come into possession of the said C. D. as such agent or servant by (here state all the facts and circumstances). A. B. Subscribed and sworn to before me, 1 this .... day of , 19... C C. W. H.. Justice of the Peace. FORMS. 713 No. 73. Information for XiilieL State of New York, ) County of J««--. A. B., being duly sworn, says lie resides in the town of , said county; that on the day of , 10 . . , at the town of , in said tount}', C. D. did falsely, scandalously and maliciously and feloniously make, write and compose certain scandalous, false and libelous writing of, concerning and against deponent, to the effect and purport following (here describe the writing in substance generally) : and that with intent and design to disgrace and scandalize the said de- ponent and bring him into contempt, infamy and disgrace, the said C. D. did after- wards openly deliver and publish to (here name persons to whom the said writing was shown or delivered) the said false, libelous and scandalous (here name the writing, book or document, as the case may be), in that he did (here give in full all the facts). A. B. Subscribed and sworn to before mo, this day of , 19 . . . C. W. H., Justice of the Peace. No. 74. Information Against Disorderly Person ITnder Section 899, Subdivision 1. State of New ycEK, ] County of j A. E , being duly sworn, says she resides in the town of said county; that she is the wife of C. D of the said town' of ; that she complains of her said husband of being a disorderly person, according to section eiglit hundred and ninety-nine of the Code of Criminal Procedure, for that he has actually abandoned his wife and children leaving them without adequate support, and has left tlieni in danger of becoming a burden upon the public, and he neglects to provide for them in accordance with his means. Deponent further says that for four days last past said C. D. has actually abandoned his family without leaving them adequate support, and they are in danger of becoming a cliafge upon the public, and that suc'i family is not possessed of any property or of the means of obtaining support and maintenance for themselves without the aid of such husband. A. B. Subscribed and sworn to before me, this day of 19 . . . C. W. H., Justice of the Peace. fSee Code of Criminal Procedure, § 899, subd. 1.] No. 75. Information Against Disorderly Person Tinder Section 899, Subdivision 2. State of New Yckk, f County of j ' ' A. B., being dulv sworn, says that she resides at No -..trcet, in the town of '. . ., in said county; that she complains of her husband C. D., of the said town of - , of being a disorderly person, according to section eight hundred and ninety-nine of the Code of Criminal Procedure, for that he threatens to 714 CODE OF CKIMINAL PEOCEDUEE. xun away and leave his wife and children to become a burden upon the public, and that Buch family is not possessed of property or of the means of obtaining support and maintenance for themselves without the aid of such husband. A. B. Subscribed and sworn to before me, ) this .... day of , 19. .. | C. W. H., Justice of the Peace. No. 76. Infonuation Against Disorderly Person. State op New Yobk, 7 < 88. ; County of I A. B., being duly sworn, says he resides in the town of , said county; that one C. D. is a person in said town of , who pretends to tell fortunes, and where lost and stolen goods may be found, and the location of hidden treasures, in that he possesses supernatural gifts and powers, and to the end and effect that he extorts money by (here describe in full all the facts and the manner). A. B. Subscribed and sworn to before me, 1 this day of , 19 . . . \ C. W. H., Justice of the Peace. [See Code of Criminal Procedure, § 899, subd. 3.] Ifo. 77. Information Against Disorderly FersoSa State of New Yobk, ) County of ^ A. B., being duly sworn, says he resides in the town of , said county; that one C. D. is a person who keeps a bawdy house in the said town of t in said county, and a house for the resort of drunkards, tipplers, gamblers, prostitutes, habitual criminals, and other disorderly persons, in that he (here describe all the facts and circumstances). A. B. Subscribed and sworn to before me, this day of , 19... C. W. H., Justice of the Peace. [See Code of Criminal Procedure, § 899, subd. 4] FOEMS. 715 No. 78. Information Against Disorderly Person. State op New Yoek, ) County of i A. B., being duly sworn, says he resides in the town of , said county; that C. D. is a person in the said town of , said county, who has no visible and lawful profession or calling by which to support and maintain himself, but who does so for the most part by gaming, in that he (here state all the facts and cir- cumstances). ' A. B. Subscribed and sworn to before me, 1 this .... day of 10 . . . ( C. W. H., Justice of the Peace. [See Code of Criminal Procedure, § 899, subd. 6.] Xo. 79. Information Against Disorderly Person. State op New York, ) County of J ^ A. B., being duly sworn, says he resides in the town of , said county; that one C. D., in the said town of , in said county, is a juggler, common showman and mountebank, who exhibits and performs for profit puppet shows (hero describe acts complained of). A. B. Subscribed and sworn to before me, 1 this .... day of 19 . . . J C. W. H., Justice of the Peace. [See Code of Criminal Procedure, § 899, subd. 6.] No. 80. Information Against Vagrant. State op New York, J County of C A. B., being duly sworn, says he resides in the town of , said county; that one C. D., who is now in said town is a vagrant in that he has no visible means of support, lives without employment (here state any other fact to rtow that he is vagrant). ^ ^ Subscribed and sworn to before me, this day of 19 . C. W. H., Justice of the Peace. je, ) . W. of tl [Code of Criminal Procedure, § 887.] 716 CODE OF CEIMIWAL PEOCEDUEE. No. 81. Information for Disorderly Cbild. State op New Yobk, ] County of j A. B., being duly sworn, says he resides in the town of , said county; that C. D. is a disorderly child, that he has deserted his home without any cause and is keeping company with prostitutes and drunkards against the lawful commands of his father, that he is of the age of years (here state other facts upon which the information is to be made). A. B. Subscribed and sworn to before me, 1 this .... day of , 19 . . . ( C. W. H., Justice of the Peace. No. 82. Information Against Gamliling Place. . ss.. State op New York, 1 County of ( A. B., being duly sworn, says he resides in the town of , said county; that on the day of , 19 . . , in the town of said county, and at the present time, C. D. did and does keep a room (here describe it par- ticularly, used and occupied for gambling, to wit, here describe kind of gambling) that said C. D. did and does now knowingly permit the said room to be used for gambling as aforesaid, and that he is the owner and in possession of said room and premises. A. B. Subscribed and sworn to before me, 1 this day. of , 19... f C. W. H., Justice of the Peace. No. 83. Information for Selling Mortgaged Chattels. State op New York, ) County of ( A. B., being duly sworn, says he resides in the town of , said county; that on the day of , 19. ., C. D. executed and delivered to de- ponent a chattel ttortgage upon certain personal property, to wit (here describe it), of the value of dollars. That afterwards and on the day of , 19. ., at the town of , in said county, while the said mort- gage was a lien on the said personal property, the said C. "D. did willfully, maliciously and unlawfully, and with intent to defraud deponent, the mortgagee of said property, sell the whole of said personal property so mortgaged as aforesaid, and disposed of the same without the knowledge or consent of deponent. A. B. Subscribed and sworn to before me, ) this day of , 19... J C. W. H., Justice of the Peace. FORMS. 717 No. 84. Information for Fnblio Intoxication. State op New York, ) County of J««-- A. B., being duly sworn, says he resides in the town of , said county ; that he is a constable of the said town of and that he did find C. D. on the day of , 19 . . , intoxicated in a public street, viz. ( here de- scribe place), contrary to law. A. B. Subscribed and sworn to before me, ) this .... day of , 10 . . . f C. W. H., Justice of the Peace. No. 85. Information for Malicious Miscbief. State of New Yoek, J County of J®*'' A. B., being duly sworn, says he resides in the town of , said county; that on the day of , 19 • • , one C. D. did willfully, maliciously and wantonly injure an apple tree situated on a private ground by (here state fully the cause of complaint). A. B. Subscribed and sworn to before me, 1 this day of , 19 . . . [ C. W. H., jjustice of the Peace. No. 86. Affidavit to Obtain Search Warrant. State op New Yors, ) County of J**''" A. B., being duly sworn, says he resides in the town of , said county ; that on the night of the day of , 19 . . , at the town of , said county, certain personal property (here describe it) was stolen and carried away from the residence of deponent, without his knowledge or consent and that there is probable cause for suspecting that C. D. of the same town is the party who stole and carried away said property and now has it in his possession at his residence in the said town (here state ful'.y all facts showing grounds for deponent's belief). A. B. Subscribed and sworn to before me, ) this day of , 19 . . . ( C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 793.] No. 87. Searcb Warrant. State op New York, f County of J*®'' In the Name of the People of the State of New York: To any peace officer of the county of ; Proof by. affidavit having been this day made before me, by (here name every person whose affidavit has been taken) that (stating the particular grounds of the applica- tion). You are, therefore, commanded in the daytime (or at any time of the day or 718 CODE OF CRIMINAL PEOCEDURE. . liight, as the case may be, according to section eight hundred and one) to make imme- diate search in the building (here describe it) for the following property (here describe it) and if you find the same or any part thereof, to bring it forthwith before me at my office in the town of , said county. Dated at the town of , said county, on the day of , 19... C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 797.] No. 88. Affidavit to Inventory on Searcli Warrant. I, A. B., the officer by whom this warrant was executed, do swear that the above inventory contains a true and detailed account of all the property taken by me on the warrant. A. B. Subscribed and sworn to before me, J this .... day of , 19 . . . C C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 805.] No. 89. Return to Search Warrant. I, the officer, to whom this warrant was delivered for execution, do hereby certify that I did on this day of , 19. ., take the property therein de- scribed from C. D. at (here describe building in which it was found) under and by virtue of this warrant, and an inventory has been taken of this property, which is hereto annexed. A. B., Constable. Dated this day of , 19. . . [Code of Criminal Procedure, § 805.] No. 90. Warrant for Disorderly Person. State op New Yobk, J County of ( In the Name of the People of the State of New York: To any peace officer of the county of : Whbieeas, information has this day been duly made by A. B., of the town of , in said county, before me, C. W. H., one of the justices of the peace of the town of that on the day of , 19.., at the town of , in said county, one C. D., was and is a disorderly person (here state all the facts oa which the complaint is based) against the peace of the people of the state of New York and the form of the statute in such case provided. We, therefore, command you forthwith to arrest and convey the body of the said rOKMS. 719 C. D. and bring him before me at my office in the said town of .for exam- ination, together with this warrant and a return of your doings indorsed thereon to answer the said complaint, and to be dealt with according to law. Given under my hand at the said town of , in said county, on the day of , 19 . . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 899.] No. 91. Betnm to Warrant. By virtue of the within warrant I have arrested the within named 0. D., and now bftve him before the magistrate who issued this warrant. Dated this day of , 19 . . . A. B., Constable. No. 92. Order That Arrest May Be Made on Sunday. I hereby order and direct that the arrest on the within warrant may be made on Sunday or at night. Dated this day of , 19 . . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 170.] No. 93. Permission to Execute Warrant in Another Connty. This warrant may be executed in the county of Dated this day of , 19. .. C. W. H., Justice of the Peace. iCode of Criminal Procedure. § 156.] No. 94. Commitment for Intoxication. State op New Yoek, ) County of C In the Name of the People of the State of New York: To any peace officer of the eounty of and to the keeper of the common jail of the eounty of : Wheeeas, C. D., having been duly arrested, examined, tried and convicted before me, a justice of the peace in the town of , in said county, of having been intoxicated in a public street in said town, contrary to law, And, whereas, I did thereupon adjudge and determine that the said C. D. should pay a fine of dollars and in default thereof that he should be committed to the common jail of said county for the term of day unless the fine shall be sooner paid. -j n n You are therefore hereby commanded forthwith to convey and deliver the said CO. into the custody of the said keeper of the common jail of said county. And you, the 720 CODE OF CRIMINAL PEOCEDUEE. said keeper of said common jail, are hereby commanded to receive the said C. D. into your custody in the said common jail of said county, and there safely keep and detain him until the expiration of the said days, unless the said fine be sooner paid or he be otherwise discharged according to law. Given under my hand, at the town of , this day of , 19... C. W. H., Justice of the Peace. No. 95. Warrant for Misdemeanor. State op New Yobk, ) County of ( In the Name of the People of the State of 'Sew York: To any peace officer in the county of ; An information having been made before me under oath that the crime of has been committed, and accusing C. D. thereof. You are therefore commanded forth- with to arrest the said C. D. and bring him before me at my office in the town of , said county, or in case of my absence or inability to act, before the nearest or most accessible magistrate in this county. Dated at the town of , this day of , 19 . . . C. W. H., Justice of the Peace. Note: (The same form may be used for a felony.) [Code of Criminal Procedure, § 164.] No. 96. Warrant for Refasing to Obey Subpoena. State of New Yoek, J County of j * ' ' In the Name of the People of the State of New York: To any peace officer in the county of : You are hereby commanded to attach C. D. and forthwith bring him before me, a justice of the peace in the town of , said county, and before a court of special sessions held- by me in said town at my office, then and there for him to show cause why he should not he punished for refusing to obey a subpoena duly served on liim as a witness in behalf of the people in an action against A. B., pending in the same court, and have you then and there this warrant. Given under my hand this day of , 19. . . C. W. H., Justice of the Peace. No, 97. Warrant Against Vagrant. State of New Yokk, 1 County of ( In the Name of the People of the State of New York: To any peace officer of the eounty of : An information having been laid before me this day on oath, that one C. D., of tlie town of , said county, has no visible means to maintain himself (hera state facts justifying issuing of warrant), against the peace of tiie people of the State of New York. FORMS. 721 You are therefore commanded forthwith to take the person of tha said C. D. and bring him before , in the town of , said county, with this warrant, to be dealt witli according to law. Given under my hand at , this day of , 19. . . C. W. H., Justice of the Peace. No. 98. Warrant to Commit a Vagrant. State of New Youk, 1 County of ; « • • In the Name of the People of the State of New Tork: To the sheriff of the comiti/ of and to the superintendent and keeper of the penitentiary of the county of : Wkeeeas, C. D., having been duly arrested, examined, tried and convicted before me, a justice of the peace in and for the said county, upon the information on oath of A. B., of being in the town of , said county, on the day of , 19. ., a vagrant for that (here state the grounds of conviction) . And the said justice having duly informed the said C. D. of all his rights and of the charge against him, and of the right to counsel in every stage of the proceedings, and from the evidence given on the said examination before said justice tlie said justice did find said C. D. to be guilty and a vagrant, and he was duly convicted thereof and tliat he was and is a vagrant within the intent and meaning of the statute; and it was adjudged and determined by me that the said C. D., being an improper person to be sent to the almshouse, that he should be committed and confined in the penitentiary of the county of , for the term of days, at hard labor. Now, therefore, you, the said sheriff, are commanded forthwith to convey and deliver the said C. D. into the custody of the said superintendent and principal keeper of the said penitentiary. And you, the said superintendent and principal keeper of the said penitentiary, are commanded to receive the said C. D. into your custody, into the said penitentiary, for tlie term of days, at hard labor, and him there safely keep until the expiration of said term. Given under my hand at the town of , this day of 19... C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 892.] No. 99. Warrant of Commitment of Disorderly Person. County of J State op New Yoke, j In the Name of the People of the State of New York: To any peace officer of tho county of , and to the sheriff of the county of : WiiEBEAS, C. D. was brought before me, a justice of the peace, in and for the county of , on the day of , 19. ., having been duly charged with having on the day of , 10. ., at the town of (here state nature of charge fully). Wjiebeas, the said justice duly and immediately informed the said C. D. of the charge against him and of all his rights, including the right to the aid of counsel, and the said C. D., having then and. there pleaded not guilty, was duly tried upon said 46 722 CODE OF CKIMINAL PKOCEDUKE. charge by the said justice who did thereupon hear the testimony under oath of (here state witnesses) and in defence thereof (here state witnesses) and after hearhig such testimony the said justice did find and determine tliat the said C. D. was guilty of the said charge, and he was thereupon duly convicted thereof, to wit, of being a disorderly person in that he did (here state all grounds of conviction) . And, whereas, prior to such conviction, the said C. D. was required to give security by a written undertaking with two sureties in the sum of dollars* for liis good behavior for the space of one year, and inasmuch as the said C. D. refused to give the undertaking required as aforesaid the said C. D. was duly convicted as being a disorderly person as aforesaid. You are therefore commanded forthwith to carry and deliver the said C. D. into the custody of the said sheriiT; and you, the said sheriff, are herebj' commanded to receive the said C. I>. into your custody in the common jail of said county, and there him safely keep in said county jail for the term of months or until he give the said security required as aforesaid. Given under my hand at the town of , this day of , 19... C. W. H., Justice of the Peace. [Code of Criminal Procedure, §§ 901, 903.] No. 100. IVarrant of Commitment for Failure to Give Security to Support Wife and Children. (The same as in preceding form down to * and add:), that he would pay to the overseer of the poor of the town of ^ weekly for the space of one year the sum of dollars for the support of his wife and children, and inasmuch as the said C. D. did not give the required undertaking, he was duly convicted by the said justice of being a disorderly person as aforesaid, and the said justice having duly made and liled in the office of the clerk of the county of , the record of such conviction of the said C. D., you are therefore commanded forthwith to carry and deliver the said C. D. into the custody of the said sheriff; and you, the said sheriff, are hereby commanded to receive the said C. D. into your custody in the common jail of said county, and there him safely keep in said county jail for the term of months, or until he give the security required as aforesaid. Given under my hand at the town of , this day of 19... C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 903.] No. 101. Commitment on Warrant for Felony. Tlie within named A. B., having been brought before me under this warrant, i» committed for examination to the sheriff of the county of (This is to be indorsed upon warrant of arrest.) Dated this day of , 19. . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 193.] FORMS. 723 No. 102. Commitiuent. State of New Yobk, ) County of ( In the Name of the People of the Btate of New York: To the sheriff of the count 1/ of : An order having been this day made by me, that A. B. be held to answer to the supreme court (or county court where there is a grand jury) upon a charge of (here briefly state the nature of the crime). You are commanded to receive him into your custody, and detain him until he be legally discharged. Dated this day of , 19. .. C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 214.] No. 103. Statement and Questions to Be Fnt by Justice to the Defendant. The defendant, when brought before the justice, was immediately informed by the said justice as follows: You are charged with the crime of , and you have the right to the aid of counsel in every stage of the proceedings. Do you require counsel? If you do, you may have a reasonable time to obtain one (and also take the answer of the defendant and insert it here). [Code of Criminal Procedure, §§ 188, 189.] No. 104. Order Granting Bail. I do hereby allow and admit to bail the above-named defendant in the above action, and I do hereby fix the amount of bail in the sum of dollars with two sureties. Dated this day of , 19. .. C. W. H., Justice of the Peace. [Code of Civil Procedure, § 575.] No. 105. Order for Discliarge on Giving Bail. To the sheriff of the county of ; A. B , who ia detained by you on a commitment to answer a charge for the crime of (designate it), having given sufficient bail to answer the same, you are commandorl forthwith to discharge him from your custody. Dated this day of , 19. . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 576.] 724 CODE OF CKIMIITAL PEOCEDUEE. No. 106. Subpoena. In the Name of the People of the State of New York: To -. You are hereby coniniaiiilud to appear before C. W. H., a justice of the peace of the town of , at his office in the said town, on the day of , 19.., at nine o'clodv in the forenoon, as a witness in a criminal action prosecuted by the People of the State of New York against C. D., defendant on the part of the people (or defendant, as case may be). Dated this day of , 19. . . C. W. H., Justice of the Peace. [Code of Criminal ProeeduiB, § 612.] No. 107. Subpoena Dnces Tecum. In the Name of the People of the State of New York: To : You are hereby commanded to appear before C. W. H., a justice of the peace of the town of , county of , at his office in the said town, on the day of , 19 . . , at o'clock in the noon, as a witness in a criminal action prosecuted by the people of the state of New York, against C. D., defendant, on the part of the people (or defendant, as the case may be), and you arc also hereby required to bring with you the following (here insert description of paper or book required) . Given under my hand this day of , 19 C. W. H., Justice of the Peace. [Code of Criminal Procedure, §§ 612, 613.] No. 108. Return of Service of Subpoena. County of , ss.: I do hereby certify and return that I did on the day of 10.., in the town of , said county, serve the within subpoena on M. N., by delivering it to and leaving a copy thereof with him and at the same time sliowing him the original. Dated this day of , 19 . . . B. 0., Constable. [Code of Criminal Procedure, § 615.] No. 109. Satisfaction for Misdemeanor. State op New Youk, J County of ( I, A. B., of the town of , said county, do hereby acknowledge that I liave received the sum of dollars from C. D., the above-named defeiidiuit, in full satisfaction for the injury to me, complained of in my information heretofore filed (here briefly describe offence complained of), and I desire that no further proceedings be had against said C. D. Dated this day of , 19. . . A. B. FOEMS. 725 State of New Yobk, 1 : County of J**"' On tills day of , 19.., before me, tlie subscriber, personally appeared A. B., to nie personally known to be the same person mentioned in and wUo executed the foregoing satisfaction, and he duly acknowledged the execution thereof. C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 664.] No. 110. Order Compromising Misdemeanor. Upon reading and filing the satisfaction of A. B., duly acknowledged before me on the day of , 19. ., (here state substance of it) I do hereby order, that on payment of the sum of dollars, that a!l proceedings be stayed upon the prosecution of the said complaint, and the said defendant be discharged. Dated this day 6f , 19. . . C. W. H., Justice of the Peace. , [Code of Criminal Procedure, § 664.] No. 111. Order to Discharge Defendant from Cnstody. State op New York, ) ; County of ( ' In the Name of the People of the State of New York: To the sheriff of the county of Whekeas, C. D., the defendant in the above entitled action, wlio was duly committed to your charge on the day of 19 . . , and who now remains under your care, has duly executed an acknowledgment of satisfaction for tlie said crime of Now, therefore, you are hereby commanded forthwith to discharge the said C. D. from your custody in said jail, unless detained upon some other process. Dated this day of , 19. . . C. W. H., Justice of tlie Peace. [Code of Criminal Procedure, § 663.] No. 112. Summons to Corporation. In the Name of the People of the State of New York: To (here name the corpora- tion) : You are hereby summoned to appear before me, at my ofiBce in the town of , county of , on the day of 19. ., at nine o'clock in the forenoon, to answer a charge against you upon the information of A. B., for (here set out the substance of the information ) . Dated at , this day of , 19- • • C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 676.] 726 CODE OF CRIMINAL PEOCEDURE. No. 113. Notice to District Attorney. To M. N., Esq., District Attorney of the county of ^ SiE : Please take notice, that the undersigned will, on the day of , 19 . . , apply to Hon. J. C, county judge of the county of , at his office, in the town of , said county, for a certificate, that a charge of assault in the third degree, against me pending, in a court of special sessions, in the town of said county, held by and before C. W. H., Esq., a justice of the peace of the said town, be prosecuted by indictment, and that I be admitted to bail in a sum then and there to be iixed by the said county judge. Dated this day of , 19. . . C. D., Defendant, [Code of Criminal Procedure, § 57.] No. 1 14. A£Eldavit for BemoTaL State of New Yoek, 1 County of ( C. D., being duly sworn, says, that he is the defendant in this action; that on the day of , 19 . . , he was arrested in the town of , county of , upon a warrant issued by C. W. H., a justice of the peace of said town, and was charged in and by said warrant and the information on which it was issued of the crime of assault in the third degree. That deponent was arraigned before said justice on the same day and obtained an adjournment until the day of , 19. ., for the purpose of obtaining a certificate under section 57 of the Code of Criminal Procedure. Deponent further says {here state the reason upon which the certificate is asked ) . That no previous application has been made for such certificate. C. D. Subscribed and. sworn to before me, J this day of , 19... ^ A. M. O., Justice of the Peace. [Code of Criminal Procedure, § 57.] No. 115. Certificate of County Jndge. COURT OF SPECIAL SESSIONS. The People of the State of New York vs. C. D. Upon reading and filing the affidavit of C. D., verified the day of 19.., notice of this motion with due proof of service thereof on M. N., Esq., district attorney, and upon hearing J. H. in support of said motion, and M. N., district attorney, in oppopition thereto. I do hereby certify that it is reasonable and just that the charge against the defend- ant stated in the information and warrant herein be prosecuted by indictment, and FOKMS. 727 I do hereby order that said defendant be admitted to bail in the sum of dollars with two sufficient sureties to appear before the next grand jury in the county of I do further order that upon the defendant giving bail as herein stated and fixed and filing this certificate with the magistrate who issued the said warrant, that all proceedings before the said magistrate be and the same are hereby stayed. Dated this day of , 19. . . J. C, County Judge of county. [Code of Criminal Procedure, § 57.] No. 116. Venire. State of New Yoke, 1 County of ( In the Name of the People of the State of New York: To any constable of the county of : You are hereby ordered and commanded to summon the persons following (Iiere state the names of the twelve jurors drawn) as jurors in a criminal action between the people of the state of New York and C. D., defendant, to be and appear before the court of special sessions to be lield in and for the town of , by and before the undersigned justice of the peace, at his office in the town of , said county, on the day of 19 . . , at nine o'clocli in the forenoon. Have you then and there this order with a certified list annexed thereto of the persons upon whom you have served the same, and stating the reason if you shall be unable to serve any ona or more of said persons. Dated at this day of , 19. . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 703.] No. 117. Return of Venire. County of , ss.: I do hereby certify tliat I served the annexed venire and order upon the following named persons (here insert their names), by reading or stating the substance tliereof and exiiibiting the same to each of them. Dated this day of , 19 . . . E. F., Constable. No. 118. Order That Frosecntor Pay the Costs. COURT OF SPECIAL SESSIONS, COUNTY OF , TOWN OF The People of the State of New York vs. C. D. I do hereby certify that I find that the prosecution herein was both malicious and without probable cause, and having so found I do hereby order the prosecutor, A. B., 728 CODE OF CKIMmAL PEOCEDUEE. to jiay the costs of the prosecution, namely, tlie sum of dollars, or to give Balisfactory security by written undertaking with two sureties to pay the same to tlie county witliin thirty days from tlie date lieroof. Dated at the town of , this day of 19.. . C. W. H., Justice of tlie I'cace. ■ [Code of Criminal Procedure, § 719.J No. 119. Judgment Against Prosecutor for Costs. COURT OF SPECIAL SESSIONS, COUNTY OF , TOWN OF The People of the State of Ne\y York vs. . C. D. WiiEUEAs, I did on the day of , 19.., duly certify upon my minutes of this court, held hy me, that the prosecution herein was malicious and wllli- out probable cause, and having ordered A. B., the prosecutor, to pay the costs of such proceedings, viz., the sum of dollars, or to give satisfactory security, under section 719 of the Code of Criminal Procedure, and the said A. B., having faih'd to pay said costs or to give the required security. I do render judgment herein this day against the said A. B. and in favor of tlio people of the State of New York, for the sum of dollars, being the costs of said proceeding. Dated at the town of , this day of 19... C. W. H , Justice of the Peace of the town of , [Code of Criminal Procedure, § 720.] No. 120. Certificate of Conviction. COURT OF SPECIAL SESSIONS, COUNTY OF ., TOWN OF The People of the Slate of New York ' vs. C. D. The above named C. D., having been brought before me, the imdersigned, a justice of, the peace of the town of , said county, charged with (here state olTencc) and having thereupon pleaded not guilty and demanded a jury, and having boon tlicre-. upon duly tried, and tipon such trial duly convicted. It is adjudged that he bo imprisoned in the common jail of the county of , days. Dated at the town of , this day of , 19. . . C. W. n , Justice of the Peace of the town of [Code of Criminal Procedure, § 721.] FORMS. V29 No. 121. Certified Copy of Certificate. COURT OP SPECIAL SESSIONS, COUNTY OF ............ TOWN OP Tlie People of tlie State of New York vs. C. D. The above na,mod C. D., having been brought before me, the undersigned, a justice of the peace of the town of , said county, charged Avith (here state the oiTence) and having thereupon pleaded not guilty and demanded a jury, and having been thereupon duly tried and upon such trial duly convicted. It is adjudged that he be imprisoned in the common jail in the county of , days. Duted at the town of , this day of , 19 . . . C. Vv^. H, Justice of the Peace of the town of County op , ss.: I certify that I have compared the foregoing with the original certificate made and signed by me as a court of special sessions, and that the same is a correct copy thereof and transcript therefrom, and of the whole thereof. Witness my hand this day of , 19 . . . C. W. H, Justice of the Peace of the town of [Code of Criminal Procedure, § 723.] No. 122. Affidavit on Appeal. COURT OF SPECIAL SESSIONS, COUNTY OF , TOWN OF The People of the State of New York vs. C. D. County of as.: C. D., being duly sworn, says that he resides in the town of , said coxmty, and is the defendant in the above entitled action ; that on the day of 19. ., in the town of , said county, after a trial by and before a court of special sessions he'.d in the town of , by C. W. H., justice of the peace, he was convicted of the charge of assault in the third degree and sentenced to be confined in the county jail of said county for the term of six months; that deponent desires to appeal to the county court of said county from such judgment of conviction and sentence, and alleges that the following errors were committed on the trial of said action (here set out all the errors wliieh are relied upon for a reversal of the judg- ment; each alleged error should bo paragi'aphed and numbered). Subscribed and sworn to before mo, ^ this .... day of , 19... | C. w. n., Justice of the Peace of the town of [Code of Criminal Procedure, § 751.] 730 CODE OF CKIMINAL PEOCEDUEE. No. 123. Undertaking on Appeal. COURT OF SPECIAL SESSIONS. The People of the State of New York vs. C. D. Wheeeas, C. D. was on the day of 19.., by and before the court of special sessions held in the town of , county of by and before 0. W. H., a justice of the peace of said town, convicted of the crime of assault in the third degree, and on reading and filing the affidavit of said C. D., verified the day of , 19 . . , in which it is stated certain alleged errors were committed by said court of special sessions, and the county judge of the county of having allowed an appeal herein from said judgment of conviction to the county court of said county; Now, therefore, we, C. D., principal, and W. X. and E. B., sureties, do liereby jointly and severally undertake that the said C. D. will abide the judgment of the county court upon the said appeal, or that we will pay the people of the state of New York the sum of dollars. Dated this day of , 19. . . (Signatures.) (Add acknowledgment and affidavit as in Form No. 32.) I hereby approve the foregoing undertaking both as to its form and the sufficiency of the sureties. Dated this day of , 19. . . J. C, County Judge. [Code of Criminal Procedure, § 753.] No. 126. Application by Overseer of the Poor for an Examination as to Charge of Bastardy. State of New YonK, ] County of ( To C. W. H., a Justice of the Peace in and for the county of : Lucy M., being pregnant with child which is likely to be born a bastard, and to become chargeable to the town of , in said county, the undersigned, an overseer of the poor of the town of N. Y., where the said Lucy M. now is, lioroby makes an application to you, pursuant to section 840 of the Code of Criminal Procedure, to iiKjuire into the facts of the case. Dated at , this day of , 19. . . [Signed] X. Y. [Code of Criminal Procedure, § 840.] FORMS. 731 No. 127. Examination of the Mother of a Bastard Before Its Birth. State of New Youk, 1 County of J®*" Tlie voluntary examination of Lucy M. of the town of , in saiil county of , taken in writing un oath before me, C. W. H., a justice of tlie peace of said county, at , on tlie day of , 19 . . . Tlie said Lucy M., being duly sworn, deposes and says, tliat she is now with child, and has been so for about months last past; that she is now, and for one year last past 'has been, an unmarried woman ; that said child is likely to be born a bastard, and to become chargeable to and a burden upon the said county [or town] . If ; and that C. D. of , in said town of , in said county, is the father of such child. [Signed] Lucy M. Subscribed and sworn to before mc, ] this day of , 19... l C. W. H., Justice of the Peace of the town of [Code of Criminal Procedure, § 841.] No. 128. VTarrant for the Arrest of a Fntative Father. State op New York, J County of J*®"' In the Name of the People of the State of New York: To any peace officer of the county of : Whekeas, upon application of X. Y., an overseer of the poor of the town of , in said county, duly made to me, C. W. H., a justice of the peace of the town of ill said county, and by examining Lucy M. of said town of , I have ascertained that the said Lucy M. is now pregnant of a child likely to be horn a bastard and to be a charge against the said town, and that C. D. of the town of , in said county, is the reputed father of said child. Now, therefore, you are hereby commanded forthwith to arrest the said C. I), and bring him before me at my office in the town of , in said county, for the purpose of having an adjudication as to the affiliation of the bastard. Dated at the town of , this day of , 19. . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 841.] No. 129. Subpoena in Bastardy Case. State of New Yohk, ) County of p®' In the Name of the People of the Btate of New York: To A. B. and L. M.: You are hereby commanded that you and each of you personally appear before ms at my office in the town of in said county, on the day of , 19.., at nine o'clock in the forenoon of tliat day, to give evidence in respect to the father of the child likely to be born a bastard of which Lucy M. is now pregnant. Dated at the town of , this day of , 19. . . C. W. H., Justice of the Peace. 7S2 CODE OF CKIMINAL PKOCEDUEE. No. 130. Order of FiUatloa. The People of the State of New York vs. C. D., Defendant. State of New Yoek, ) County of ( Whebeas, we, the undersigned, justices of the peace of tlie town of , in Baid county, have, in pursuance of the statute, upon the application of X. Y., overseer of the poor of the town of , N. Y., duly associated for the purpose of inquiring into the cliarge and determining concerning a certain hastard child of wliicli Lucy M. of the town of , N. Y., is pregnant, and of which child C. D., said defendant, is alleged to be the father; And Whereas, we have duly examined the said Lucy M. on oath in the presence of the said defendant, in respect to said charge, and have also heard all testimony to us offered in relation thereto, as well on the part and behalf of the said overseer of the poor as of the said C. D., defendant, whereby it appears that the said Lucy M. is pregnant of a child likely to be born a bastard, which is chargeable to the town of , N. Y., and that the said defendant, C. D., is the father of said child. We, therefore, upon examination of the matter and inquiring into said charge, and upon hearing the testimony as aforesaid, do adjudge, determine and certify that he the said defendant C. D. is the father of the said bastard child, and thereupon we order, that said C. D., defendant, pay to the said overseer of the poor of the town of , N. Y., for the support of said bastard, the weekly sum of dollars. And it appearing to us, and we finding the said Lucy M. to be indigent, we determine and order that said defendant C. D. pay to said overseer for the support of the said Lucy M. during her confinement and recovery therefrom the sum of dollars, and in case the said bastard child shall die, that said defendant pay the necessary funeral expenses. And we do hereby certify the reasonable cost of arresting the said defendant, and the ordei" of filiation, at the sum of dollars and cents. Given under our hands at the town of , N. Y., this day of ,19... C. W. H. and J. H., Justices of the Peace. [Code of Criminal Procedure, § 850.] No. 131. Warrant of Commitment of Father of Bastard. State op New Yonu, "j County of ( The People of the State of "Sew York: To any peace officer of the county of , and to the keeper of the common jail of the county of , O r eet ing : WiiEKKAS, by ml order of filiation duly made the day of , 10. .. by 0. W. H. and J. H., two of the justices of the peace of the town of in said county, C. D. is adjudged to be the father of a bastard child of which Lucy M of the town of , N. Y., is pregnant, which said child is chargeable to the town FOEMS. 733 cf , N. Y., wliieli said order of filiation was duly made after due examination upon application by X. Y., overseer of the poor of the town of , N. Y. And Whereas, by the said order the said C. D. was furtlier directed to pay to the overseer of the poor of the town of aforesaid the sum of dollars weekly for the support of said bastard child; and also the sum of dollars directed to be paid by the said C. D. for the support of the said Lucy M. during her confinement and recovery, she being found to be indigent; and in case said bastard child shall die, that the said C. D. pay the necessary funeral exiiousos, and in and by said order the reasonable cost of arresting the defendant C. D., and of the order of filiation Tyere certified at the sum of dollars and cents ; And WuEEEAS, the said C. D. was present at the making of such order of filiation, which, together with all the other proceedings, was by said justices reduced to writing and subscribed by them, and the said C. D. was required by them to pay the said costs, and enter into an undertaking, with sufiicient sureties, to be approved by them, according to section 851 of the Code of Criminal Procedure of tlie State of New York, in the sum of dollars; And Whereas, the said C. D. has neglected to pay such costs and to enter into such undertaking as aforesaid. These are tliereforo to command you, the said peace odicer, to take the said C. D. and convey and deliver him to the keeper of the copimon jail of tlie county of , And you the said keeper are hereby commanded tp receive the said C. D. into your custody in said jail and there safely keep him until lie be discharged by the county court of the county of or pay said costs and deliver an undertaking as prescribed by section 851 of the Code of Criminal Procedure. Given under our hands at the town of the day of , 19 . . . C. W. H. and J. H. Justices of the Peace. [Code of Criminal Procedure, §§ 852, 853.] No. 132. IVaTrant for Commitment of Mother Refaalng to Disclose Father. State of New York, ) « . ■ ' s«. ; County of V In the Name of the People of tlie State of Neio York: To any peace officer of the county of , and to the keeper of the common jail of said county: Whereas, complaint has been made before us that one Lucy M. of the town" of , said county, was delivered of a bastard child on the day of , 19.., which is likely to become a charge upon said town. And when she was brought before us, she refused and still refuses to disclose the name of the father of said bastard child, although now sufficiently recovered from her confinement. You are, therefore, commanded forthwith to convey and deliver the said Lucy M. into the custody of the said keeper; and you, the said keeper, are hereby commanded to receive the said Lucy M. into your custody in said jail, and there safely keep her until she shall testify and disclose the name of the father of said child, or until otherwise discharged according to law. Given under our hands at the town of this day of , 19. . C. W. H. and J. H. Justices of the Peace. [Code of Criminal Procedure, § 856 ] 734 CODE OF CKIMmAL PEOCEDUKE. No. 133. Indorsement to Be Made on Warrant When Executed in Anotlie? County. County of , ss.: Due and sufiSciunt proof under oath liaving been made before me, C. W. H., a justice of the peace in the county of , that the name of J. H., purporting to be the signature of J. U., subscribed to the within warrant, is in tlie handwriting of said J. H., the within named justice of the peace, and I do hereby authorize the arrest of the within named C. D. in said county of Dated this day of , 19. . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 843.] No. 134. Information Against Vagrant CMld. State op New York, ) County of ........ ( ' ' A. B., being duly sworn, saya that he resides at No , street, in the city of ., and that C. D. is a child between the ages of five and fourteen years, to wit: of the age of nine years, having suflBcient bodily health and mental capacity to attend the public schools, and that on the day of , 19. ., in the city of , the said C. D. was found, during the school hours, wandering abroad in the streets of the city of , a truant, without lawful occupation, in that [describe acts and circumstances]. A. B. Subscribed and sworn to before me, ) this day of , 19 . . . C C. W. H., Justice of the Peace [or Police Justice], [Code of Criminal Procedure, § 887, subd. 8.] . No. 135. Summons to Parent or Vagrant Cliild. State of New York, ) • r County of . . In Name of the People of the State of New York: To E. P., parent of O. D.: Whereas, complaint and information upon oath has been duly made before me, C. W. H., a justice of the peace [or police justice] of the city of , in said county, by A. B. of said city, that on the day of , 19. ., said C. D.; a child of the age of nine years, and who is of sufficient bodily health and mental capacity to attend the public schools, was found, during school hours, wandering about the streets of said city, a truant, without lawful occupation, and Whereas, I have caused the said C. D. to be arrested and is now held in custody awaiting examination upon said charge, which said examination will be held before me, the said justice of the peace [or police justice], at my office in said city, on the day of 19 . . , at o'clock in the forenoon [or afternoon]. Yoii are hereby summoned and required to be present at said examination at said time and place. Dated this day of , 19. . . C. W, H., Justice of the Peace [or Police Justice], [Code of Criminal Procedure, § 888.] INDEX TO CIVIL AND CRIMINAL JUSTICES (See also Index for Penal Lav.) [References are to pages.] A Abatement and Continuance faoe death of party 452 verdict after 410 admission of part of plaintiff's claim, continuance as to remainder 392 nuisance, abatement of 682 Abortion evidence on trial for 607 exclusion of public in cases of 5 Absconding Debtors arrest 370 attachment in action against 373 place of trial of action against 360 Absentees attachment in action against 373 designation for service of summons, duration 369 revocation 369 designation of persons on whom to serve summons 369 filing designation for service 369 Abstract accompanying search, of, as evidence 279 Acceptance offer of judgment, of 296 Acconamodations jury, for 611 Accomplice evidence of 607 Account Books evidence of 268 Accounting no jurisdiction of 1^ Accounts actions on, bill of particulars 3"! costs where action discontinued 412 discontinuance of action where total accounts of both parties exceed four hundred dollars ^^^ 735 736 INDEX TO CIVIL AND CEIMINAL JUSTICES. Accounts — Continued page exhibiting account or demand or statement of nature thereof, when may be required 391 failure to deliver account or bill of particulars, eCect. . .'. 391 items of account or demand, necessity for pleading 391 pleading, manner of 389 verification of account or bill of particulars 391 jurisdiction in matters of 16, 19 limitation of action on 464 production of book of account on trial, how compelled 400 Ackno wle dgment bonds and undertakings 441 power of attorney, fee to justice 424 revival of action barred by statute of limitations 465 Acquittal {see also Dischabge) instruction for, by court 609 special sessions, in CC2, 634 Actions {see also Pleadings) commencement of, how commenced generally 366 voluntary appearance of parties and filing complaint as 366 actions authorized by justice court act, against constable by third person in replevin where property delivered to plaintiff 381 bonds and undertakings, by party on bond to people or public officer. . . 442 constable for not returning execution, action against 421 costs, action to recover where plaintiff fails to commence new action after answer of title 393 wrongfully collected, action against justice 424 joint debtor, where not personally served in previous suit 430 money collected ty constable under execution action against sureties 421 strays, actions by owner to recover for wilfully setting animals at large. 436 Adjoununents allowance of 304 amendment of pleading, allowance of adjournment after 390 application of plaintiff, proof that may be required 395 arrest of defendant, right of justice to adjourn on own motion 395 attendance of witness, warrant of attachment to compel 306 bastardy proceedings 656 form of undertaking for ' 702 commission to tal:e testimony, on application by plaintiff 400 conditions that justice may impose 396 custody of arrested defendant during adjournment 396 defendant, application on joinder of issue 395 applying for on joinder of issue, requirements 395 demurrer, adjournment after decision on 390 discharge from arrest on adjournment by consent of parties or application of plaintiff 396 entry in docket-book 453 examination of non-resident plaintiff's witness as condition to granting 396 lee of justice 424 form of affidavit by defendant for 498 joindbr of issue before 386 on voluntary appearance, right of justice to adjourn 395 INDEX TO CIVIL AND CKIMINAL JUSTICES. 737 Adjournments — Continued page jury trial, where demanded 405 length of adjournment 395 on application by defendant 395 on application ly plaintiff for commission to take testimony 400 without consent of both parties 396 ninety days, adjournment for more 397 plaintiff, on application on return of summons or joinder of issue 395 preliminary examination, of 542, 591 form of undertaking 698 release of arrested defendant during adjournment, undertaking 396 return of summons, right of justice to adjourn on 395 strays, hearing on claim to surplus 434 subsequent adjournment 306, 396 summary proceedings, of 340, 475 trial by justice of own motion, when 395 undertaking on adjournment on application by defendant 395 on subsequent adjournment 396 where defendant arrested, necessity for 396 witness committed for refusal to testify, etc 409 Administrators action by or against 16, 23 counterclaim in action by 299 jurisdiction of action against 16, 20 limitation of action against 463 form of complaint by or against 486 Admissions allegation in answer, by failure to deny 390 allegations of complaint by failure to deny 390 counterclaim, plaintiff of validity of 412 evidence of 265 part of plaintiff's claims, judgment on part admitted 392 severance of action 392 Advertisement foreclosure of lien by , 330 Aeroplane judicial notice of 254 Affection consideration, as 37 Affidavit admissibility of ex parte affidavit in evidence 409 appeals in criminal cases, forms for 729 attachment, for 288 forms 500, 518 attachment of defaulting witness, form of 500 commission, for, form of 512 criminal matters, in ^29 debtor imprisoned under execution, affidavit to procure discharge 420 defects that do not impair : ^^e definition ^56 fcx parte aff.davit, admissibility in evidence 409 47 738 INDEX TO CIVIL AND CKIMINAL JUSTICES. Affidavit — Continued PAG« fee of justice for administering oath 424 drawing 424 taking 425 filing witli justice, duty of justice 455 officers or committees, by 275 order of arrest, for 287 form of 517 proof of authority of attorney to appear 364 publication, of 276 replevin, for '. 289 search warrant 650 form 717 sureties on bonds or undertakings as to residence and property 441 taken without the state 275 verification, form of 390 of pleadings by 390 who authorized to take 275 Affray form of informa.tion for 703 Age child, of 270 operator of motor vehicles, of 199 Agents act of, as conversion 235 arrest for misappropriating funds or property 370 evidence of admissions of 266 limitation of action for misconduct of 459 party to contract 34 replevin, right to make affidavit for replevin or return and contents 379 strays, right to act for principal in reference to 440 verification of account 391 pleadings by 390 Agreements contracts generally 30-57 Agriculture judicial notice of 253 Albany special sessions in 570, 571 Alien limitation of action as to ^ 460 Alteration chattel mortgage 150 Amendment adjournment, when to be granted where amendment allowed 390 amendment of pleadings to promote substantial justice 390 appeal, to perfect 445 bonds and undertakings, defects in 441 costs as condition to allowing amendment to pleadings 360 immaterial errors and mistakes to correct 451 indictments, of 598 pleadings, of 297, 304 rPTDEX TO CIVIL AND CKIMINAL JUSTICES. 739 Amendment — Continued page pleadings to conform to proof 391 where demurrer thereto sustained 387 power of Justice to amend process and pleadings ' 451 return of justice on appeal, notice of motion for order where county judge disqualified 448 summons, of 286 unknown defendant, amending proceedings to designate true or full name.. 368 variance, to conform pleadings and other proceedings to proof 451 where immaterial 392 Animals judicial notice of 254 ordering death of dog 27 proceedings against strays 27, 342, 431 trespass by 247 Another Action Pending^ demurrer by defendant 386 to counterclaim 389 Answer account or instrument for payment of money only, how pleaded 389 contents of 297 contents where complaint not verified 387 form and requisites verification, when required 389 judgment on counterclaim, demand for 392 demurrer in general 297, 387 demurrer to part of causes stated and answer to remainder 387 groimds for demurrer not appearing on face of complaint, raising by answer. 389 new matter constituting defense or counterclaim, pleading in answer to unverified complaint 387 when deemed controverted without denial 390 partial defense in answer for wrong .■ 391 mitigating circumstances in action for wrong 392 question raised on demurrer 392 right to plead and manner of pleading 392 pleading mitigating circumstances in action for vfxong, necessity 391 of defendant 386 severaace of action and judgment for part admitted by , 392 specific pleas, limitation of actions 360 unverified complaint, contents to 387 waiver of objections to complaint when not taken by answer or demurrer 389 specific actions and proceedings, by and against corporations, corporate exist- ence, necessity for proof where issue not raised by verified answer . . 409 misnomer, waiver where not pleaded 392 foreclosure of mechanic's lien 324 joint debtors, contents in action against joint debtor not previously served ^^^ replevin, demand for return of chattel and damages 382 strays on highways, contents and verification 433 summary proceedings 3'*"' ^' * form of answer title, of (see also Answee of Title) 301 740 INDEX TO CIVIL AND CEIMINAL JUSTICES. Answer of Title page verified complaint form and contents of answer ,. 387 allegation of facts showing title will come in question 393 costs, action to recover where plaintiff fails to commence new action 393 allowance to successful party in new action 393 where action discontinued ' 393 countersigning by justice 393 delivery of answer to plaintiff 393 to justice 393 discontinuance of action on delivery of undertaking to justice 393 where title brought in question as to one of several causes 394 form of answer 469 liability of sureties on defendant's undertaking 393 manner of pleading title 393 new action pleadings. 394 where to be brought 393 proceedings after answer of title interposed 393 right to interpose answer to title 393 severance of action where title brought in question as to one or more causes. 394 summons and complaint in new action, depositing with justice 393 title brought in question as to one of several causes of action, proceedings thereon 394 undertakings by defendant, form and contents 393 effect of failure of plaintiff to file 393 jurisdiction of justice where plaintiff fails to give 393 liability of sureties 393 where defendant arrested 393 verification of answer setting up title 393 writing, necessity that allegation be in 393 Appeals when appeal may be taken 444 party entitled to appeal 444 poor persons, right to defend appeal as 365 take appeal as 365 review by appeal as exclusive remedy 444 right to appeal 345 taking the appeal 346 costs of action, payment on service of notice of appeal 445 court to which appeal must be taken, county court of county where judg- ment rendered 444 entry in docket-book 453 extending time, order 445 service of order granting 445 to appeal where party dies before expiration of time 445 extension of time for appeal by heir, etc., of deceased party 445 fees of justice for making return, payment on service of notice 445 issue, date in appellate court 448 limitation on time to appeal 444 manner of taking 444 notice of appeal, demand for new trial 447 form and service 444 mailing to justice 445 INDEX TO CIVIL AND CEIMINAL JUSTICES. 741 Appeals — Continued page payment of fee of justice for making return 445 service of 346 service on justice or clerk 445 service on respondent by delivering to clerk of appellate court. 445 service through post-office, manner of 445 service upon respondent 445 service where justice dead 445 serving undertaking to stay with 348, 446 when may be served on clerk of appellate court ; . . 445 supplying defects or omissions by amendment or otherwise 349, 445 time that must elapse t«fore appeal taken after entry of judgment 444 within which appeal may be taken where summons not personally served 444 must be taken after entry of judgment 444 when perfected 349 when taken 348 return, amendment, notice of motion for order where county judge dis- qualified ; 448 contents generally 447 where new trial demanded 447 death or incompetency of justice, manner of making return 448 fee of justice for ma,king 424 further return, compelling by attachment ' 447 compelling where justice removed to another county 447 how compelled , 447 justice non-resident of state, how return made 447 power and duty of justice to make after expiration of office 447 requisites of 350 time within which justice must make 447 etay of proceedings on 445, 440 act necessary to mal^e stay effective 446 allowance of sureties on undertakings 446 exceptions to sufficiency. of sureties on undertakings 446 sureties taken for notice of vexation of delay, effect 446 failure of sureties to justify, effect on undertakings 446 filing undertaking with clerk of appellate court, effect 446 serving notice on respondent 446 when 446 justification of sureties on undertakings 446 new trial on appeal, undertakings to stay execution of judgment 445 Tindertaking to stay execution upon judgment 347, 446 service with notice of appeal 446 hearing and determination 449 calendar, date on •" 449 challenge, review of determination by justice 408 raising objections to service of summons 12 directing new trial where appellant not entitled to new trial in appel- late court 3,-3, 450 dismissal of appeal for failure to prosecute 449 error in fact in proceedings not affecting merit in appellate court . . 350, 450 742 INDEX TO CIVIL AND CKIMINAL JUSTICES. Appeals — Continued paok judgment directing new trial, proceedings before justice 450 of appellate court in cases wliere appellant not entitled to new trial on appeal 450 on appeal 449 judgment-roll, by whom prepared 450 what constitutes 450 new trial, directing before same or another justice 449 notice of hearing 449 papers on which appeal heard 449 restitution, effect on bona fide purchaser 450 oh reversal 450 reversal of judgment in personal injury action on question of law, abate- ment by death of party 452 on stipulation, proceedings thereon 449 scope of review. 449 setting off costs against recovery 450 stipulation by respondent to reverse judgment 449 straying animals, dismissal of appeal from order on claim for surplus on proof of payment 435 new trial in appellate court 354, 447-450 compromise, acceptance of offer and proceedings thereon 447 admissibility of unaccepted offer 447 after issue joined, acceptance of offer and proceedings thereon 44S costs where recovery does not exceed offer 448 less than offer 448 offer of judgment after issue joined 448 by one of several defendants after issue joined 448 severance on offer by one of several defendants after issue joined . . . 448 costs, amount 447, 448 demand for in notice of appeal 447 directing new trial before justice where not entitled to new trial on appeal 450 issue, date of 448 offer of judgment, time within which to be served after service of notice of appeal 447 proceedings in appellate court on new trial 354 review when new trial not demanded 350 right to 445 undertaking to render appeal effectual 447 undertakings to stay execution of judgment to perfect appeal 447 special sessions, from 640 when allowed 631 how taken 641 how allowed •. . 641 discharge of defendant upon undertaking 641 certificate of reasonable doubt 641 filing of undertaking 642 affidavit 642 return by magistrate or court 642 further or amended return 642 compelling return 642 INDEX TO CIVIL AND CRIMINAL JUSTICES. Y43 Appeals — Continued page argument of appeal 642 dismissal of appeal 642 service of papers on district attorney 642 appeal heard on original return .' 643 judgment on appeal 643 affirmance or reversal 643 new trial in county court 643 appeal to appellate division 643 forms 729 aifidavit on 729 undertaking 730 particular actions or proceedings, bastardy proceedings, in (see also Bastards) 658 foreclosure of mechanic's lien 325 straying animals, from order upon claim for surplus 435 strays, from final order in proceedings 344, 437 summary proceedings 476b costs 347 disbursement that may be included in 450 new trial on appeal 447 where new trial cannot be had 449 directed 449 directed before same justice or another 449 not had, award and amount 449 forms 514 notice of appeal 514 undertaking to stay execution 514 notice of delivery of undertaking 515 justice's return 515 Appearance authority of attorney to appear, how conferred and approved 364 commencement of action by voluntary appearance of parties 366 entry of time of appearance in docket-book '. . 453 failure of defandant to appear, eflfect 404 guardian ad litem for infant plaintiff, appointment 293, 364 consent to act 364 in general, in person or by attorney 364 infants by guardian ad litem 364 one hour after return of summons, right to make 404 plaintiff when defendant arrested 371 replevin, proceedings where defendant does not appear 384 non-suit where plaintiff fails to appear 412 parties, transfer of action to another justice 455 return day, on 293 jurisdiction by 1^ witnesses, of, undertaking for 545 Appellate Division appeal to, from conviction in special sessions 643 Apprentice proceedings against "'" 744 INDEX TO CIVIL AKD CEIMINAL JUSTICES. Argument _ paoe appeal from special sessions 642 Arraignment criminal cases, in ...... , 598 Arrest criminal process, under 588, 589 by whom made 588 defined 588 under a warrant 040, 584, 586, 587, 538 aid to ofF.cer 588 when arrest may he made 538 how made 538 no further restraint allowed than is necessary 588 officer must state his authority 588 officer must show his warrant 588 flight or resistance by defendant 588 breaking open door or window 589 outer or inner door 589 warrant of, forms for 688-C91 warrant cf, security for peace, form for 638 without a warrant 540, 589 by an officer 589 in what cases allowed 589 brea!:ir.g door or window GS9 at night 539 must stale authority 589 taking defendant before magistrate 589 commitment by magistrate for act committed in presence 590 by private person 590 when allowed 590 inform party of cause of arrest 590 taking prisoner before magistrate 590 retaking prisoner after escape 590 coroner's inquest, upon 647 disguised persons, of 6C6 fugitive from another state, form for 693 civil process, under, in general, action to recover money or property em- bezzled or misapplied, proving facts on which order made as con- dition to recovery 372 joinder of issue after arrest 300 summons accompanying order of arrest, when returnable 3C6 time for service of summons accompanying order 366 when order to be granted, action for fraud or deceit 370 actions in which order may issue 370 conversion 370 debtor about to abscond 370 defaulting witness after judgment rendered 398 fine or penalty, action to recover 370 joint debtors, action against one not previously served 430 misappropriation by factor, agent, brolier or other fiduciary 370 of property by public officer, attorney, or officer of corporation. 370 misconduct or neglect in professional employment 370 IITDEX TO CIVIL AND CRIMINAL JUSTICES. T45 Arrest — Continued page non-resident defendant 370 official neglect or misconduct 370 personal injuries, actions to recover damages 370 plaintiff non-resident 370 proof on -which order granted 370 property, action for injury to 370 undertaking required as condition of granting 370 woman, right to issue order of arrest for 370 the order, attaching to summons 2SC, 371 contents generally , 371 entry in docket-hook 453 fee to justice 424 issuance at time of issuance of summons 370 executing order 202, 371 appearance of plaintiff before justice, failure to appear, effect 371 time within which to be made 371 custody and detention of prisoner, adjournment of trial 396 generally 371 time prisoner may be detained 37Z duty of constable 371 failure of plaintiff to appear before justice on return 371 fee for arresting and committing persons in special proceedings. . . . 426 executing 420 notifying plaintiff of 426 manner 371 mileage for notifying plaintiff of 426 notifying plaintiff on execution of order 371 return by constable 371 taking defendant before another justice 371 justice ■ 371 subscribing and endorsing on summons 371 privilege and exemption, discharge, notice of application for order 372 of privileged person as bar to new arrest 372 by whom granted 372 proof upon which granted S72 generally 372 discharge from arrest, adjournment of trial by consent of parlies cr upon application of plaintiff 306 after appearance by plaintiff 371 appearance of plaintiff, application on 371 basis of application where made on return of order G7'l effect on execution of discharge after judgment 372 jurisdiction of discharge before judgment 372 fee of justice on hearing application 425 grounds for discharge 3r2 motion, notice " ' ^ new proof by plaintiff on motion 371 notice of motion, time for and upon whom served 371 proof which application may be made after return of order S71 undertaking required 396 delinquent witness 746 INDEX TO CIVIL AND CEIMINAL JUSTICES. Arson pao< form of information for 706, 707 Artifice contract procured by. 40 Assault jurisdiction of 16, 358 form of information for 704 limitation of action for 464 Assemblyman justice of peace as 12 Assignee replevin, right to maintain action where title acquired after wrongful taking 378 Assignment chattel mortgage 187 mechanic's lien 124 contracts, of 125 putlic improvements 125 counterclaim in action on 388 Associations service of summons on 291 Attacliment when granted 373 actions in which warrant may be granted 373 affidavit on which warrant granted, contents and filing 373 facts that must be proven to procure warrant 373 joint debtors, actions against those not previously served 430 security, fee of justice for hearing application for increase 425 undertaking, form and contents 374 warrant of 374 annexing to summons or endorsing thereon 287, 374 entry in docket-book 453 fee of justice 424 form and contents 374 jurisdiction of justice 14 execution of warrant 374 custody and care of property attached 374 effect of judgment rendered where summons not personally served and defendant does not appear 376 fee for executing. 426 hearing and determination of action where summons not served 376 inventory of attached property 374 manner of execution 374 perishable property, order directing sale 374 sale of 374 proceedings where summons not personally served 376 proceeds of sale of perishable property, disposition 374 redelivery of property to defendant, undertakings 375 return of warrant, contents and execution 376 delivery to justice of bonds or undertakings received 376 sale of perishable property 374 service of summons and warrant on defendant 292, 375 INDEX TO CIVIL AND CRIMINAL JUSTICES. T47 Attachment — Continued page time within which warrant must he executed before return day of summons 374 when to be executed 374 priority of warrant of attachment levied over execution from another court. 417 replevy or property levied upon, right to 377 vacating or modifying warrant, dismissal of action on vacating warrant, when 376 effect of vacating warrant 376 fee of justice for hearing application 424 increasing security, motion for 376 new proof by plaintiff to sustain attachment 376 papers on which motion made to vacate or modify warrant or increase security 376 power of justice to vacate on own motion 376 proof required 376 claims of third persons, action by defendant on bond, when may be main- tained 375 bond, form and contents 375 defendant's right where recovery on bond exceeds amount due plaintiff. . 375 delivery of attached property to third person on execution of bond .... 375 extent of claimant's liability in action on bond 375 jurors and witnesses, defaulting juror generally 406 jurors, criminal liability for resisting 406 defaulting juror's fee of justice for warrant of attachment for de- linquent 307, 408 witnesses generally 398 fees for procuring serving attachment against defaulter, ty whom paid 399 service within adjoining county 399 forms in 518 affidavit 518 undertaking 519 warrant 500, 519 inventory 620 undertaking by defendant 520 undertaking for delivery to third person 521 execution 511 Attorneys arrest for misconduct or neglect, in action for 370 evidence of communications to 274 poor persons, certificate of attorney as to good cause of action or defense. . . 305 verification of account , 3"! pleadings by ^^^ appearance and authority 304 appearance of party by 293, 304 authority, how conferred and proved 364 constable making service, right to act as attorney 364 law partner or clerk of justices, right to act as attorney in action 334 party to contract poor persons, prosecuting or defending for 365 when and how leave granted to prosecute or defend as 305 who may act as attorney in justice's court 364 748 INDEX TO CIVIL AND CKIMINAL JUSTICES. Auctions PAod perishable property attached, sale at 374 sale under execution to le held at public 417 Automobiles {see Motob Vehicles) Auto Trucks registration fees of 201 B BaU appeal from special sessions, on 642 criminal cases, in 616 admission to bail defined 616 taking bail defined 617 offenses not bailable 617 in what cases admitted before conviction 617 form of undertaking 618 railroad employees 619 nature of bail after conviction 619 bail on being held to answer, before indictment 620 deposit instead of bail f 23 form of order granting 723 form of order for discharge upon giving 723 special sessions, in 556,. 637 form of 637 forfeiture of 637 remittance of forfeiture 637 preliminary examination, after 544, 595 form of 696 Bailment levy and sale of interest of bailor 418 rights of purchaser of interest of bailor under execution 418 Ballot preparation on formation of jury at trial 406 Banks arrest in action against agent for misappropriating funds 370 Bastards adjournments ; 656 security from defendant 656 appeals from magistrates 658 who may appeal and in what cases 659 how taken 659 transmission of papers to county court 659 county court to hear case 659 action of county court 659 commitment of defendant for failure to give undertaking 660 forfeiture of undertaking 660 appearance of mother at county court 600 proceedings against mother 660 costs on appeal 060 new order of filiation 661 new proceeding before magistrate 661 discharge of father or mother unable to cupport bastard 661 INDEX TO CIVIL AiTD CKIMmAL JUSTICES. 749 Bastards — Continued page association with another magistrate 655 before what magistrate to be taken ... 655 commitment of defendant 656 during examination 657 costs to be paid by defendant 656 defined 654 determination of case 650 discharge upon giving undertaking 656 enforcement of undertaking 662 prosecution of undertaking 062 evidence 002 measure of damages 062 second action for subsequent breach 662 costs 003 examination of mother 654 exclusion of public in cases of 5 fee of justice for endorsing warrant for, apprehension in another county . . . 425 forms in proceedings .730-733 inquiry, into facts of 654 mother required to disclose father ~ 657 order for mother to support child 657 undertaking • 657 commitment of mother 057 order of magistrates 656 proceedings against father of mother absconding 658 reduction of araount to be paid 658 service of warrant in another county 655 undertaking given by father 655 discharge upon giving undertaking 655 proceedings before magistrate 657 undertaking for support 6r,6 form of 701 warrant against father 6^4 warrant for apprehension of person 425 who are liable for support of 654 Battery jurisdiction of ■'" limitation of action for '*^^ Bawdy House form of information for ' "^ summary proceedings in case of *'" Best Evidence ... 259 receipt of Bible evidence of pedigree in Bicycles general highway traffic law / use of highways Bilaterpl Contracts unilateral contracts distinguished 750 ' INDEX TO CIVIL AND CEIMINAL JUSTICES. Bill of Exchange page counterclaim in action allowed 299 proof of lost 270 proof of presentment of 276 Bill of Particulars failure to deliver, effect of 391 -when may be required 391 Bill of Sale vessels of, proof of 283 Bills and Notes counterclaim in action on bill or note assigned after due date 388 joinder of parties severally liable 364 effect on rights of defendant 364 pleadings, manner of 389 verification of pleadings ty attorney or agent of party 390 explanation of 262 Births evidence of 264 Blanks mandate to be free from 452 Board of Health proof of records of 280 Bona Fide Purchaser effect of issuance of execution before purchase 418 order of restitution 450 Bonds (see also Undeetakings ) acknowledgment 441 actions on, jurisdiction ■ 15, 458 bond by party on bond given to people or public oiEcer by 442 permission to prosecute bond given to people or public oflBcer 442 additional security, when may be required 442 aff davit of securities as to residence and property 441 amendment as to defects 441 appearance of witnesses 545 approval ty justice 441 change of parties, effect on bond 443 defects, amendment 441 deposit of funds for protection of sureties 442 discharging mechanic's lien 128 examination or re-examination of sureties 442 execution ly fidelity or surety company 442 manner of 441 fee of justice for drawing 424 copying, and certifying and filing 425 filing with justice 441 form as to liability where executed by two or more persons 441 in general justice or constable forbidden to buy for purpose of bringing action, etc 455, 456 joint and several where executed by two persons or more 441 justice of peace, of 4 INDEX TO CIVIL AND CKIMINAL JUSTICES. 751 Bonds — Continued page levy on negotiable bonds under execution 418 new sureties, enforcing order for 442 when may be required 442 party joining with sureties and execution, necessity 442 requisites as to form 441 sureties, number of 442 required, number 441 surety or fidelity company as equivalent to two sureties 442 variance from statutory form, efifect 441 Books production of book of account, how compelled 400 certificate to accompany books and papers deposited with clerk 454 demand by clerk on death of justice 454 duty of justice as to papers filed 455 failure of justice to deposit on removal from town or city or on being re- moved from office, effect 454 proceedings to compel delivery to town or city clerk of books and papers of justice 454 Brakes motor vehicles, on 207 Breach, of Covenant limitation of action for 463 Breach of Peace contempt of court 26, 361 Breach of Promise to ISarry jurisdiction excluded 358 Bridge injury to 220 Brokers arrest in action for funds or property misapplied 370 Brooklyn special sessions in 568 Building Contracts substantial performance of 56 Buildings breaking open buildings to replevy chattel 380 Burden of Proof (see also Evidence) upon which party 256 Burglary- form of information for 707, 709 Business judicial notice of °°' By-Laws proof of 280 G Cab-Stands general highway traffic law Calendar judicial notice of 752 INDEX TO CIVIL AND CKIMIi;rAL JUSTICES. Care paqb to lie exercised by driver of motor vehicle 191 Carriages defined 218 free use of highways 219 law of road 221 Carrier delivery of sold goods to 96 Cattle {see also Animals) proceedings against strays 27 trespass by ; 247 Census proof of 283 Certificate conviction in special sessions CCS, 635 conviction of disorderly persons 669 conviction of vagrant 665 copy of record 269 justice of the peace to accompany docket-book, deposited with clerk 454 ofiHcer, of, as evidence 275 reasonable doubt, of 641 search for paper, of 275 Challenges jury to, in criminal cases . . . '. CO 1-604, 633 peremptory challenges of trial jurors 407 Champerty and Maintenance defense to action that demand was bought or sold or received for prosecu- tion by justice or constable 456 justice or constable not to buy claim • 455 give consideration for having debt or claim placed in hands for collection or prosecution 455 Charge defendant to be informed of ,. 541, 591 jury in criminal cases 610 reading of, to defendant in special sessions 549, 6S2 Chattel Mortgages action by mortgagee for damages 176 action by mortgagee for possession of property 181 to recover debt 182 for conversion of chattels 182 assignment of 187 danger clause in 180 debt secured by 147 future advances 148 overstatement of debt 148 defined 134 description of property 148 discharge of 188 filing of 150-163 purpose and construction of statute 152 necessity of 152 change of possession in lieu of 152 INDEX TO CIVIL AND CRIMINAL JUSTICES. 753 Chattel Mortgages — C!ontinued page time 154 place 155 manner 157 payment of fees 158 effect of failure to file 159 transfer of chattels as affecting failure to file 162 foreclosure by sale of chattels 184 form of 143 form of complaint for foreclosure , 494 form of information for selling mortgaged chattels 716 fraudulent 170 parties to 144 infants , 144 partners ' 144 joint owners 144 corporations 145 railroads 146 po£>8ession of property 179 property subject to 139 contract 139 insurance policy 139 mortgage 139 lease • 139 copyright 139 nursery stock 139 growing trees 140 fixtures 140 rolling stock 140 property not owned by mortgagor 140 real estate mortgage distinguished 134 who may attack 174 oral 143 other contracts distinguished 135 sale • •■ ■ 135 conditional sale • '• 136 pledge 137 agreement to give mortgage 137 general assignment 138 assignment in trust 138 reservation of lien 138 refiling 163 object and construction of statute 165 necessity of ■ ^^^ time of 166 statement of mortgagee's interest 166 -ion by whom made *°' effect of failure 167 change of possession of property in lieu of refiling 169 retention of property by mortgage without foreclosing 180 rights of creditors ^^^ 48 754: INDEX TO CIVIL AND CKIMINAL JUSTICES. Chattel Mortgages — Continued paqb rights of lienors on mortgaged property 186 repairs 186 innkeeper 186 livery stable keeper 186 garageman 186 rights of subsequent mortgagee 187 title of parties to 134 transfer of property 175 validity of 149 usury • 150 compounding felony 150 delivery 150 alteration 151 confusion of goods • 151 when mortgagor deemed in default 176 Chattels (see also Replevin) action to recover 238 foreclosure of lien on 329-333 jurisdiction of action to recover 15, 18, 359 limitation of action to recover 463 Chauffeur competency of 192 defined 198 liability of owner for act of 194 license of 2U Checks (See Negotiable Instbuments) Child proof of age of 270 Child Begging form of information for 711 Circumstantial Evidence use of 252 Cities execution against wages of employee 419 jurisdiction of justice of 13 jurisdiction of justice of adjoining town of action against resident 360 justice of peace elected by 3 jurors, right of taxpayer to sit in action by or against 407 summary proceedings, no jurisdiction in certain cities of second class 358 summons, manner of service 291, 367 when action may be brought in adjoining town 360 City Clerk deposit of books and papers of justice with, on removal from office or from town or city 454 City Courts criminal jurisdiction of 665 Civil Actions jurisdiction of justice in 7-25 Civil Law independence of criminal and 632 INDEX TO CIVIL AND CEIMINAL JUSTICES. Y55 CivU Practice Act p^ob summary proceedings governed by article 83 359 Clergymen evidence of confessions to 273 Cloud on Title no jurisdiction of 19 Colonial Statutes proof of 278 Commissioner of Deeds oaths before 275 Commission to Take Testimony (See Depositions) Commitment apprentice. 676 bastardy proceedings 655, 656, 657 forms 732, 733 contempt of court, form for 516 defendant who appears on bail for trial 610 disorderly persons, of 669 commitment to prison 671 sentence to hard labor 671 fee of justice for warrant of 425 forms of, in criminal cases 722, 723 vagrants 721 disorderly persons 721 failure to give security to support poor person 722 bastardy proceedings 732, 733 intoxication 712 for preliminary examination 694 after preliminary examination 696 fugitive from another state, form for 693 on adjournment of preliminary examination 592 preliminary examination on 543, 595 security to keep peace 575 special sessions. In 636 vagrants, of 666 Common Council proof of records of 280 Common Informer amount of recovery 359 compromise of actions by 359 jurisdiction of action by 359 limitation in action by 464 penalty given tfi 464 Common Law proof of foreign 280 Compensation (see also Fees) laborer, of ^^ Competency {See Witnesses) 75G INDEX TO CIVIL AND CRIMINAL JUSTICES. Complaint page admission of allegation by failure to deny -. . . 390 amendment of 297 complaint not stating cause of action, demurrer 386 contents of 297 dismissal where title to real property shown by plaintiff 393 first pleading of plaintiff 386 disorderly person, against 668 foreclosure of mechanic's lien 324 forms of 484 by assignee of claim 484 by or against corporation 485 by or against unincorporated association 485 by or against executors or administrators 486 by infant plaintiff 486 by or against partners 487 for money loaned 487 on promissory note 487 goods sold 488 price agreed upon 488 services 489 by parent for infant's services 489 board and lodging 490 against maker and indorser 490 by employee for being discharged 491 against buyer for refusing to accept goods 491 for not delivering goods bought 492 warranty of soundness of horse 492 conversion 493 trespass 493 replevin 493 mechanic's lien 494 foreclosure of chattel mortgage. 494 form and requisites, account or instrument for payment of money only, how pleaded 389 verification, when complaint may be verified 389 objections constituting ground for demurrer, waiver when not raised ty de- murrer or answer 389 service with summons CC2, 366 specific actions by and against corporations, allegation of incorporation 392 misnomer of corporation, waiver v^here not pleaded 392 specifications, joint debtors not previously served, allegations in complaint. . 430 replevin, damages for injury to chattel 382 waiver of objections that complaint does not state sufiBcient facts where not talien Ly demurrer or answer i 389 security for peace, form of 687 servant or apprentice, against 675 Componnding Crime forms for 724, 725 consideration for chattel mortgage 150 contract for 47 INDEX TO CIVIL AN^D CEIMINAL JUSTICES. 757 Compromise page action fcy common informer for penalty or forfeiture 359 appeal for new trial, after issue joined 448 before issue joined ■ 447 as consideration 37 crimes, of 627 offer of judgment 296 offer of compromise by defendant, costs where plaintiil fails to recover more than offer 404 judgment on written acceptance 404 right to make and acceptance of 434 unaccepted offer as evidence 404 Comptroller (See State Comftboixeb) Computation time 452 excluding Sundays or holiday ia computation 452 Conditional Sale chattel mortgage distinguished. 135 Confessions clergymen, to 273 judgment, of (see also Judgment) 22 jurisdiction of justice 22 ' forms for 507 receipt of evidence of, in criminal cases 607 Consanguinity computation 456 juror, disqualification where related to party 408 Consent effect of, on jurisdiction 8 Consideration affection 37 compromise of disputed claim 37 contracts, of 35-39 forbearance. 36 promise to do what one is obligated to do 35 promise to marry 37 mutuality of promises 38 negotiable instruments, of 106 presumption from seal S2, 272 presumption of 2E6 Conspiracy evidence on trial for 607 Constables in general, attorney, right of constable to act as 364 duty on making civil arrest 371 execution of papers by 636 commitment in special sessions 636 coroner's warrant of arrest. ., C47 limitation of action against 463 oath of constable in charge of trial jury 411 form of 504 758 INDEX TO CIVIL AND CEIMINAL JUSTICES. Constables — Continued PAQB remuneration limited to fees 455 reward, forbidden to accept in certain cases 455 sureties, action against to recover money collected on execution 421 sworn to attend jury 311 powers, duties and liabilities, attachment against defaulting witness, power to serve in adjoining county 399 care of attached perishable property 374 damages for wrong delivery of chattel in replevin 382 disposition of stolen property 629 exceeding authority executing search warrant 653 execution in replevin, liability for failure to make return in time 421 indorsing time of receipt 417 liability for amount thereof on failure to return within five days after return day 42] exhibiting to creditor personal property levied on 417 expiration of term, completion of execution 421 liability for delivering replevied chattel to claimant where plaintiff fails to give security 381 of sureties after expiration of term to complete execution, etc 421 misdemeanor to induce suit or buy bonds, etc., for prosecution 455 not to be interested in suit 455 buy bonds, etc., for prosecution 455 payment of amount of judgment to justice on return of execution 419 penalty for wrong delivery in action for replevin 382 power to take chattel under execution of replevin 384 purchase of property at execution sale, validity 418 return to service of subpoena as evidence 398 sale of personal property under execution, posting notice of sales 417 subpoena, power to serve 398 surplus after paying judgment from money collected on execution, pay- ment to debtor 419 venire, criminal liability for false return 406 execution of mandate and process, arrest on execution against persons 420 arrest under a warrant 588, 589 a.ttachnient 374 breaking open building to replevy chattel 380 custody and detention of prisoner under order of arrest 371 executing in person and not by deputy 452 execution on foreclosure of mechanic's lien 325 levy and sale under execution 316 necessity of return of 10 order of arrest generally 371 return, notifying plaintiff 371 order summoning jury in special sessions 633 power to take chattel under execution in replevin 384 requisition in replevin 379 resistance to, execution by sheriff 4S2 return of execution against property 316, 419 returning service of summons 292 search warrant 651 service of precept in summary proceedings 473 INDEX TO CIVIL AND CRIMINAL JUSTICES. 759 Constables— Continued „.„„ service of subpoena 307 service of summons 091 service of venire 3Qn sheriff, execution by, on resistance 452 summoning jury in special sessions 632, 633 warrant go^; fees of 427 attachment against defaulting witness, by whom paid 399 , generally in action 427 criminal cases, in 55g ggg prepayment as condition to rendering service 427 serving venire, prepayment. .• 405 special proceedings 426 ionas 691 execution of warrant of arrest 691 return to search warrant 7I8 719 proof of service of summons 481 return of service of criminal subpoena 724 return to criminal venire 737 Constitution establishes office of justice of peace 1 provisions relating to justice 2 Construction ^see also Inteepeetation ; DEriNmons) contracts, of 41-46 liberal construction of pleadings 391 lien law , 131 Contempt breach of peace amounting to 361 commitment, requisites 362 criminal 26 defaulting juror 406 disorderly conduct amounting to 361 fee of justice for drawing, etc., minute or record of conviction 425 execution upon conviction 425 forms 515 warrant for 516 conviction for 516 commitment for 516 hearing before punishment, necessity for .• 361 power of justice of peace to punish 361 punishment, disposition of fine 302 fine 361 imprisonment 361 record of conviction, contents and filing 361 resistance to execution of mandate 361 warrant for arrest of offender 361 what, constitutes 361 Continuance actions before another justice, fee of justice for order 424 fee for serving order directing continuance before another justice 426 presumption of 255 760 INDEX TO CIVIL AND CEIMINAL JUSTICES. Contracts page assent of parties 39-41 meeting of minds 39 formal contract to be subsequently drawn 40 fraud 40 assignment of 125 contracts for public improvements 125 attachment in actions for breach 373 building loan 131 chattel mortgage, of 139 consideration 35-C9 promise to do what one is obligated to do 35 forbearance. 30 compromise of disputed claim 37 ailection 37 promise to marry 37 mutuality of promises 38 counterclaims in action on assigned contract 388 defined 30 essentials of 31 executory and executed contracts 33 generally 30-57 failure to plead counterclaim in action as barring action on 388 joinder of causes of action on 380 interpretation of 41-46 intent 41 against party preparing contract 42 practical construction '. 43 reasonable construction sought 44 usage 44 general and specific words 44 conflict between written and printed portions 45 agreement for liquidated damages 45 provision giving one party right to construe contract 46 jurisdiction in action of 15, 17, 358 limitation of action on 463 modification- of 50 oral and written 31 parties to 34 performance of 63-57 time for 54 impossibility of performance 55 entire and severable contracts '. 56 substantial performance 56 person making for benefit of another as trustee of express trust 363 pleading, contract for payment of money only, manner of 339 rescission of 51 sales 67-104 sealed and unsealed instruments 32 Statute of Frauds 31 unilateral and bilateral 34 INDEX TO CIVIL AND CRIMINAL JUSTICES. T61 Contracts — Continued page validity of 46-50 parol evidence to show invalidity 47 contract against good morals 47 prostitution 47 compounding felony 47 work on Sunday 47 sale of obscene literature 47 contract against public policy 43 euiorcement of illegal contract 49 contracts void and contracts voidaLle 49 Contribution no jurisdiction of action of 19 Contributory Negligence as a defense 249 person injured by motor vehicle • 196 Control motor vehicles 193 Conversion attachment in action of 373 civil arrest in action for 370 defined 235 intention 235 act of agent 235 demand 236 damages 238 form of complaint for 493 remedy of buyer of goods 101 Conveyances evidence, as 279 Conviction certificate of, in special sessions 553, 635 when filed 635 as evidence , 635 disorderly persons, of 639 certificate of conviction 669 form of 609 filing of 669 forms 729 contempt of court 516 defaulting juror 505 defaulting witness 399, 501 judgment in special sessions 634 special sessions, in 552 vagrants, of 663 Copies duty of justice to furnish copies of papers, etc 455 Copyright chattel moregage of 139 Coroners (see also Coronkbs' Inquests) justices of peace acting as (J, 648 limitation of action against 463, 464 762 INDEX TO CIVIL AND CRIMINAL JUSTICES. Coroners' Inquests page city magistrates perform duties of coroner in New York City 648 compensation of coroners 649 copies of inquisition furnished accused 648 delivery of money or property to county treasurer 648 disposition of money 648 examination by coroner 646 issuance of warrant 646 jury 646 jury fees 646 verdict 646 proceedings before magistrate on arrest of accused 647 report of coroner to supervisors 648 testimony 647 taking of 647 filing of . . -. 647 warrant of arrest 647 form of warrant 647 execution of warrant 647 witness to be subpoenaed 646 compelling attendance of witnesses 646 punishing witnesses for disobedience 646 Corporations actions by or against 23 allegations as to incorporation 392 attachment in action against 373 designation of person on whom to serve summons, revocation 368 jurisdiction of person, generally 360 when corporation deemed resident of town 360 juror, right of stockholder to act 408 misnomer of corporation, waiver 392 statute under which corporation organized, necessity for alleging 392 summons, manner of service 291, 307 on railroad corporations 367 summons, service where designated person is dead or non-resident of county 368 revoked 368 trial, corporate existence, necessity for proof where issue not raised by verified answer 411 waiver of misnomer of corporation 392 admission by member of 271 chattel mortgage by 145 criminal proceedings against 628 issuance of summons 628 form of summons 628 service of summons 628 examination of charge 628 procedure before magistrate 628 procedure before grand jury 4 628 foreign corporations, allegations as to incorporation 392 attachment 373 book of, as evidence 277 INDEX TO CIVIL AND CKIMINAL JUSTICES. 763 Corporations — Continued page summons, manner of service 367 verification of pleadings, by whom made 390 when corporation deemed resident of town '. 360 forms, complaint by or against 485 criminal summons against 725 proof of service of summons on , ,. . . 482 levy on negotiable bonds of 418 pleadings, verifications by whom made 390 residence for jurisdictional purposes 330 Correspondence contract through 39 Corroboration evidence of accomplice 607 Costs (see also Fees) in general, amendment of pleadings, payment of costs as condition 390 recovery of costs wrongfully collected 424 setting off costs against recovery on appeal 450 what constitutes costs 422 amount of, attachment against defaulting witness, fees paid for procuring and serving 399 commission to take testimony, right to disbursement 427 damages, as dependant upon recovery of 423 demurrer 423 expenses of commission to take testimony in addition to amount limited . 423 fees paid by adverse party, right to include in costs if successful 427 payable by adverse party as part of costs when paid by successful party 427 increased costs, denial where public ofF.cer joined with person not enti- tled to increased costs 423 to defendant in action against public officer 423 for official act 423 when defendant entitled to 423 limitation on amount of costs 423 recovery from justice of costs not allowable after collection 423 transfer of action, including fees before transfer 455 appeal, on - 447-450 bastardy proceedings 660 compromise after issue joined for new trial 448 disbursements that may be included in 450 new trial directed before same justice or another 449 on appeal, amount ^48 of costs and to whom awarded 447 payment of ^■*' liability for, attachment against defaulting witness, fees for procuring and serving ''■"' guardian ad litem for infant defendant 304 plaintiff. ^^* nonsuit, plaintiff on entry of judgment 412 poor persons, prosecuting or defending as 764 INDEX TO CIVIL AI^TD CRIMINAL JUSTICES. Costs— Continued P^OK particular actions and proceedings against state or public ofr.cer, increased costs to defendant 423 bastardy proceedings 656 enforcement of bastardy bond , 663 joint debtor, action against, not previously served ■ 430 payment by prosecutor in special sessions ; 634 proceeding to compel support of poor persons 673 strays, decision in favor of persons ansv^ering petition 435 summary proceedings ,...., 041, 475 security for ,422 allowance of sureties 422 amount .....'......'. 422 demand for, service on plaintiff and filing with justice 422 exception to sureties on undertakings, time for service. 422 foreign corporation, action by 422 justification, time within which sureties must justify 422 notice of filing of undertaking, service -. 422 justification, time for serving ; 422 time within which to be given after demand .' 422 undertaking, contents and execution , . 422 taxation of 380 constable's fees and expenses in replevin 380 costs 313 generally 423 mileage fees, duty of justice in taxing 427 proof of payment or incurring 424 to whom and when awarded, compromise, where plaintiff fails to recover more favorable judgment 404 continuance of action after severance by reason of admission of part of plaintiff's demand 392 defendant not united in interest who recovers jud;^ment 424 discontinuance because defendant infant, costs denied 423 by absence of justice, costs denied 423 in action on account where total account exceeds jurisdiction 412 of action on answer to title.. .' '. 393 disinissal of complaint where title to real property comes in question on plaintiff's showing 1 , 393 disqualification of justice, eostg denied. .' 423 judgment of justice, when coses denied in action on 424 upon verdict or decision 413 ■ neither party entitled to costs, when ; ; 423 poor persons prosecuting or defending as ; 365 to whom costs in favor of paid 365 replevin; when denied both parties 423 successful party 422 Counsel {see also Attorneys) defendant to be informed of right of 541, 591 Counterclaim account cr instrviment for payment of money only, how pleaded 389 admission by plaintiff of counterclaim, right of plaintiff to judgment for excess • ; 412 INDEX TO CIVIL AND CRIMINAL JUSTICES. T65 ■Counterclaim — Continued PAQii assigned claim, in action on 388 barred by failure to plead 388 bill or note assigned after due date, action on 388 definition 387 •demurrer, grounds for 208, 389 excess over plaintifif's demand, judgment , 412: executor or administrator, demand against decedent in action by 388 demand in favor of decedent as counterclaim in action against 388 judgment where counterclaim in action by exceeds demand 388 failure to plead as barring action on 300, 388 when not bar to action 388 judgment, demand for 392 effect on defendant's right against third person 412' for affirmative relief 412 where counterclaim for less than plaintiff's claim interposed 412 is over two hundred dollars 412. only interposed 412 jurisdiction of court, counterclaim limited by 388 limitation of action 465, pleading in answer 387 residue, right of defendant to maintain action : 412. rules respecting allowance 388 setoff against plaintiff's demand 412 summary proceedings in 340 trustee, counterclaim in action against 338 demand in favor of beneficiary as counterclaim in action against 388 what constitutes 387 when allowed • 298 County execution against wages of employees 419 jurisdiction of action by county officer in oflScial capacity 23, 360, Juror, right of taxpayer to sit in action by or against 407 levy on negotiable bond of county belonging to debtor 418 summons, manner of service 231, 307 County Clerk criminal contempt, filing record of conviction 361 docketing judgment on transcript generally 413 from another county 414 filing transcript issued by another county clerk of docket of justice's judg- ment *^* number plates for motor vehicles 204 transcript of docket of justice's judgment, duty to furnish. 414 judgment, duties on receiving for filing 413 County Court appeal to ^*^ new trial in 3^* removal of action to where jury cannot be obtained in justice's court 407 County Judje staying proceedings to permit appeal from order on demand for possession : of stray • • *^^ . taxation of constable's fees and expenses in replevin 380 766 INDEX TO CIVIL AND CEIMHSTAL JUSTICES. Court Boom page justice of peace, of 5 Cows {see also Cattle) trespass bj 247 Creditor's Action no jurisdiction of 19 Crimes {see also Special Sessiokb) compromising 627 how prosecuted 560 territorial jurisdiction of 581 verified allegations or denials, effect for criminal prosecutions 390 Criminal evidence of 273 Criminal Action defined 560 parties to 560 Criminal Code application of 682 when it takes effect 682 Criminal Contempts {see also Contempts) jurisdiction of 26 Criminal Conversation jurisdiction of 16, 358 limitation in action for 464 Criminal Docket [See Docket-Book) Criminal Law- independence of civil and 532 statutes - 531 Criminal Prosecution fees provided hy justice's court act not applicable 428 Cumulative Evidence use of 251 Cut-Outs prohibited 207 s Damages {see also Treble Damages) action of conversion 238 agreement for liquidated 45 assessment in highway proceedings, fee for notifying jurors to attend 426 enforcement of bastardy bond 662 evidence of opinion as to 267 false imprisonment for failure to discharge debtor imprisoned on execution. 420 mitigation as partial defense 392 pleading in action for wrong , 391 replevin, demand in answer 382 fixing damages in verdict or judgment 382 right to rerover for injury to chattel , 382 wrong delivery by constable of chattel 382 INDEX TO CIVIL AND CEIMINAL JUSTICES. 767 Damages — Continued page straying animals 432 strays, malicious seizure of alleged stray 432 subpoena, disobedience, liability to party subpoenaing 400 Danger Clause chattel mortgage, in 179, 180 Dealers number plates of motor Tehicles 204, 205 Death appeal from justice's judgment, service of notice where justice dead 445 effect of 452 effect on limitation of action 480 justice docket-book as evidence in action on judgment after death of justice. 455 filing undertaking to stay proceedings on death of justice 446 return, how made after death 447 parties, death of party after verdict in action for wrong as abating action . . 452 extension of time for appeal by heir, etc., of deceased party 445 verdict, validity where rendered after death of party 410 evidence of 264 jurisdiction denial of action brought by executor or administrator for wrongful death 358 ordering death of dog 27 presumption of 271 Decedent evidence of 272 evidence of personal transaction with 272 Decedent Estate Law jurisdiction of actions under 16, 358 Deceit action of 241 civil arrest in action for 306, 370 Decision justice of the peace of -. . . . 312 proof of foreign 280 Decrees proof of foreign 280 Deed evidence of recitals in 278 presumption of delivery of 255 proof of 279 foreign 281 Default judgment on verified complaint where defendant defaults, entry 404 proving case where defendant fails to appear or answer 404 trial upon 308 Defects aflSdavits, defects that do not impair it 456 amending pleadings and proceedings to cure immaterial 451 disregarding immaterial defects in pleadings and proceedings 451 Defendant rights in criminal case ^°^ Y68 INDEX TO CIVIL AND CKIMINAL JUSTICES. Defenses pajse demurrer to 298 limitation of action 465 ' ^ pleadings in answer 387 definitions admission to bail ; 616 • aff.davit .■ 456 arrest 588 V bastards 654 V carriage .■ 218 . chattel mortgage 134 contract ' 30 ; s conversion : . . 235 counterclaim 387 county court 682 criminal action 500 . evidence ; 250 express warranty > ■ • 72, 88 failure of proof 392 in general highway tratT.c law 226 injury to property 456 ^ jurisdiction 7 lien law, in ' 113 , > magistrate ,CS3, 682 mandate 4;';2 motor vehicle law 198 . . negligence 248 peace office 682 personal injury 456' proof , . 250 sales C7, 86 search warrant , 649 signature 682 subpoena 625 taking bail 617 tort 234 tramp 664 trustee of an express trust 363 vagrants 603 variance 392 Delivery , chattel mortgage 150 goods sold 70, C3, 96 Demand action of conversion 236 action of replevin 239 aflf rmative judgment on counterclaim 392 copy of account alleged in pleadings 391 jury trial, necessity and time for 405 limitation of action in case of 459 INDEX TO CIVIL AND CRIMINAL JUSTICES. Y69 Demurrer page answer, to 297, 389 counterclaim, ground for demurrer 389 defense, grounds for demurrer 389 failure to specify objections to counterclaim, effect 389 mode of specifying objections to counterclaim 389 partial defense, question raised on 392 specifying objection to counterclaim 389 complaint, to 201, 387 answer to causes of action not demurred to 387 form of 387 grounds for 386 of demurrer not appearing on face, raising objections ly answer . . . 389 specification of ground of objections 387 waiver of objection wben not taken by answer or demurrer 389 counterclaim, or defense , 298 form of 495 ' amendment to pleadings where demurrer sustained. 387 effect of failure of party to amend pleadings where demurrer sustained .... 387 - pleading of defendant ; 386 over, adjournment 390 where demurrer not well founded 387 right to interpose 386 trial, fee of justice 424 Deposit hoolis and papers of justice on removal from ofF;ce or from town or city. . . . 454 . in lieu of bail. 623 Depositions adjournment of trial where application made ty plaintiff, right to and length of 400 application for commission to examine witness, when and how made 400 attendance of witnesses, power of commissioners to compel 402 before issuance of warrant 537 . certificate of execution, form of 401 commission, form and contents 400 to examine witness upon interrogatories ' 400 when and how granted 400 without interrogatories on consent of parties 400 commissioners' fees for taking and returning testimony 427 disbursements as part of costs of trial 427 evidence, depositions as 402 objection to competency or credibility of witness 402 relevancy *02 executions and return of commission, manner of 401 exhibit, annexing to commission 401 expense of serving subpoena 427 fees of commissioner for subpoenas and administering oaths 427 justice for hearing application for commission 424 making returns and certificate on deposition from court of record. . 425 order and settling interrogatories, etc 424 taking deposition on commission by court of record . . . ; 425 49 770 INDEX TO CIVIL AND CEIMINAL JUSTICES. Depositions — Continued pagk forms 512 notice of application for 511 affidavit for 512 interrogatories and cross-interrogatories 513 depositions 513 filing by justice 402 inspection by either party, when allowed 402 manner of execution on commission without interrogatories 401 taking testimony of witness on commission 400 notice for commission by plaintiff made at return of summons, necessity for. 400 notice of application for commission, when required 400 time and manner of service 400 oath of witness, power of commissioner to administer 401 oral interrogatories, necessity for giving notice of time and place of exam- ination 400 on consent of parties 400 postage for sending and returning commission and papers 427 post-office, when deposition must be deposited in 401 power of commissioners to subpoena witnesses 402 preliminary examination, for 584 preliminary examination, on 594 custody of 594 defendant entitled to copies of 594 reading of depositions.. J , 592 return of depositions 597 receipt of depositions, duty of justice 402 return, certificate of execution as sufficient 402 to justice 400 search warrants 650 security for peace, form for 688 settlement of interrogatories 400 subscriptions by commissioner, stealing deposition and addressing to clerk of justice's court 401 suppression of depositions, application for order 402 grounds for 402 taken on commission, form of 513 testimony of witness, reducing to writing and subscribing 401 taken on commission, necessity for inserting question and answers...... 401 without interrogatories, annexing section 206 to commission 401 effect of objections to questions 401 witnesses fees ■ 427 power of commissioners to issue subpoena to and compel attendance of. . 402 Deputy limitation in action for misconduct of 469 Devisees extension of time to appeal from judgment against testator 445 Director limitation of action against 463 Disability effect on limitation of action 462 INDEX TO CIVIL AND CKIMINAL JUSTICES. 771 Disbursements p^qp costs on appeal, including disbursement 450 Discharge acquittal of defendant in special sessions 634 bastardy proceedings, in 656 chattel mortgage 188 defendant on appeal from special sessions 641 disorderly persons, of 670 employee, of 63 intoxicated driver 218 criminal cases 612 special sessions 634 mechanic's lien 127-129, 326 preliminary examination, on 543, 594 proceedings against apprentice 676 security to keep peace 575 Discontinuance action on account exceeding in total four hundred dollars 412 costs denied on discontinuance by absence of justice 423 ■where defendant infant 423 effect of answer of title '. 301 non-suit where plaintiff discontinues 412 Disguised Persons arrest of 666 Dismissal action after warrant of attachment vacated 376 appeal for failure to prosecute after being on calendar 449 appeal from special sessions 642 Disobedience discharge of employee for > 64 Disorderly Conduct contempt of court 26 when criminal contempt punishable by justice 361 Disorderly Persons binding out of 670 certificate of conviction of 669 form of 669 filing of 669 commitment of 609 commitment to prison 671 sentence to hard labor 671 complaint against 668 conviction of '"'8 discharge of "^^ on failure to give security 670 examination of cases of, by county court 670 forfeiture of undertaking ""^ prosecution of forfeiture 670 when new security required 670 772 INDEX TO CIVIL ANV CRIMIN-AL JUSTICES. JDisordsrly Persons — Continued ■ pabb forms in proceedings against .,. , , 718 commitment of 721 information 713-715 undertaking .' . C39, 700 warrant .....; ' 721 issuance of warrant COS keeper of prison to return list of 670 probation of CC!), 670 punishment of 009 security required '. .'.'."'' COO who are '. 608 pispossession summary proceedings, in .' 475 form of warrant of C28 Disquali^cation justice, of ..;!....;:.... .'.'. 12, ' 2S5 Distress :.'.::. ;:;..;;- increased costs to defendant for .......!...: 423 District Attorney :,:■,;•, reports of 677 District Courts of I7ew Vork provisions applicable to ; ^.. .r^!' 427 Dist-j.rbance contempt of court 26 Divorce exclusion of putlic in cases of :' '• 'i^' 5 bocket-Book ' -r-itin-RiU S<. ./• --v' . -;i,-ii,. as property of town .:....... . : ..'.......... .■.:'•■ 433 ty whom furnished ...;.:.....•......;..■.;'/'■• 433 certificate to accompacy where deposited with clerk ; ;^4 copy of entries, duty to furnish , 455 criminal cases, in 545, 596 depositing with clerk, certificate to accompany "454 town or city clerk on removal from town or city. ; 454 designation ..;........ 453 duty of justice to keep ..;...... i453 entries, how made ; 453 of hooks deposited with town or city cleric as presumptive evidence .... 454 to he made therein 433 entry of judgment in 312 entry of minute of conviction of defaulting witness 399 oral pleadings 386 entry of verdict in 313 evidence before justice of matters stated therein 434 entries in docket-book deposited with town or city clerk as presumptive. 454 in action on judgment, when , 455 examination ty any person , 453 form of 509 index to 453 keeping of 314 transcript as evidence , , 279 written pleadings, reference to 386 INDEX TO CIVIL AND: QRIMINAJ. JUSTICES. ms ..Doctors p^^g (See Physicians) rDocumentary Evidence (see oZso Evidence) ~ common-law proof ' 272" 'Dbg ■. trespass Ly 248 TJo^ FightinjT form of information for , t04 IJoor breaking, to effect arrest , 589 to serve search warrant C51 Drawing ,,■■, jury in special sessions. .^ » . . 632 iDriver (see oZso CHAUFFEins) : automobile, competency of -. ... .^ ..... ., 192 Duration mechanics' liens .'. : 126 lien for public improvement .\ ' 127 piiress , . contract procured ly ......... 60 E Earnings garnishee of < i 321, 413 Election continuance of action after part cf plaintiff's demand admitted. 302 justice of peace, of 3 Embezzlement !/ arrest of defendant, proving facts on which order igranted as condition to recovery , • • ■ •, - ,- •,. ^^^ disposition of stolen property 62S Employee execution against earnings, when and how issued 419 Employment contracts of 68-66 term of ' 60 Endorsement summons in action to recover penalty or forfeiture 367 Entry forcible (see Foecible) Equipment motor vehicles, of ""' Equitable Actions jurisdiction of Errors amendment of process or pleadings and proceedings to collect immaterial. . . 451 disregarding immaterial 774 INDEX TO CIVIL AND CKIMINAL JUSTICES. Escape page debtor imprisoned under execution, affidavit authorizing discharge as defense 421 jurisdiction of action for escape from jail liberties 15, 358 limitation in action for 464 retaking after 590 Eviction summary proceedings 334-341 E-vidence accomplice, of 607 action to enforce bastardy bond , 662 acknowledged instruments, as 279 admissibility, adjournment, testimony of witness examined on application for 196 admissions 265 offer of settlement 265 agents, by 266 over telephone 266 member of corporation 271 affidavits, ex parte affidavit, admissibility 409 affidavit of publication • 276 affidavit of serving or posting notice 276 age of child • 270 attorneys, of 274 best and secondary evidence 259 loss of best evidence 200 telegrams 261 written instruments 261 account books 261 books of account 268 books of foreign corporation 277 bringing prisoner into court by habeas corpus 561 burden of proof 256 certificate of constable to service of subpoena 398 certificate of conviction in special sessions 635 certificate of copy of record attested by seal 270 certificate of officer as 275 certificate of publication of director of census 283 certificate of search for paper. 275 circumstantial evidence 252 civil pleadings in criminal cases 6D7 colonial statutes ; 278 competency . . 251 of handwriting 270 testimony of criminal 273 conditional examination of witnesses on preliminary examination 596 confessions in criminal cases 607 confessions to clergymen 273 conveyance, laud without state, as 280 conveyances and records, as 279 copy of minutes of evidence, duty of justice to furnish 455 coroner's inquest, before ; 647 cumulative evidence 251 deceased witness, of 272 INDEX TO CIVIL AND CKIMINAL JUSTICES. 775 Evidence — Continued PAOB defendant's witnesses at preliminary examination 593 defined 250 depositions, admissibility and effect 402 designation of person appointed to make service 277 docket-book in action on judgment 455 documentary, constable's return to execution in replevin as evidence in action on undertaking 384 effect of seal on executory instrument 272 entries in docket-book as evidence before justice of matters stated therein. . . 4154 of justice deposited with town or city clerk as presumptive evidence. . . . 454 exemplification of record foreign conveyances 231 failure of proof defined 302 foreign law, of 280 form of certificate of copy of record 209 hearsay 203 husband or wife, of 272, 273 impeachment of witness 208 insane witness, of 272 interested witnesses 272 judicial notice 253 statutes 253, 254 holidays 253 scientific facts 253 history 253 wars 253 course of business 253 banking practice 253 condition of financial market 253 expectation of human life 253 courses of seasons 253 agriculture 253 calendar 253 human body 253 rivers 254 aeroplane 254 law of road 254 diseases ZHi^ union labor • 254 animals 2.)4 natural history 254 law, proof of l" lost execution or writ, of 2i 7 lost, negotiable paper 270 marriage certificate mitigation circumstances in action for wrong : 271 non-resident witness, of . 273 nurses, or oalhs arid aflP-davits by officers and committees 275 ofiicers before whom oaths and affidavits taken 275 2fi7 opinions 267 damages Y76 INDEX TO CiViL- Al^D CElMmAL JUSTICES. Evidence — Continued page' intoxication '........'... 207 value 207 ownership of unoccupied lands 270 parol evidence to vary writing 201 receipts 202 bills 202 third parties . . .» 233 delivery upon condition 203 parol, to show invalidity of contract 1 47 payments ly municipality. 271 pedigree declarations 234 births 204 deaths 264 marriages 234 entries in family Bible 205 tombstone inscriptions 205 personal privileges of witnesses 274 personal transaction between witnesses or decedent, or lunatic. 272 physicians, of 273 ' preliminary or introductory 251 presentment and protest of bills and notes 276 presumptions 255 delivery of deed 255 continuance 255 ownership from possession 255 payment 255 receipt of letter duly mailed ..........;. 256 ■consideration ..:... 250 death of 271 innocence in criminal cases 606 privilege of self-incrimination 561 proceedings before justice of the peace of adjoining state '. . 281 proof defined 230 proof of colonial statutes 278 proof of foreign records and documents 232 proof of municipal records 280 - proof of presentment and protest of foreign bills 276 proof of proceedings before justice of the peace 279 proof of public records and papers 278 proof of records in New York county 280 proof of records of state comptroller 283 proof of records of United States courts 282 proof of standard of measurement 274 proof of town clerk's records 279 recital in record of meeting 277 recitals to heirship 278 record af conveyance or mortgage of vessels 233 records and documents in United States departments 2S2 relevancy 250 resolutions 278 rules of, applicable in criminal cases 606 INDEX TO CIVIL AND CKBIINAL JUSTICES. in Evidence — Continued pagUs searches as 279 search warrant proceeding , 652 statutes " 278 subscribing ■witnesses 270 surrogate records 231 surveyor, of 274 talcing testimony on preliminary examination 504 testimony of party may be rebutted 272 transcript of docket-book as evidence before same justice 454 trial for abortion, on 007 trial for conspiracy 607 trial for treason C07 weather conditions, of 277 weight of evidence 252 Examination complainant, security to keep peace 575 waiver of 542 Executed Contracts executory contracts distinguished 33 Executions in general, application for leave to issue, where made on transcript doclceted in another county 414 cTect of discharge of de'endant from arrest after judgment 372 priority of execution levied over execution of another court. ;. . 417 replevy of property seized under, right to 377 sureties of constable, liability for money collected on execution 421 against person 420 in general, custody of judgment debtor 423 defaulting witness to collect fines imposed. 399 form 413 imprisonment of debtor 420 defaulting witness for failure to pay fines 399 jail liberties, debtor deemed in custody 420 liberty, when debtor entitled to 420 judgment where cause of action under which execution might issue is united with cause under which: cannot issue 420 limit of imprisonment of delinquent witness S99 period of confinement. 420 requisites '^l" when may issue 413 woman, right to issue execution against 420 discharge, affidavit to procure discharge 420 damages for failure to discharge. 420 duty of sheriff or jailor on receiving affidavit 420 effect on validity of judgment as to property 421 escape, receipt of affidavit authorizing discharge as defense 421 filing affidavit with county clerk. 420 penalty for not discharging 420 when judgment debtor entitled to 423 against property, joint debtors, indorsement of name of parties not served. . 429 judgment for money, requisites 778 INDEX TO CIVIL AND CEIMINAL JUSTICES. Executions — Continued PAaz levy to be made before return day 421 new execution after discharge of debtor from imprisonment 421 order of preference. 417 penalty or forfeiture, execution on judgment for 416 replevy of property seized under right to 377 representative of deceased debtor, counterclaim against executor, issu- ance of execution on 388 requisites generally 416 defaulting juror, against, form of 505 defaulting witness, against, form as to 601 exemptions 316, 466 forms 509 against the person 510 for chattel 510 indorsement of levy on execution 510 when warrant of attachment not personally served 511 garnishee of wages or income 321 general requisites of mandates 422 issuance of 314, 416, 417 constable to whom directed 416 disqualified justice may issue 860 entry of kind of execution in docket-book 453 time in docket-book 453 fee of justice issuing or renewing 424 form and contents upon judgment for money only 416 joint debtors, indorsement of names of parties not served 429 judgment docketed in county clerk's office, form of execution on trans- cript 416 on transcript 413 liability of constable for failure to return 421 power of justice 415 renewal, manner of 417 of execution, time within which may be made 417 period of renewal 417 power of justice whose office has expired 417 replevin, collection of money by same execution 416 form where execution is for chattel and money both 416 requisites 416 separate execution for collection of money 416 requisites in general 416 action to recover penalty or forfeiture 416 requisition where summons not personally sei /ed in action in which ment is granted 376 return, when to be made 416 time of receipt, indorsement by constables 417 town or city clerk on death of justice 454 proof of lost 277 replevin, in 382, 421 collection of money under same execution 382 contents of execution 382 direction to satisfy sum of money out of property 421 INDEX TO CIVIL AND CRIMINAL JUSTICES. 119 Executions — Continued page evidence, return to execution in action on undertaking 384 form and contents 421 judgment in replevin 382 manner of execution 421 power of constable to take chattel under execution in replevin 384 to issue 421 requisites 382 separate execution for collection of money 382 to whom directed 421 when to issue 415 earnings or salary of debtor, when and how issued 419 fine against delinquent witnesses 309 Imposed on defaulting juror, to collect 406 judgment against joint debtor not previously served 430 docketed in county clerk's oflBce, issuance of execution by county clerk 415 power of justice 415 to issue where judgment docketed in county clerk's office 415 time within which justice may issue 415 renewal of 316 return and satisfaction 419 entry of time of return and facts relating thereto in docket-book 453 fee for collecting money by virtue of execution 426 making return and payment to justice of amount of judgment 419 surplus, returning to debtor 419 levy on personal property 316, 417, 418 bank bills 418 bill or evidence of debt issued by money corporation to circulate as money 418 bonds of governmect, state, on municipality 418 current money 418 delivery of current money levied on 418 exempt property generally.. . . .' 417 indorsement of levy .' 417 joint property of debtor served and those not served 429 negotiable bonds of corporation 418 pledgor, interest of 418 poundage where execution settled after levy 426 lien of execution 418 bona fide purchaser before levy, effect of execution '. 418 personal property bound by execution 418 sale under execution 316, 417, 418 in general 417, 418 defacing or taking down notice of sale, penalty 417 defense to actions for penalty for defacing or taking down notice of sale • 418 notice of sale, contents and posting 417 place and time for posting 417 public auction, sale to be held at 417 purchase by constable, validity 418 validity as affected by omission to give notice 417 taking down or defacing notice 417 V80 INDEX TO CIVIL' A17D?CEIMINAL JUSTICES. Executions— Continued Paw personal property, current money. ......;.... 418 exhibiting property to creditor on written request 417 gold coin 418 personal property not present, right to sell 418 pledgor, interest of, rights of purchaser 418 selling in lots and parcels 418 Executors and Administrators actions by and against 23, 358, 360 counterclaim in action against in representative capacity of demand be- longing to decedent 388 of demand against decedent in action by 2C9, 388 judgment against where counterclaim exceeds demand in action by 388 jurisdiction of action against 16, 20, 358 by 23, 360 to recover for wrongful dealh 358 parties, necessity for joining beneficiary in actions by 383 form of complaint 486 limitation of action against , 463 actions by and against decedent, extension of time to appeal from judgment. 445 Executory Contracts executed contracts distinguished 33 Exemplification record of foreign conveyances 281 Exemptions (see oZso Executions) execution, from 316, 465 Exoneration no jurisdiction of action of 19 Express Companies residence for jurisdictional purposes 360 •service of summons on 291 Express Contract jurisdiction of breach of 15 Extinguislmient chattel mortgage ' 188 P False Imprisonment denial of jurisdiction 16, 358 limitation of action for 464 False Pretences form of information for 706 Fees constables, generally 426 prepayment for serving venire 405 coroners 649 coroner's jury 646 special sessions 550, 0"6 no fees to jurors or witnesses 636 justices 637 constables 638 mDEX TO. CIVIL i^Nl) CRIMINAL JUSTICES. 781 Fees — Continued page mileage, for service of criminal subpoena .;.•........ 627 witnesses in criminal cases 007 jurors, attending and serving upon trial of action or special proceedings 427 prepayment as condition to summoning juror 435 justice of the peace, amount generally in action 424 attachment against, defaulting witness, by whom paid 399 generally 424, 425 registration of motor vehicles 199 payment by adverse party, right to include in costs if successful 427 poor persons, liability where prosecuting or defending action as 365 prepayment as condition to rendering service 427 private person executing mandate 452 provision of justice's court act limited to fees in civil action 428 witnesses, each day's actual attendance 427 tendering fees on serving subpoena 398 Fiduciaries arrest in action for misappropriating funds 370 Filiation (see Bastakdy) form of order of 732 Filing certificate of conviction in special sessions ' 635 certificate of conviction of disorderly person 689 chattel mortgage 151-163 notice of mechanic's lien 121 ' testimony taken on coroner's inquest 647 Final Crder proceedings against strays .417, -'So summary proceedings, in 340, 475 form of "^^ Financial Matters judicial notice of ""^^ Fines arrest in action to recover • • 370 collection and disposition, fine imposed for criminal contempt -. 332 time within which fir.e must be transmitted to overseer of the poor . 362 conviction in special sessions 361 criminal contempt defaulting juror witness, how imposed ^^•' proceedings where fine imposed after judgment rendered 39fl right to impose after judgment rendered : •^. • ■ 39- defaulting witness, against "-^' ^^^ disposition of, violation of laws relating to policy ■ • • • ■>f'l t t T , ' £ 1 J, 1 J) Ol^O jurisdiction oi ■ ' 377 remission of fine imposed on defaulting juror. replevy of property seized for collection of fine, right to special sessions, payment of ' application of failure to pay to supervisor Fixtures ,.q chattel mortgage of 782 INDEX TO CIVIL AND CKIMINAL JUSTICES. Pood PAGB warranty in sale of 74 ■Forbearance consideration, as 36 Forcible Entry issues upon 474 summary proceedings in case of 471 Foreclosure chattel mortgage 184 lien on chattel 329-333 mechanic's lien, of 323-328 no jurisdiction to foreclose mortgage on real property 19 Foreign Corporation book of as evidence 277 security for costs 422 service of summons on , 291 Foreign Laws proof of 280 Forfeitures amount of recovery 359 collusive recovery by another, when not a bar 360 endorsement on summons 367 execution in action to recover, requisites 416 jail liberties, denial to debtor 420 jurisdiction of action by common informer 359 to recover forfeited chattel 359 notice of sale under execution, defacing or taking down 418 limitation of action for 463 of office, failure of justice to pay over money 456 justice or constable 456 special sessions, bail in 637 undertaking by disorderly person 669 Forgery form of information for 710 Fomier Acquittal what is 600 Former Jeopardy as a defense 560 conviction of acquittal in another state or county 582 Forms affidavit for adjournment , 498 affidavit that justice is a necessary witness 503 order transferring action 604 answer 405 title to real estate 496 undertaking on 496 appeals, notice of 514 undertaking to stay execution 514 notice of delivery of undertaking 515 justice's return 515 appointment of guardian ad litem, for infant plaintiff 482 for infant defendant 483 INDEX TO CIVIL AND CKIMINAL JUSTICES. 783 Forms — 'Continued page arrest in civil actions, a£5davit for 617 undertaking 517 arrest in civil actions, affidavit for 517 undertaking 517 order of arrest 517 constable's return 518 attachment, affidavit for 618 undertaking 619 ■warrant of 619 inventory on 520 defendant's undertaking 520 undertaking for delivery to third person 621 commission 512 notice of application for 511 affidavit for 512 interrogatories and cross-interrogatories ; 513 depositions. . . . .- 513 complaints 484 by assignee of claim 484 by or against corporation 485 by or against unincorporated associations 485 by or against executors or administrators 486 by infant plaintiff. 486 by or against partners 487 for money loaned 487 on promissory note 487 goods sold 488 price agreed upon 488 services 489 by a parent for infant's services 489 board and lodging 490 against maker and indorser 490 by employee for being discharged 491 against buyer for refusing to accept goods 491 for not delivering goods bought 492 warranty of soundness of horse 492 conversion 493 trespass ^"' replevin *"' mechanic's lien foreclosure of chattel mortgage 494 confession of judgment °"' afiEdavit when confession is over fifty dollars 508 agreement to stay execution • judgment on confession constable's notice of sale constable's oath on retiring with jury 504 contempt, warrant for ' conviction for commitment for .^M INDEX TO CIVIL ANP; CKIMIN'AL JUSTICES. Forms — Continued page criminal actions and proceedings, in 685-734 security to keep peace 687 complaint 687 deposition of witness ■ ■• 688 warrant of arrest 688 undertaking to keep peace 688 commitment on failure to give security ,..;...., 689 warrant for crime threatened in presence of magistrate 690 subsequent warrant for release i. ......... . 690 discharge for insufficient evidence 691 warrant of arrest, general form , 4 ..... . 691 aiEdavit of handwriting when, executed in another county <. 691 indorsement of warrant in another county , 691 return of constatle to 692 defendant arrested ■. 692 defendant not found. . ....... , ^ ........ , -. 692 magistrate absent : ..^ 692 after escape of prisoner ...,..., 692 fugitive from another state , i 693 warrant for : > 693 commitment of , 693 notice to district attorney ,-..... 693 preliminary examinations , - 694 commitment, for examination < 694 record informing accused of right to make statement. . . ; .-. ....... 694 statement of accused < 634 authentication of .1. ,.*,... 694 waiver of right of 695 testimony, how talcen and authenticated 695 indorsement for discharge of prisoner 695 order for defendant's discharge when in jail 696 order of commitment -. 696 certificate of bail 696 indorsement on papers in case of discharge 696 indorsement when held to answer 697 commitment after preliminary examination. 595 commitment upon adjournment 592 undertakings , 697 for appearance before magistrate issuing warrant in another county 697 adjournment of examination 698 appearance of witnesses 698 disorderly person 699, 700 on being held to answer 700 upon recommitment 700 appearance at special sessions 701 support of bastard 701 under subdivision 2 of section 844 701 adjournment in bastardy case 702 undertaking of parent in bastardy case 702 informations 703 misdemeanor ; 703 INDEX TO CIVIL AND CJaiMINAL JUSTICES. Y85 Porms — Continued page affray i 703 assault and battery .■ 704 dog fighting 704 keeper of bawdy house ..........; 704 Wgamy ^ 705 assaulting an officer 705 perjury 705 false pretences 7O6 arson .i 706 second and third degree 707 larceny ; 707 burglary 707 refusing to aid officer 708 robbery V; 709 burglary and larceny ■:-.•. . ; . . ; . ; ; 709 eeduction v ..'..;... . 703 forgery 710 rape : 710 special sessions in New York city l . . . . . 639 child begging ; 711 search warrant .....: 711 ' maiming ;..;.... 712 receiving stolen goods 712 ^ larceny .-. ; 712 disorderly person, under subdivision 1, section 899 ..;...... 713 subdivision 2 ..;..... .'. 713 subdivision 3 ..:...:■ 714 subdivision 4 '. 714 subdivision 5 715 subdivision 6 715 vagrant 715 disorderly child ; . 716 gambling place 716 selling mortgaged chattels '. : ; 716 public intoxication 717 malicious mischief 717 search warrants 711 affidavit for 717 warrant 717 return to warrant 718 affidavit to inventory 718 disorderly persons 718 warrant for 718 return to warrant 719 commitment for intoxication 712 warrants ■ ^^^ return to warrant ' 719 order that arrest may be made on Sunday. 719 permission to execute warrant in another county 719 for misdemeanor '^^ 60 786 INDEX TO CIVIL AND CKIMINAL JUSTICES. ronns — Continued page for refusing to obey subpoena. 720 against vagrant 720 to commit vagrant 721 to commit disorderly person 721 to commit for failure to give security to support poor person 722 commitments 636, 722, 723 vagrant i 721 disorderly person 721 failure to give security to support poor person 722 for felony • 722 statement and questions to be put by justice to defendant 723 bail 723 order granting 723 order for discharge on giving 723 in special sessions 637 subpoena 625, 724 subpoena duces tecum 724 return of, service of subpoena 724 satisfaction for misdemeanor 724 order compromising misdemeanor 725 order discharging defendant from custody 725 summons in criminal cases 639 summons to corporation 628, 725 removal of charge to grand jury 726 notice to district attorney 726 aflEdavit for removal , 726 certificate of county judge. 726 venire 727 return of venire 727 order that prosecutor pay costs 727 judgment against prosecutor for costs 728 certificate of conviction 728 certified copy of certificate 729 disorderly person 669 appeals 729 affidavit on 729 undertaking on 730 search warrant 650 bastardy 730 application by overseer of poor 730 examination of mother before birth of child 731 warrant of arrest for father 731 subpoena 731 order of filiation 732 commitment of father 732 commitment of mother for refusing to disclose father 733 indorsement on warrant when executed in another county 734 vagrant child 734 information against 734 summons 734 oath to jury 633 INDEX TO CIVIL AND CRIMINAL JUSTICES. 787 Forms — Continued page defaulting juror, warrant against 505 conviction of 505 execution against 505 defaulting witness, affidavit for warrant of attachment 500 warrant of attachment 500 minute of conviction 501 execution against witness 501 demurrer 495 docket 509 execution 509 against the person 510 for chattel 510 indorsement of levy on execution 510 when warrant of attachment not personally served 511 juror's oath 504 jury's verdict 506 notice to produce paper on trial 502 oath of witness ' 504 oath to juror before examination 604 offer of judgment before answer 606 acceptance by plaintiff 506 judgment upon 507 pleas 699 replevin, affidavit for 521 undertaking 522 requisition 622 notice of exception to sureties 523 notice that defendant reclaims chattel 523 affidavit to reclaim chattel 623 undertaking by defendant 524 affidavit of claim by third person 524 undertaking by plaintiff to indemnify against claim of third person. . . . 524 strays, petition for seizure 62^5 precept 525 final order for sale 526 warrant to sell 526 subpoena • ^"" subpoena duces tecum *"" proof of service of. 500 summary proceedings • 526 notice to pay rent ^^^ petition for removal for failure to pay rent 520 precept to remove tenant 527 answer of tenant 527 final order ^^^ warrant of dispossession 528 481 summons constable's proof of service of ^^^ on a corporation summons not served ^^^ 629 transcript of judgment 788 INDEX TO CIVIL AND CKIMIiTAL JUSTICES. Forms — Continued. page undertaking by defendant on adjournment 497 when defendant is in custody 498 venire 502 return of venire ., 502 in action between towns 503 verification of pleading 528 warrant of arrest by coroner 647 Fortune Tellers disorderly persons 668 ■Fraud action of 242 arrest in action for -.].- 370 chattel mortgages ". 170 contract procured ly 40 limitation of action for 463 rescission of contract 51 Frauds, Statute of chattel mortgages 143 contract to labor 59 sales of personal property 69, 86 statutory provisions 31 Freeholder surety on bond 441 Fruit Trees injury to 224 Fugitives forms for apprehension of 693 6 Gaiabling form of information for 715 Garag'e lien on property covered by chattel mortgage ^ " 186 Garnishee levy of execution against wages, earnings, or salary of judgment debtor. .S2I, •419 General Assignment chattel mortgage distinguished 138 General Verdict criminal cases, in 613 Gold sale of gold coin levied on under execution 418 Goldware proceedings as to spurious 680 681 Good Morals contract against 47 Grand Jury removal of ease to 667 forms for , ; 726 INDEX TO CIVIL AND CRIMIKAL JUSTICES. 789 iChaardiaa and Ward page ■ ' guardian ad litem of infant plaintiflf ......' 285, 293 "i appointment, necessity for and how made 304 ' consent of guardian to appointment, giving and filing 364 ' forma for appointment of 482, 483 ; liability for costs 304 ■ guardian ad litem of infant defendant 304 application for appointment, by whom made ' 304 appointment, necessity for 364 ' ' consent of guardian . . : 304 liability of guardian for costs 364 H Habeas Corpus bringing prisoner into court 561 lEabitual Criminals ' disorderly persons 668 Hand Writing ■ evidence of 270 Hard Labor sentence of disorderly persons 671 Hearsay ' ' exclusion of 263 Heirs extension of time to appeal from judgment against ancestor 445 Heirship evidence of recitals in conveyances 278 Highways (see also Motob Vehicles) animals straying on highways (see Stbays) '. deposit of rubbish on ; 219 fees for notifying jurors to attend to assess damages 426 general highway traffic law 226-233 definitions 226 . pedestrians 227 stoppin*, turning, passing and waiting of vehicles 227 right of way and operation of vehicles 228 signals 229 speed regulations • 2-9 parking 229 safety zones 229 cab stands ^-" loading and unloading vehicles — 230 vehicles ^^^ street surface cars 231 motorcycles, bicycles and similar vehicles 231 miscellaneous regulations ' 231 duties of local authorities 232 powers of local authorities 232 penalties publication and distribution of regulations 233 ... 220 mjury to ; 790 INDEX TO CIVIL AND CRIMINAL JUSTICES. Highways — Continued page injury to fruit or shade trees 224 intoxication of drivers 217 discharge of 218 law of road 208 liability of owner of carriage for act of driver 218 lights on vehicles 220 recovery of penalties 225 right of automobilist to use 191 traction engine on 219 trees along highway 223 use of, by vehicles 219 when town not liable for damages 220 Hiring contract of 58-66 History judicial notice of 253 oSice of justice of peace 1 Holiday excluding in computing time 452 judicial notice of 253 summons returnable on 366 Horn. motor vehicles 207 Horses law of road 221 untied in street 218 Househ-older surety on bond 441 Husband evidence of 272, 273 husband as necessary party in action by or against wife 363 Husband and Wife contract of married woman to work 58 I Implied Contract jurisdiction of breach of 15 Imprisonment (see also False Impeisonmekt) conviction in special sessions 634 criminal contempt 381 delinquent witness, limit of 399 discharge of judgment debtor imprisoned under execution 420 execution against person 420 fee of justice for warrant of commitment 425 Income garnishee of 321, 419 Index docket-book 470 Indictment {see Infobmation) amendment of 598 INDEX TO CIVIL AND CKIMINAL JUSTICES. 791 ^^^'^t . PAGE appointment of guardian of 293 capacity of parties gg capacity to sue ^Gi chattel mortgages by j44 contracts of cq forms for appointment of guardian ad litem 482, 483 form of complaint by 48g guardian ad litem for 285 293 guardian ad litem for infant defendant 364 limitations of actions affecting 455 work of 59 Information defined 583 disorderly person, against 668 forms of 703-717 generally 536 oath to 537 procedure upon 684 security to keep peace 533 574 special sessions in New York City, in 639 Informer compromise of action for penalty or forfeiture 359 jurisdiction of action for penalty or forfeiture 359 Injunction no jurisdiction of 19 Injuries jurisdiction in action for personal 15, 18 Innkeeper disqualification of, as justice 12, 300 lien on property covered by chattel mortgage 186 Innocence presumption of, in criminal cases 606 Inquests [See Cobonee's Inquest) Inquisiton coroners' inquests 648 Insanity effect on limitation of action 465 plea of 599 Installments goods delivered in 96 Insurance chattel mortgage of policy 139 Insurance Companies residence for jurisdictional purposes — 360 service of summons on 291, 366 Intent construction of contracts 41 element of conversion 235 792 INDEX TO CIVIL AND GRIMIl^AL JUSTICES. Interest paqb evidence of personal interest , . , 272 judgment, time from which interest tegins to run , 414 Interpleader no jurisdiction of action of 19 Interpretation contracts 41-46 lien law, of , 131 Interpreter in certain courts 421 Interrogatories commission, on, form of 513 Into^cating Liquors , i jurisdiction of courts as to 584 prosecutions relating to 579 Intoxication discharge of employee for 64 opinion as to 267 party to contract 49 sales 86 Introductory Evidence defined 251 Inventory form for attached property 523 property taken under search warrant 652 Irregularities amendment of proceedings and pleadings 451 disregarding immaterial , 451 Issue date of issue in appellate court , 448 forcible entry or detainer 474 trial of, in special sessions ....." 632 when to he joined generally 336 where parties voluntarily appear ; 386 J Jail delinquent witness, duty of jailor to keep where fine not paid 399 Jail Liberties debtor deemed in custody while admitted to 420 jurisdiction of actions for escape 15, 358 penalty or forfeiture, confinement under execution against person 420 Joint Debtors procedure where all not served, action on judgment 429 docketing judgment against part of joint debtors in county clerk's office 429- effect of judgment against part of debtors 429 enforcement of judgment , 429 execution on judgment against part, indorsement of party not served 429 judgment against those served 421 transcript of judgment against part o*, contents 429 INDEX TO CIVIL AND CRIMINAL JUSTICES. Y93 Joint Debtors — Continued page action against one not served In previous suit, answer, contents 430 complaint, contents and verification 430 costs , 430 execution, issuance 430 judgment, amount, rendition and entry 430 provisional remedies 430 right to maintain 430 Toint Besolution proof of 278 Judgment in general, demand for affirmative judgment on counterclaim 392 interest 414 judgment-roll on appeal, what constitutes on 450 pleading, manner of 391 proof of facts conferring jurisdiction in action on judgment, when re- quired 391 satisfaction, power of disqualified justice, to satisfy upon payment.... 360 actions on 425, 455 costs, when denied in action on judgment 424 docket-hook as presumptive evidence, when 455 limitation of action on 463 jurisdiction 15, 23, 358 when proof necessary ,- • • ' ^^'■ proof where docket-book lost or destroyed 455 appeal frbin. 345 special sessions 643 confession, by 411-413 affidavit of indebtedness and honesty 411 amount or judgment, that may be rendered by 411 appearance of parties before justice 411 jurisdiction 22, 359 mode of confessing judgment 411 power to enter judgment upon 411 time for entering 413 validity where not confessed in conformity with statute 412 written and signed confession 411 conviction in special sessions 634 costs against prosecutor in special sessions 635 default, by ■ 404, 411 entry on plaintiff's verified complaint where defendant fails to appear or plead •' 404 verified complaint served with summons 411 when plaintiff must prove case 404 docketing judgment in another county, right to and effect of 414 transcript in county clerk's office, on 413 of judgment where all joint debtors not served 429 «^ect of 429 cannot be. attacked collaterally 314 collusive recovery of penalty or forfeiture as bar 380 joint debtors, effect as to debtor not 6|erved of jud^'^ment against part. . . 429 of judgment ajainst part 429 failure to plead counterclaim 300 Y94 INDEX TO CIVIL AND CEIMINAL JUSTICES. Judgment — Continued page enforcement of 419, 429 discharge of prisoner or debtor under execution, effect 421 earnings, salary, or wages of debtor, enforcing judgment against 419 joint debtors, enforcement of judgment where all not served 429 forms 507 affidavit when confession is over fifty dollars 508 agreement to stay execution 508 judgment on confession 508 foreclosure of lien 332 foreclosure of mechanic's lien 324, 327 lien on public improvement 327 lien on railroad property 327 transcript of 325 lien of 413 joint debtors, judgment against part 429 judgment docketed on transcript in county clerk's office as lien on real property 413 offer of 296 forma 506 priority of mechanic's lien 123 rendition and entry 412, 413, 429 admission of part of plaintiff's demand 392 after death of party, death before verdict 410 compromise, on defendant's offer and plaintiff's written acceptance 404 counterclaim, action by defendant for residue 412 aff.rmative relief, judgment for 412 in favor of party having larger claim 412 only interposed for less than plaintiff's claim, admission by plaintiff. 412 set-off to equal plaintiff's claim 412 decision, upon '. 413 defaulting witness, minute of conviction as judgment 399 discharge of jury, power of justice to render after, where parties con- sent 410 entry in doclcet-boois 312, 453 fee of justice for entering 424 four days in which to render and enter judgment, right of justice to 413 index in doclcet-book 413 joint debtors, docketing judgment in county clerk's office where all not served 429 effect of judgment against part of joint debtors 429 transcript of judgment, contents 429 when all not served 429 married women, against 414 names of parties, entering in index to docket-book 453 non-suit 412 remission of part of verdict and judgment for residue 413 rendered and entered forthwith, when 413 replevin, final judgment, what awarded by 383 fixing damages or value of chattels 382 stipulation, by 411 INDEX TO CIVIL AND CRIMINAL JUSTICES. 795 Judgment — Continued page time for rendering and entering 313, 413 verdict, upon 413 requisites of 312 special sessions, execution of 635 special verdict, on 614 suspension of, iu criminal cases 615 taxation pf costs 313 transcript of 413 county cleric, duties on receiving transcript 413 delivery by justice on payment of fee 413 disqualified justice, power to give 360 docketing judgment in county clerk's oflBce 413 duty of justice to deliver on payment of fee 413 entry of transcript given in docket-book 453 expiration of term, power of justice to give after 414 fee of justice for granting 424 filing in county clerk's office 413 judgment as judgment of county court after filing transcript 413 replevin, contents 413 right of town or city clerk to issue where justice dies 454 time within which transcript may be filed in county clerk's office 413 form of transcript 529 when presumed to be satisfied 462 •Tudicial Notice aeroplane 254 animals 254 agriculture. . 253 calendar 253 course of business 253 courses of seasons 253 condition of financial markets 254 ' expectation of life 253 history ■ 253 holidays 253 law of road 254 natural history 254 rivers 254 scientific facts -. 253 statutes 253, 254 union labor 254 wars 253 Jurisdiction. in general, action involving title, where plaintiff fails to file undertaking 393 actions transferred to justice by another justice 455 civil jurisdiction generally 7, 358 confession of judgment 15, 17, 359 demurrer to counterclaim for lack of 389 jurisdiction of person of defendant 386 subject of action 386 denial of jurisdiction in certain cases 358 limitation ^' ^^^ 196 INDEX TO CIVIL AND CRIMINAL JUSTICES. Jurisdiction — Continued page parties 23, 300 penalties for strays in excess of jurisdictional amount 432 vacating warrant of attachment as affecting jurisdiction 376 waiver of objections to jurisdiction where not taken by answer or demurrer 389 action against executor or administrator 16, 20, 360 award of commission .■ 14 character in which parties sue or are sued 23 criminal cases, relating to intoxicating liquors 564 criminal contempts 26 denial of jurisdiction 358, 359 accounts 16, 19, 359 assault and battery 16, 359 creditor of decedent, actions to recover to extent of assets paid or dis- tributed ; 359 criminal conversation 16, 359 death by wrongful act, action by executor or administrator 359 executor or administrator, action against as such 359 false imprisonment ■ 16, 359 libel 16, 359 malicious prosecution 16, 359 people for spoliation, conversion, etc 16, 359 of state party, where 16, 359 seduction 16, 359 slander 359 title to real property coming in question 10, 21 358 defined 7 effect of consent 8 effect of lack of, in criminal cases 608 equitable actions 19 error in exercising 9 foreclosure of mechanic's lien 14, 112, 323 loss of, by unauthorized adjournments , 306 necessity of constable's return 10 ordering death of dog 27 particular actions 358 bond conditioned for payment of money, action on 15, 358 breach of contract 15, 17, 358 common informer, jurisdiction of action to recover penalty or for- feiture 359 escape from jail liberties, actions for 15, 358 executor or administrator, actions against on claim 358 fine, action to recover 15, 19, 358 injury to property 15, 358 judgment of court not of record, action to 15, 20, 358 of record, action on 358 penalty, action to recover 3^8 or forfeiture by person aggrieved 359 personal injury ; . . 15, 18, 358 replevin 15, 18, 358 surety bond taken by justice, action on 358 INDEX TO CIVIL AND CEIMINAL JUSTICES. T9T Jurisdiction — Continued page people of state a party 16 persons, of 3C)0 corporations 300 natural persons 300 receiver in supplementary proceedings, action by 360 representative, action by 16, 20, 360 town or county ofEcer 360 police courts, of 572 proceedings against strays 27 recovery of rent 16 residence of parties 23 slander 16 special sessions in Albany 570 special sessions in New York 569 special sessions, of 565 exclusive jurisdiction 567 removing ca^e to grand jury 507 summary proceedings 16, 28, 338 territorial, of crimes 581 territorial, of justice 14 voluntary appearance 11 when question of, determined 9 Jury Box use of 309 Jury Lists special sessions, for 032 Jury and Jurors accommodation for 611 acquittal in criminal case, on instruction of court 609 additional jurors, entry of order for, in minutes 407 from by-standers 407 how obtained 407 ballots of jurors, preparation and depositing in ballot box 405 communications to . . . .- 009 . conduct of, in criminal cases 611 ■ criminal cases - "^'■ charge to ^l-' conversation between, in criminal cases 6C9 coroner's ^^° decision of law in criminal case 610 delinquent juror '*0u attachment against defaulting jurors, making and execution 40S criminal liability for resisting service of attachment 406 execution to collect fine imposed on defaulting jurors 406 failure to appear as contempt 406 fees of justice for drawing, etc., minute or record of conviction 425 execution upon conviction 425 fine to be imposed on defaulting jurors 406 forms ■ ■ ■ ■ "' liability where attachment issued 406 798 INDEX TO CIVIL AND CEIMINAL JUSTICES. Jury and Jurors — Continued page punishment 406 remission of fine imposed on defaulting jurors 406 depositing names of jurors who have served in second box 425 delinquent juror, fee of justice for warrant of attachment 425 discharge of _ 406 criminal cases 612 when lack of jurisdiction is shown 608 drawing panel 405 entry of names of persons returned in docket-book 453 exemption or excuse of 309 failure to attend special sessions 556, 636 fee of justice for precept to notify jury 425 formation of jury at trial 405, 406 ballot, how prepared 406 depositing ballot in box 406 drawing jurors 406 fee for notifying juror to attend '. 426 of justice for empaneling and swearing. 424, 425 jury list, drawing jurors from 405 number of jurors 406 fees 426, 427 attending and serving upon trial of action or special proceedings 427 for notifying jurors to attend 426 in highway proceedings to assess damages 426 special sessions 636 jurors as a witness in criminal case 609 jury list, delivery of certified copy to justice 404 fees of clerk for delivering copy 404 for court not of record 404 liability of clerk for failure to deliver copy 404 limiting names ot residents to territorial jurisdiction of justice 404 two or more lists, combining 405 new venire, when to be issued 407 oath to 310 form of 504 before examination 504 polling, in criminal cases 615 proceedings on Sunday 6 removal of action to county court where jury cannot be obtained 407 return into court for information 611 selection of 309 separation of, during criminal trial 609 sickness of, during trial 610 special sessions, in 550 swearing of 310 sworn in criminal cases 604 taking papers in jury room 611 talismen, or additional jurors 407 trial in special sessions 632 Tenire, fee of justice 424 when new to be executed 407 INDEX TO CIVIL AND CKIMINAL JUSTICES. 799 Jury and Jurors — Continued page verdict of 311^ 612 form 506 when cause triable without. . . .• 308 Justice Court Act when to take efifect 457 Justice of the Peace {see also Maqiskbates; Peeliminaby Examinations; Special Sessions) action against executor or administrator 16, 20 appeal from decision of 345 bond of 4 books and papers, depositing with clerk of town or city on removal there- from 454 on removal from oflBce 454 books and papers, effect of failure to make deposit 454 proceedings to compel delivery to town or city clerk 454 certificate to accompany books and papers deposited with clerk 454 character in which parties sue or are sued 23 confession of judgment 22, 359 consanguinity, how computed 456 criminal contempt, what constitutes 361 constitutional provisions relating to 2 coroner, acting as 6, 648 decision of 312 disqualification of 12, 285, 361, 456 innkeeper or tavern-keeper 360 duty to make order transferring action to another justice on expiration of term or removal from town 454 elected by city 3 election of 3 expiration of term, power to give transcript after 414 issue execution or renewal thereafter 417 extent of jurisdiction of justice 14 fees of, attachment against defaulting witness, by whom paid 399 prepayment as condition to rendering service 427 special proceedings or actions not before justice of peace 425 special sessions, in 556, 037 when associated with another justice 424, 425 history of ofiBce of 1 inability to act in criminal case C87 inducements for business prohibited 455 issuance of execution 314 jurisdiction {see also Jukisdiction) as affected by residence of parties 23 accounts 16 action against executor or administrator 16 action against heirs or next of kin 16 action for escape 15 action on bond 15 action on judgment 15i 20 action to recover rent 16 assault 1^ 800 INDEX TO CIVIL AND CEIMINAL JUSTICES. Justice of the Peace — ^^Continued page battery 16 criminal contempt 26, 361 criminal conversation 16 contract actions 17 defined 7 equitable actions 19 effect of lack of jurisdiction 8 error in exercising jurisdiction 9 false imprisonment 16 fine or penalty 15, 19 foreclosure actions ' 21 justice of city or village 13 libel 16 limited by nature of action 15 malicious prosecution IC matters of account 19 mechanic's liens 112, 323 ordering death of dog 27 people of state are party 16 personal injuries 15, 18 raising objections to illegal service of summons 12 replevin 15, 18 seduction 16 slander 16 special proceedings 26-29 strays 27 summary proceedings 16, 28, 338 title to real property involved 16, 21 voluntary appearance 11 when question of jurisdiction is determined 9 liability for costs wrongfully collected 424 location of courtroom 5 members of legislature, duty of tax cognizance of civil actions 301 misdemeanor to offer inducements for business or buy bonds, etc., to prose- cute 466 number of 3 oath of 4 oaths before 275 ofEce of 1-6 origin and nature of office 1 papers filed, duty to preserve 455 penalty for not paying over money 456 proceedings on Sunday 6 proceedings to fce public 5 proof of proceedings before 279 proceedings upon return day 293 removal of 580 replevin 238 subpoena duces tecum, issuance 400 supreme court, when power possessed by justice 361 term of ; 3 INDEX TO CIVIL AND CKIMINAL JUSTICES. 801 Justice of the Peace — Continued page town ofF.cer, as 6 trial without jury 308 undertaking of 4 vacancies in office of 3 Justice's Court (see Justice cf the Peace) place of holding 361 room in which liquors sold or adjoining room not to he held in 361 L Labor contracts of 58-06 Landlord and Tenant (see also Summabt Pboceedings) jurisdiction of summary proceedings 28 summary proceedings 334-341, 4G8-476d forms 526 jurisdiction of 28 Larceny disposition of stolen property , 029 form of information for 707 Law of Boad general highway traffic law 226-233 judicial notice of 234 motor vehicles 208 statute stating 221 Lawyers {See Attobnets) Lease chattel mortgage of 139 Legislature justice of the peace, duties of members to take cognizance of civil actions . . . 361 no power to abolish office of justice of peace 2 Letter presumption of receipt of 256 Levy execution, under 316 Libel decision of law and fact by jury 610 denial of jurisdiction. !"> ^58 eon jurisdiction of crime °°* limitation of action for Licenses chauffeurs' 211,212, 213 Liens execution against wages, salary, etc personal property bound by foreclosure of lien on chattel 329-333 sale of property to satisfy lien ^29 51 802 INDEX TO CIVIL AND CKIMIif AL JUSTICES. Liens — Continued page notice of sale 330 contents of 330 verification of 330 service of 330 advertisement of sale 330 publication of .... , 330 posting 331 redemption after sale 331 disposition of proceeds 331 other remedies than sale by advertisement 332 enforcement of lien by action 332 seizure of chattels in action 332 judgment in foreclosure action 332 actions in inferior courts ■ 333 application of lien law 333 mechanics' 112-132 property covered by chattel mortgage 186 purchase price of goods 77, 97, 98 reservation of, distinguished from chattel mortgage 138 transcript in county clerk's office, judgment as lien on real property 413 Iiiglits carriages, on 220 illumination of number plates / 209 motor vehicles 207 Limitation of Time {See Statute of Limitations) Liquidated Damages agreement for 45 Liquors (see also Intoxicating Liquors) justice's court, holding in room where traffic in liquors authorized not per- mitted 361 Livery Stable Keeper lien on property covered by chattel mortgoge 186 Lookout by driver of motor vehicle '193 Love consideration, as 37 Lunatics contracts of 50 evidence of 272 evidence of personal transaction with 272 party to sale 86 return on appeal where justice becomes a lunatic 447 M Magistrates (see also Pbeliminary Examinations) commitment by, for acts committed in presence 590 defined .5(53^ 682 defendant taken before 587 INDEX TO CIVIL AND CRIMINAL JUSTICES. 803 Magistrates— Continued page inability to act 587 issuance of subpoena by 6gO jurisdiction of 53(j one arrested without warrant to be taken before 589 590 suppression of riots 578 who are 583 llail notice of appeal, service by 445 Kaiming form of information for 712 Ualicious Iliscliief form of information for 717 Ualicious Prosecution denial of jurisdiction 16, 359 limitation in action for 464 JIalpractice limitation in action for 464 ICandate definition 452 execution by constable in person and not by deputy 452 private person, when may be allowed 452 fee for serving to commence special proceedings 426 of justice for mandate to commence special proceedings 425 to private persons executing mandate 452 mileage to constable in serving or executing 426 private persons executing same, powers and liabilities 452 requisites generally 452 resistance to execution as criminal contempt 361 execution by sheriflF 452 seal, necessity for 452 Manufacturers . motor vehicles, of, registration of 204 Marriage certificate as evidence of 276 promise of, as consideration 37 evidence of • 264 Married Women capacity to sue and defend without joining husband. 363 judgment against, right to rendered and enforced 414 labor of -•• 5* Marshaling Assets no jurisdiction of action of Master proceedings against, for misusage of apprentice 6' 8 Master and Servant ,„ „„ ^ ^ fit,, 68-66 contracts of labor execution against wages of employee Measurements evidence of 804 INDEX TO CIVIL AND CRIMINAL JUSTICES. mechanics' Iiiens page assignment of 124 assignment of contracts 125 public improvements 125 building loan contracts 131 contents of notice of lien 118 construction of lien law 131 definitions 113 demand of terms of contract 117 discharge of 127 certificate of lienor 128 failure to foreclose 128 order of court 128 bond . . • 128 payment of money into court 129 lien for public improvement 129 duration of 126 lien for public improvement ....'. 427 enforcement of : : 132 extent of lien '115 filing of notice of .". . . ■ 121 foreclosure of 323-328 JTirisdiction of justice's court 14, 112, 323 action in court not of record 324 summons 324 service of summons i 324 joinder of issue 324 pleadings : 324 judgment '. : . 324 execution 325 appeals 325 transcript of judgment 325 costs and disbursements '325 judgment in case of failure to establish lien 326 discharge of lien 326 preference over contractors 326 judgment 327 lien on public improvement 327 lien on railroad property 327 form of complaint 494 labor on railroads 116 liability of owner for advance payments 116 collusive mortgages and incumbrances 117 priority of liens. 123 priority of liens for public improvements 132 public improvements 116 renewal of 126 service of notice of 122 verification of 118, 120 Merger chattel mortgage 188 INDEX TO CIVIL AND CRIMINAL JUSTICES. 805 Hileage page aCdavit of constable, contents 427 constalle's mileage in serving summons 427 duty of justice in taxing mileage fees 427 execution of order of arrest, for notifying plaintiff of 426 , Kow computed 427 notifying jurors to attend 427 serving or executing mandate in special proceedings 427 ■where mandate served or executed against two or more persons in one action. 427 . two or more mandates are served on same journey 427 minister evidence of confessions to 273 minutes trial, of _ 314 ICirrors motor vehicles 208 misdemeanor failure of justice to pay over money 456 justice or constable buying bonds, etc., for prosecution 456 misnomer amending pleadings or proceedings to correct 451 ■waiver of misnomer of corporation in pleadings 392 mistakes amending pleadings or proceedings to correct immaterial 451 correction of mistakes in perfecting appeal 445 disregarding immaterial errors and mistalies 451 mobs suppression of • 534 modi^cation contract, of ' 50 money levy of execution on current money 418 on bank bills under execution 418 sale of gold coin levied on under execution 418 Xoitgage (see also Chattel Moktgages) chattel, distinguished from real estate mortgage 134 1 OQ chattel mortgage of evidence of recitals in limitation of action to redeem from 462 no jurisdiction to foreclose, real estate 19 proof of ^(9 vessels, of, proof of ; motorcycles {see also Motok Vehicles) general high^way traflBc la-w -^ motor Vehicles age of operator ^^^ application of motor vehicle law auto trucks and trailers in excess of twenty-five thousand pounds 203 care to be exercised by driver -J, laA competency of driver 806 INDEX TO CIVIL AKD CEIMIITAL JUSTICES. Motor Vehicles — Continued pagb speed of machine. 192 contributory negligence of person injured 196 control of 193 definitions 198 disposition of registration fees 216 fees for registration 199 fees in lieu of taxes 203 horn 207 illuminated number plates 209 law of road 208 liability of owner for act of chauffeur 194 licensing operators and chauffeurs 211 lights 207 local ordinances 210 lookout for other travelers 193 number plates 204 punishment for violation of law 213 rates of toll on motor vehicles 216a regulation by manufacturers and dealers 204 registration of vehicles 199 right to use highway 191 sale and registration by vendee 203 signals 207 speed 209 suspension and revocation of license of operator or chauffeur 215 trailers 203 use of dealer's number plates 205 use of trailers , . . . 203 violation of law 195 warning of approach 193 Uunicipal Corporation execution against wages of employee 419 jurors, right of taxpayer to sit in action by or against 407 levy on negotiable bonds of 418 proof of payments by 271 proof of records of 280 serving summons on 291, 367 Mutuality promises, of, as consideration 38 N Name amendment of pleadings or proceedings to correct 451 proceedings to show true or full name of unknown defendant 368 misnomer of corporations in actions by or against, waiver 392 unknown defendant, manner of designating in summons 368 Natural History judicial notice of. 254 Necessaries sale of 86 INDEX TO CIVIL AND CKIMINAL JUSTICES. 807 Negligence {see also Motob Vehicles) page contributory negligence 249 definition 248 jurisdiction of action of 18 liability of owner of motor vehicle, for act of chauffeur 194 limitation of action for 464 presumption of 248 Negotiable Instrument counterclaim in action upon 299 by what law governed 105 requisites of negotiability 105 consideration 106 negotiation 107 rights of holder 108 liability of parties Ill) proof of 270 New Promise revival of action barred by statute of limitations 465 Newspaper a£Sdavit of publication, of 276 New Trial directed on appeal 353 on appeal from special sessions 643 proceedings before justice upon new trial 450 right of appellant to new trial on appeal 354, 447 New York City coroner's inquest in, by city magistrate 648 proceedings in special sessions in 638 special sessions in '. 557, 569 New York County proof of records of 280 Next of Kin jurisdiction of action against 16 Noise contempt of court 26 Non-chistians mode of swearing as witness ^"9 Non-residents actions against ' 23 arrest of, in civil actions 266 arrest of non-resident defendant 3/0 attachment in action against 373 limitation in action against • • -460. 434 owners of motor vehicles 2-6 place of trial of action by or against non-resident of county 360 verification of pleadings by attorney or agent -. 390 Won-s'j.it entering judgment . entry where plaintiff fails to appear after defendant arrested '• 371 judgment of fight of plaintiff to submit to after committing cause to jury 4iu when to be rendered 808 INDEX TO CIVIL AND CEIMINAL JUSTICES. Notary Public page certificate of protest .■ . . 276 oaths and aff.davits before 275 Notes (see Negotiable Insteumewts) proof of lost 270 proof of presentment of 276 Notice affidavit of service or posting 276 application for commission, for 511 mechanic's lien, of 118 production of paper upon trial, form of 502 sale, of, by constable, form of 511 sale of personal property under execution 417 to pay rent, form of 526 Nuisance abatement of 6S2 Number Plates illumination of 209 motor vehicles 204 Nursery Stock chattel mortgage of 139 Nurses evidence of 273 Oaths and Affrmations commission to take testimony, power to adniinister 401 • constable in charge of trial jury, form of oath 410 fees of justice for administering 425 form, constable to attend jury 504 information, to _. lo^ juror 408 -jury, of 310 form of 504 before examination 504 criminal cases, in C04, 633 justice of peace, of , 4 oflF.cers or committees, by 275 taken without the state 275 who authorized to take 275 witnesses, form of affirmation 408 form of oath 408, 504 mode of swearing 408 other mode in lieu of prescribed form 408 preliminary examination as to binding oaths 409 of infant or incompetent : . 409 swearing non-christian 409 Offer judgment, of 296 forms 206 INDEX TO CIVIL AND CKIMINAL JUSTICES. 809 Office PAGE justice, of 1-6 origin and nature 1 Officers arrest in action for misconduct or neglect in ofEce . ., 370 to recover money or property embezzled or misapplied 370 costs, when entitled to increase in action against 42 i executions against salary or earnings 419 judgment against delinquent witness in favor of oir.cer to whom fines are directed to be paid 3D9 jurisdiction of action by town or county oGcer in official capacity 330 verification of pleadings in action by public ofiicer in behalf of state 390 Omissions appeal, supplying omissions in perfecting appeal ....'. 445 Omnibus defined 199 registration fees for 201 Option nature of <58 Oral right to plead orally 386 Oral Contracts (see also Conteacts) written contracts distinguished 31 Order {See Final Oedeb) Orders compelling production of boo!: of account 4C0 entry in docket-bool: 453 Ordinn.cces motor vehicles 210 proof of 280 violation by chaufTeur 195 Oswe~o special sessions in 509 Outlawed {See Statute o? LiiCTATiONS) Overseers of tie Poor fines imposed for contempt, payment to 362 on defaulting juror, payment to 406 straying animals, when proceeds of sale to be paid to 434 Ownership presumption of ^°^ P Papers copies, duties of justice to furnish 455 fees for furnishing ^55 fee of justice for filing paper required to be filed 424 making copy ^"^ Parking' general highway traffic law 2-9 810 INDEX TO CIVIL AND CRIMINAL JUSTICES. Parol Evidence (see also Evidence) paoi receipt of 261 to show invalidity of contract 47 Partial Defense pleading mitigating circumstances in action for wrong 391 Parties amending pleadings or proceedings to correct name 451 assent of, to contract 39-41 capacity to sue and defend 386 demurrer to capacity of plaintiff to sue counterclaim 389 infants 364 married women 3C3 chattel mortgage, to 144 contracts for labor, to 58 contracts, to 34 criminal action, to 560 designation of unknown defendant 368 joinder and non-joinder, defendants, who may he joined 363 demurrer for defect of parties 386 misjoinder of parties plaintiff 886 parties severally liable upon same written instrument 364 persons severally liable upon written instrument, effect on rights of defendant '. 364 plaintiffs, who may be joined 363 necessary and proper parties, beneficiary, necessity for joining in action by executor or administrator, etc 363 husband of party, necessity for joining 363 real party in interest, necessity for prosecution of action by 363 trustee of an express trust defined 303 necessity for joining beneficiary in action by 363 rebuttal of testimony,, of - 272 substitution of parties, bonds and undertalcings, effect of substitution on. . . - 443 Partition no jurisdiction of action of , 19 Partnership chattel mortgage by 144 in general, residence for jurisdictional purposes 360 service of summons on 291 summons, service on partnership doing business in county other than that of residence 367 Passenger contributory negligence of 196 Passing (See Law of Road; Highways) Patent proof of 282 Paupers proceedings for the support of 672 who may be compelled to support poor relatives 672 order to compel support 672 when support apportioned among different relatives 673 costs 673 INDEX TO CIVIL AND CKIMINAL JUSTICES. 811 Paupers — Continued pagk failure to comply with order 673 parents leaving children chargeable on public 674 seizure of property 674 warrant 674 discharge of warrant 674 sale of property seized 675 power of superintendent of poor 675 Payment chattel mortgage, of 188 municipal corporation, by, proof of 271 presumption of 255 Peace security to keep 533, 574 forms in proceedings to require security for 687 complaint 687 deposition of witness 688 warrant of arrest 688 undertaking to keep peace 688 commitment for failure to give security 689 warrant for crime threatened in presence of magistrate 690 Bubsequent warrant ^ 690 dischairge for insufficient evidence 691 Peace Officers arrest by 588 defined . . 682 execution of warrant of arrest by 586 who are ........ ^ 686 Pedestrians general highway traflBc law 227 Pe.digree ; ' evidence of 204 Penalty- amount of recovery. 359 animals straying on highway, by whom brought 431 disposition of penalty 431 arrest in action for 370 collusive recovery by another, when not a bar 360 indorsement on summons 367 execution in action to recover, requisites 416 failure to discharge persons imprisoned on body execution 420 jail liberties, denial to debtor 420 jurisdiction ' r 15, 19, 358 of action by common informer 359 person aggrieved 359 jury list, penalty imposed on clerk for failure to deliver 404 justice of the peace for not paying over money 456 limitation in action for '■ ^'^^' ^64 notice of sale, defense to actions for penalty for defacing or taking down. . . . 417 replevin, penalty for wrong delivery of chattel by constable 382 strays, amount of ' penalty for wilfully setting animal at large 436 812 INDEX TO CIVIL AND CKIMINAL JUSTICES. People PAGE jurisdiction of action by or against. 16 spoliation 16 ° Performance contract, of 63-57 sale of goods 70 Perishable Property sale of attached property 371 Perjury form of information for 705 Personal Injury arrest in action for 370 death of party after verdict as abating action 452 definition 456 joinder of causes of action for 386 jurisdiction of actions for 15, 18, 358 limitation of action for 464 mitigating circumstances as partial defense 392 necessity for pleading 391 Personal Obligation limitation of action on 463 Personal Property attachment in action for injury 373 Personal Transaction evidence of 272 Petition strays on highway 342, 525 summary proceedings, in ,...,, 339, 471 forms 526 Physicians evidence of 273 Plaintiffs {See Pakties) Plea criminal cases, in 599 kinds of plea 599 oral '. • 599 form of 599 how to put in 599 insanity 599 withdrawal of . . .• 600 effect of plea of not guilty ; 600 what is former acquittal . . . ., 600 refusal to plead 600 special sessions, in 549, 632 Pleadings {see also Complaint; Answer) allowed 296 amendment 304, 390, 460 adjournment, when to be allowed after amendment 390 allowance to promote substantial justice 390 costs as condition to granting 390 mistakes, errors, and irregularities 460 INDEX TO CIVIL AND CEIMINAL JUSTICES. 813 Pleadings — Contiinied. page bill of particulars 391 complaint, first pleading 386 form and requisites 386 condition precedent, how pleaded 391 construction generally 391 copy of account alleged in pleadings, right to on demand 391 defendant, pleadings by 386 entry of memorandum of written pleadings in docket-book 453 oral pleading in docket-book 453 enumeration of pleadings 386 evidence in criminal cases 607 form of 296, 386 forms of ... , 528 generally 296 issue, when to be joined 336 where parties voluntarily appear 386 joinder of causes 386 causes of actions that may be joined 386 demurrer for improperly uniting causes 386 replevin 378 joinder of issue before adjournment where both parties appear. 386 judgment, how pleaded 391 mitigating circumstances and action for wrong, necessity for pleading 391 new action where title to real property brought in question 394 oral or written 296, 386 pleadings, entry in docket-book 386 private statute, how pleaded 391 specific pleas and allegations, incorporation in action by or against cor- poration 391 limitation of actions 360 variance 392 amendment 391 failure of proof, distinguished from variance 3D2 immaterial variance, amendment of pleadings 392 effect of - 392 material variance, what constitutes - 391 verification "^"2, 390 by whom made ^^^ defective verification, effect and remedy for 390 form of affidavit 390 how made 390 want of verification, effect and remedy for 390 written pleadings, filing 386 Pleading Over demurrer not Well founded, where 387 Pledge chattel mortgage distinguished 137 Police organization of °'° 814: INDEX TO CIVIL AND CRIMINAL JUSTICES. Police Courts {see also Speciai. Session) pag» compensation of justice 572 jurisdiction ■ 572 trials in 031-C39 Police Justice oaths before 275 Policy chattel mortgage of insurance 139 disposition of fines imposed for violations 561 Poor fines imposed for contempt, use for benefit of 3G2 overseer, recovery of penalty imposed on clerk for failure to deliver jury list. 404 penalty for straying animals, payment to overseer 434 surplus from sale of stray animals, payment for benefit of 434 Poor Persons [see also Paupeeb) appeal, right to defend as 365 right to take .365 costs in favor of, to whom paid 365 liability for 365 improper conduct in prosecution or defense as ground for revocation of lease. 365 judgment, including costs 365 leave to prosecute or defend as, petition for 365 when granted 365 liability for costs and fees where prosecuting and defending as 365 of former actions as tar to right to prosecute or defend 365 petition to prosecute or defend, certificate of good cause of action or defense . 365 contents, verification 365 revocation of leave to prosecute or defend 365 wilful or unnecessary delay as ground for revocation of lease 365 Population proof of 283 Possession mortgaged chattels, of 179 Posting notice of sale to foreclose lien 330, 331 precept issued on petition where straying animal seized 433 Post-office deposition, duty of justice to receive from 402 notice of appeal, service through, right and manner of 446 replevin, depositing summons and papers where defendant not found 380 Poundage fees to constable where execution settled after levy 426 Power of Attorney evidence of recitals in 278 Practical Construction contracts, of 43 Precept fees for serving for commencement of special proceedings. . . . .' 427 of justice for precept to commence special proceedings 425 notify jury 425 strays on highway 343, 433 forms 525 IiVDKS TO CIVIL AND CKIMINAL JUSTICES. 815 Frecept — Continued faqe summary proceedings 339, 472 service of 473 Freliminary Evidence defined 251 Preliminary Examination adjournments 542, 591 commitment on adjournment 592 form of 592 after coroner's inquest 647 bail 544 commitment of defendant 595 order for commitment 595 order for bail on 595 form of , 595 conditional examination of witnesses 596 custody of depositions and statement 594 defendant entitled to copies of , 594 defendant taken before magistrate 587 defendant to be informed of charge 541 defendant to be informed of right of counsel 541, 591 adjournment to send for counsel 591 depositions 584 discharge of commitment of defendant 543 discharge of defendant 594 examination of witnesses 542, 592 defendant's witnesses 593 filing of papers 597 forms for 694 commitment for examination 694 record informing accused of right to make statement 694 statement of the accused 694 authentication of 694 waiver of right of 695 testimony, how taken and authenticated 695 indorsement for discharge of prisoner 695 order for defendant's discharge when in jail 696 order of commitment 696 certificate of bail 696 indorsement on papers in case of discharge 696 indorsement when held to answer 697 information ^^^ defined 583 procedure upon ^^^ justice's criminal docket "96 magistrate. °^^ defined ^^^ who are magistrates ^^^ magistrate unable to act '• ^°^ reading of depositions 542, 592 return of depositions "97 816 INDEX TO CIVIL AND CEIMINAL JUSTICES. Preliminary Examination — ^Continued page statement by prisoner , 542, 593 informed of right to make 593 waiver of right to 593 taking of statement 593 statement to he read to prisoner 593 reduced to writing and authenticated 593 testimony, taking of 594 authentication of 594 undertaking for appearance of witnesses 596 commitment of children 596 use of stenographer 597 waiver of 542 warrant, issuance of 584 summons in lieu of 585 form of warrant 585 name or description of defendant 586 statement of ofiFense 586 executed by whom 586 indorsement on, for arrest in another county 586 arrest under 586 arrest in another county 586 bail , 587 prisoner carried from county to county 587 power and privilege of officer. 587 who may be present at 594 witnesses to be kept apart .' 594 Presumptions {see also Evidence) consideration 256 from seal 272 continuance, of 255 death of 271 delivery of deed 255 ownership from possession 255 payment 255 receipt of letter duly mailed 256 innocence, of _. . 606 negligence, of 248 Prevention crime, of : 573-577 riots, of 634, 577 Principal limitation of action by 459 Printer affidavit of 276 Priority liens, of 123 Prisoners searching 561 Private Persons execution of mandate by 452 INDEX TO CIVIL Al^D CRIMINAL JUSTICES. 8lT Privilege page Belf-incTimiuation ; ; 5G1 Probation disorderly persons CC9, 670 officers 555 Probation 0:£cers appointment, duties, etc 562 Procedure civil actions, in 322 Process {See also Executions; Mandates; Summons; Waekants) Professional Criminals summary punishment of : 667 ProHts issue of execution agai^st profits of debtor 419 Promissory Notes (see also Keootiable Instruments) counterclaim in action upon 298 form of complaint on ; . . 487 proof of lost ., . . . 270 proof of presentment of '.)... 276 Proof defined 250 failure of proof distinguished from variance 392 Property arrest in action for conversion 370 definition of injury to 456 joinder of causes of action for injury to 386 jurisdiction of action for injury 358 mitigating circumstances as partial defense to action for Injury 392 in action for injury to, necessity for pleading .'. 391 Prosecutor payment of costs by, in special sessions 634 Protest certificate of • • 276 Provisional Kemedies joint debtor, actions to charge one not previously summoned 430 Public proceedings to be 5 Publication affidavit, of 276 notice of sale to foreclose lien , 330 Public Highway defined 199 Public Intoxication (gee also Intoxication) form of information for 717 Public Meetings preservation of peace at "' ' Public OflScer certificate of, as evidence 275 Public Policy contracts against 52 818 INDEX TO CIVIL AND CRIMINAL JUSTICES. Public Becords page proof of 278 Funishment disorderly persons : 669 special sessions, in 652 Furcliase Price goods, of, action for 79, 100 goods sold, of, payment of _•,• • j_^ •.!_!.•.!_!... ._5.. 95 Qualification {See DiSQUAlIFICATIOH) Quality warranty of 74, 89 K Railroads chattel mortgages by 146 chattel mortgage of rolling stock 140 jurisdiction of crime committed on train 582 lien for lahor on 116 residence for jurisdictional purposes 360 summons, manner of service 291, 367 service where designation revoked 368 Bape exclusion of public in cases of 5 form of information for 710 Seal Property answer of title to 301, 393 where new action to be brought 393 form of answer 496 fee of justice for view , 425 jurisdiction of justice of action involving title where plaintiff fails to file undertaking 21, 393 where title comes in question denied 358 liability of defendant's sureties on undertaking on answer of title 303 no jurisdiction as to 16 pleadings in new action on discontinuance where title brought in question.. 394 summary proceedings 334-341 title coming in question on plaintiff's own showing, dismissal of action 393 in question as to one or more causes of action, proceedings thereon 394 trespass on 244 undertaking by defendant on interposing answer of title 393 Beasonable Doubt certificate on appeal from special sessions 641 Bebuttal testimony of party, of. 272 Beceipt execution, indorsing time of receipt 417 explanation of 262 INDEX TO CIVIL AND CKIMINAL JUSTICES. 819 Receivers . . ,. . PAGE jurisdiction of actions by receiver in supplementary proceedings 300 limitation of action against aq^ summary proceedings, in, action by or against 23 Receiving Stolen Goods form of information for y ^2 Recitals conveyances, in, as evidence 278 Recognizance fee of justice for drawing, copying and certifying 325 Reconsideration ^^rdictof 614, 615 Recorder special sessions by. ggg Recoupment rigW of 300 Redemption sale foreclosing lien 331 summary proceedings 476a Refiling chattel mortgages 163-170 Reformation no jurisdiction of action of 19 Refusal plead, to, in criminal case 600 Registration motor vehicles 199 Relative disqualification of justice 12, 456 Release chattel mortgage, of 189 Relevancy evidence, of 250 Remission part of verdict and judgment for residue 413 Removal From OfElce duty of justice to deposit books and papers with clerk of town or city .... 454 justice, of • 580 Removal of Action cases from special sessions 547, 567 forms 726 to another justice of the same town or city on termination of office 454 where justice is material witness 455 removal to county court where jury cannot be obtained in justice's court .... 408 Renewal mechanic's lien 126 Rent jurisdiction of action for recovery of 16 summary proceedings 334-341 820 INDEX TO CIVIL AND CEIMINAL JUSTICES. Kepeal page acts repealed 454 schedule of laws repealed 455 sections of code of civil procedure repealed 455 Replevin action on undertakings 384 constable's return to execution as evidence 384 injury to or destruction of property as defense 384 return of execution unsatisfied or unexecuted as condition precedent 384 against whom maintained 239 possession 240 appeal, undertaking required to stay proceedings 446 claim by third person 381 affidavit in support of claim 381 constable, action against where chattel delivered to plaintiff 381 limitation of actions by third person 38l delivery to claimant on failure of plaintiff to give security 381 indemnity to constable by plaintiff 381 justification of sureties on plaintiff's bond, notice required 382 service of copy of affidavit on plaintiff with notice for security before delivery of property to plaintiff 381 substitution of sureties as party defendant in action against constable. . 381 sureties on undertakings by plaintiff, examination 381 qualifications 381 undertaking by plaintiff to indemnify constable, form, contents ar.d execution 381 costs 423 increased costs to defendant in action against public officer 423 limitation as to amount 423 when denied by both parties 423 damages, necessity for alleging facts and demanding judgment 382 to replevied chattel, right to recover 382 demand 239 execution, collection of money on same execution 3S3, 416 contents 383, 421 direction to satisfy sum of money out of property 421 levy before return day, necessity of making 421 manner of execution 421 power of constable to take chattel under 384 to issue 421 requisites 416 separate execution for collection of money 383 to whom directed 421 fees for serving summons and affidavit, and executing requisition 426 forms in 521 affidavit 522 requisition 522 notice of exception to sureties 523 notice that defendant reclaims chattel 523 aflRdavit by defendant 523 undertaking by defendant 524 afiidavit of claim by third person 524 INDEX TO CIVIL AND CKIMINAL JUSTICES. 821 Replevin — ^Continued page undertaking by plaintiff to indemnify against claim of third person .... 524 complaint. . . 493 execution 5IO jurisdiction of 15, 18, 238, 358 limitation of action for 463 plaintiff must be entitled to possession 240 pleadings 378, 382 damages to defendant, demand in answer 382 joinder of causes 378 return of chattel, demand by defendant in answer 382 requisition 289, 379 aflBdavit and undertakings 290, 378 by agent for replevin or return, conients . ; 379 when may be made 379 for requisition, contents 378 where several chattels replevied 379 breaking open building or inclosure to replevy chattel 380 chattel secured or concealed in buildings, manner of replevy 380 contents 379 custody and care of replevied chattel 380 damages against constable for wrong delivery of chattel 380 delivery of aif.davit and requisition to constable wiih summons 37.9 chattel, when to be made to defendant 382 plaintiff 382 replevied chattel 380 indorsement of requisition on affidavit. 379 entry in docket-book 453 exception to plaintiff's sureties 380 fees and necessary expenses of constable, payment before delivery of chattel 380 of justice 424 issuance with summons 378 justification of plaintiff's sureties 380 justification of sureties, allowance ■ 382 manner of 382 notice required 382 manner of executing ' 379 new undertakings where defendant excepts to sureties 380 penalty for wrong delivery of chattel by constable 382 reclamation of chattel by defendant, aff.davit and undertakings 381 justification of sureties 381 proceedings thereon 381 when notice must be served 381 reclamation of part of chattels by defendant 381 return, filing affidavit and requisition with justice 380 time for making and contents 380 service of summons and papers after replevy where defendant not found 380 on defendant after replevying property, time and manner of service 292, .380 sureties on undertakings, approval 378 taxation of constable's fees and expenses 380 822 lE^DEX TO CIVIL AND CEIMINAL JUSTICES. Replevin — Continued page time within which requisition must be executed 379 undertaking by plaintiff for replevin, execution and contents 290, 379 return of property, one or more of several chattels, where value stated in affidavit for requisition 379 trial and judgment 382-384 damages of prevailing party, fixing in verdict or judgment 382 effect on action of failure to replevy where defendant personally served. 384 failure to replevy, effect on action where defendant personally served.. 384 final judgment, what awarded by 383 judgment, contents of transcript ' 413 proceedings where chattel replevied but defendant not served and does not appear 384 summons not personally served and defendant does not appear, pro- ceedings 384 value of chattel, fixing in verdict or judgment 382 property when shall not be fixed in verdict or judgment 383 uniting two or more causes of action in same complaint 378 when action may be brought '. 378 assignee acquiring title since wrongful taking or detention 378 damages, right to recover after the judgment awarding possession to defendant 378 generally 377 second action to recover same chattel on same cause of action 378 Reply new matter in answer, when deemed controverted without denial 390 specific pleas, limitation of actions 360 Reports coroners, of 648 Requisition replevin, in 289 service of {see also Replevin) 290 Rescission contract, of 51 no jurisdiction of action of 19 sale, of 79, 99, 101 Residence parties, of 23 Resident corporations, partnership, etc., when deemed resident of town where action brought 360 Resistance mandate, execution by sheriff ' 452 to crime 673 by party about to be injured 573 by other parties 573 intervention of public officers. . . . ; 574 security to keep peace 574 police at exposed places 676 prevention and suppression of riots 577 INDEX TO CIVIL AND CKlMlNAL JUSTICES. 823 destitution page application for, notice 450 effect of order on rights of bona fide purchaser 450 reversal on appeal 450 Seturn appeal 350 form 515 from special sessions 642 constable to warrant of arrest, form for 692 form of return to criminal 727 order of arrest in civil actions 518 order summoning jury in special sessions 633 precept in summary proceedings 472 search warrant 651 form 718 search warrant papers 652 service of criminal subpoena, form of 724 service of mandates ' 292 summons, of , 3G9 form 481, 482 summons, on failure to serve 369 time for making and contents 369 venire, contents and criminal liability for false 406 warrant against disorderly persons, form for 719 warrant of attachment 371 Eeturn Day proceedings upon 293 Reversal {See Appeals) Iteward constable forbidden to accept in certain cases 455 Slots prevention and suppression of 534, 677 Sivers judicial notice of 254 s Sabbath {See Sunday) Safety Zones general highway tnaflBc law 229 Salary {see also Fees; Wages) garnishee of 321, 419 Sales ascertainment of price ^^ auction, by "' capacity of parties 8^ chattel mortgage distinguished 135 contract of sale ^® delivery 70, 95 payment of purchase price upon 95 824 INDEX TO CIVIL AND CKIMINAL JUSTICES. Sales — Continued page place, time and manner of , 95 wrong quantity of 95 installments, in 96 carrier, to 96 examination of goods on , 96 destruction of goods contracted to be sold 87 destruction of goods sold 87 effect of condition 88 essentials of 67 execution, under 316 existing and future goods 87 foreclosure of chattel mortgage 184 form of contract of 69, 86 interest and special damages 1C2 mortgaged property 175 nature of C7, 86 negotiable documents of title C2 negotiation 92 indorsement 93 ■without indorsement 9i non-negotiable documents 93 who may negotiate document 93 transfer of non-negotiable document 93 rights of person to whom negotiated 93 rights of transferee 93 warrantees on sale of document 94 ind.orser not a guarantor • 94 when negotiation not impaired by fraud, mistake or duress 94 attachment on goods 94 remedies of creditor 95 notice by constable, form of 511 offer and acceptance 67 perisliable property attached 370 registration of motor vehicles 203 remedies of buyer 81, 101 conversion 101 action for failure to deliver 82, 101 specific performance 82, 101 breach of warranty ' 82, 101 remedies of seller 77-81, 97-101 failure of buyer to accept goods 80, 97, 100 lien for purchase price 77, . 97 when to be exercised 98 after part delivery 98 when lien is lost 98 stoppage in transitu 78, 98 when goods are in transit. 98 exercise of right 99 resale of goods 78, 99 rescission of sale 79, 09, 101 action for price .79, 100 INDEX TO CIVIL AND CKIMINAL JUSTICES. 825 Seles — Continued page risk of loss 91 sale at valuation 88 sale or return 69 statute of frauds 32, 69, 86 time of performance 70 undivided share 87 variation of implied obligations 102 vendor not the owner 92 voidable title .' 92 goods already sold 92 remedies of creditors £2 •warrantees 72-76, 88, 89 express warranty defined 72, 88 implied warranty of title 73, 88 sale by description 73, 89 Implied warranty of quality 74, 89 sale by sample '. .75, 97 when title passes 71, 89, 90, 91 Saloons justice's court, right to hold in 361 Sample sale by ... i 75, 97 Satisfaction judgment presumed to be 462 Schedule laws repealed 457 School District serving summons on 291, 367 Seal as evidence of consideration 372 mandate, necessity for seal 452 on contract ; • ■ 32 on copy of record 270 sufficiency of 33 Sealed Instrument limitation of action on 463 Searches evidence, as 279 prisoners, of 561 Search Warrants aflSdavit for 650 defined • 649 depositions 650 , deposition of property seized under 652 examination of complaint and witnesses 650 forms for • '^' afiidavit • 717 warrant ' ^ ' return to warrant ' ' ^^ aflCdavit to inventory • • •• '^^8 information ''■'■ 826 INDEX TO CIYIL AND CEIMINAL JUSTICES. ■ Search Warrants — Continued page inventory of property 652 peace officer exceeding authority 653 procurement of, without probable cause 653 receipt for property seized under 652 restoration of property to person from whom taken 652 return of papers 652 search of person with dangerous weapon 653 testimony when grounds for warrant are controverted 652 taking of testimony 652 authentication of testimony 652 upon what grounds issued 649 warrant in aid of commissioner of agriculture 651 warrants, issuance of 650 form of 650 service of '. 651 breaking door or window 651 return of 651 Seasons judicial notice of 253 Secondary Evidence receipt of 259 Second Prosecution prohibited 560 Security (see also Bonds; Undertakings) to keep peace 533, 574 Seduction denial of jurisdiction 16, 359 exclusion of public in cases of 6 form of information for 709 limitation of action for 446, 464 Senator justice of peace as 12 Sentence ' conviction in special sessions 634 disorderly persons 671 suspension of 554, 615 Separation jury during criminal trial 609 Servants (see Masteb and Servant) proceedings against 675 Service notice of mechanic's lien 122 notice of sale to foreclose lien 330 order of arrest 292 precept, of, summary proceedings. 473 requisition to replevy 292 search warrant 651 subpoena, of 307 criminal cases 626 form of return of 500 criminal subpoena 724 mDEX TO CIVIL AND CRIMINAL JUSTICES. 827 Service — Continued page summons, of 291 form of proof of 481 criminal summons against corporation 628 foreclosure of mechanic's lien 324 spurious silverware or goldware 680 ■warrant against apprentice or servant 676 warrant of attachment, of 292 Services form of complaint in action for 489 Set-off costs against recovery on appeal 450 counterclaim by defendant against plaintiii's demand 412 Several Liability- joinder of persons severally liable upon same written instrument 364 effect on rights of defendant 364 Severance of Action admission of part of plaintiiT's demand 392 continuance where part of plaintiff's demand admitted 392 costs where part of plaintiff's demand admitted 392 judgment where part of plaintiff's demand admitted 392 title to real property in question as to one or more causes 394 Shade Trees injury to 224 Sheriff damages for failure to discharge debtor imprisoned under execution 420 execution of mandate upon resistance to constable 452 limitation of action against 463, 464 penalty for failing to discharge debtor imprisoned under execution on re- ceiving afi:davit 420 Sickness juror, during criminal trial 610 Signals approach of motor vehicles 193, 207 general highway traffic law 229 Signature defined 682 Silverware proceedings as to spurious C80, 681 Slander denial of jurisdiction 16, 359 limitation of action for 464 Special Proceedings {see also Summaby Pboceedings ; Disobdebl7 Per- sons; Bastabds; Vageants; Strays) fee of justice for precept or other mandate to commence 425 parties to criminal 879 Special Property when person having special property in stray deemed owner 440 Special Sessions Albany, in ^70 jurisdiction ^' " exclusive jurisdiction °' " 828 INDEX TO OIVIL AND CEIMINAL JUSTICES. Special Sessions — Continued paob recognizances returnable where 571 when persons held for trial 571 oflScers to attend 571 clerk 571- court, when and where held 571 acquittal 552 appeals from 640 Brooklyn, in ; 568 by whom held 569 jurisdiction of 546, 565 exclusive jurisdiction 567 removing case to grand jury 567 New York, in 557, 569 jurisdiction 569 exclusive jurisdiction 569 seal : . 570 proceedings in 638 Oswego, in 555 probation officers 555 punishment upon conviction 552 recorder, by , 569 removal of cases from 547 suspension of sentence 554 trials in 631 reading charge to defendant. 549, 632 pleas 549, 632 trial of issues 632 jury trial 550, 632 drawing jury 632, 633 summoning jury 632', 633 jury lists ..;..... 632 return to order for summoning jury 633 depositing ballots in box ; 633 challenges .-. 633 talesmen 633 punishing officer for not returning list 633 how jury constituted 633 oath to jury ' 633 how conducted 634 verdict 634 disagreement 634 judgment on conviction 634 fine 634 imprisonment. 634 direction of restitution 634 discharge on acquittal , . . . 634 order that prosecutor pay costs 634 judgment against prosecutor for costs 635 certificate of conviction 553^ 635 when filed 635 as evidence 635 INDEX TO CiyiL AND'CKIMmAL JUSTICES. 829 Special Sessions — Continued page execution of judgment 635 payment of fine 636 how applied 636 failure to pay fine to siipervisor . ..'.'. 636 eubpoeha for witnesses. ...'...'.'.. '.'.'..'.'.'.'. 556, 636 punishing jurors for non-attendance 556, 636 no fees to jurors or witnesses 636 preliminary examination dispensed with 636 comnlitmerit 636 form of , 636 by whom executed 637 bail 556, 637 form of , 637 forfeiture of 637 remittance of forfeiture ...'...'. 637 fees of justice 556, 637 fees of constable 556, 638 Special Verdict criminal cases, in '. 613 Specific Performance no jurisdiction of 19 Speed , general highway traffic law 229 motor vehicles 192, 209 Spoliation jurisdiction of action of 16 Spurious Silverware or Goldware proceedings as to 680 issuance of summons 680 service of summons ■. 680 investigation of charge 680 discharge of defendant • ■ • t ■ ^^^ bond of manufacturer or dealer 681 action of bond ■• . . . 681 Squatters summary proceedings against 471 State ' jj- jurisdiction, denial generally ■■■■•■ 359 in certain cases 359 of action by people for conversion or misappropriation 359 for fine or penalty /■■■.- 359 to recover premium under workman's compensation law 359 levy on negotiable bond .■■■■■■■■■■ 418 party to action. 1" verification of pleadings in action by or against.....; 390 State Comptroller proof of records of .■.....;.............,....... 280 Statement ,; by accused, on preliminary examination ..;;................... ..... ' 593 Statistics .r.A«^i criminal '- .v.^ : . .■^^^^^79 830 INDEX TO CIVIL AND CKIMINAL JUSTICES. statute of Frauds (iSfee Fbauds, Statute of) Statute of Limitations paoe absence from state 460 accounts, accrual of action on 464 acknowledgment of obligation 465 action upon sealed instrument 463 actions arising out of state 459 administrator, action against 463 alien, effect of war on : 462 application of civil practice act 459 arbitration 461 assault 464 attempt to commence action 459 avoidance of apparent payment 462 bank, action against 463 battery 464 bill, action on 464 bill or note issued as money 465 breach of covenant 463 thattel, action to recover 463 common informer, penalty given to 464 constable, action against , 463 contract, action on ; 463 coroner, action against 463, 464 counterclaim 465 covenant, breach of '. 463 criminal conversation 464 death of claimant 460 death of person liable 460 death without the state 459 defense 465 demand necessary 459 direction, action against 463 disabilities, excluded 465 imprisonment 465 infants 465 insanity 465 disability of parties 462 discontinuance of action 461 effect of pending action involving decedent's estate 461 escape of prisoner 464 establishing will 463 executor, action against ' 463 false imprisonment • 464 forfeiture ._ 463, 464 fraud 463 how objection taken 462 injury to property 463 judgment, action on '. 402, 463 liability created by statute 463 INDEX TO CIVIL AND CRIMINAL JUSTICES. 831 statute of Limitations — Continued pa<3& libel 404 lost will 463 malicious prosecution 464 malpractice 464 misconduct of deputy or agent 459 mode of computing period 459 negligence, action for 404 new promise 465 non-resident, action against 464 note, action on 465 officers, actions against 463, 464 one year, actions to be commended within 464 penalty. 463, 464 penalty given to common informer 464 period of limitations generally 360 pleading statute of limitation, necessity for 360 personal injury 463 principal, action by 459 receiver, action against 463 redemption from mortgage 462 replevin 463 reversal of judgment 460 reversal of judgment or termination of action 461 revocation of arbitration 461 satisfaction of judgment, when presumed 462 sealed instrument, action upon 463 seduction 464 sheriff, action against 463, 464 six years, actions to be commenced within .' 463 slander 464 stay of arbitration. 461 stay of commencement of action 461 stockholder, action against 403 strays, action to recover animal seized or damages for seizure 438 ten years, actions to be commenced within 464 termination of action 461 three years, actions to be commenced within 463 trustee, action against 463 twenty years, actions to be commenced within 463 two years, actions to be commenced within 464 war, effect of 462 when action deemed to be commenced 459 Statutes indorsement upon summons in action to recover penalty of forfeiture under. . 367 evidence of 2'" judicial notice of 253 private statute, how pleaded 391 proof of 278 colonial - 278 foreign 280 832 Il^DEX TO CIVIL AND CKIMINAL JUSTICES.. Stay of Proceedings page on appeal, undertaking required. ■ 447 strays, appeal by claimant from final. order 437 to permit appeal from order upon demand for possession 437 summary proceedings, in . .-. ". . . . 476 Stenographer use of, on preliminary examinations. . ..... .^ ..........'....,. ' 597 Stipulations . . - judgment entered on — ■.■... ... .V;^ . . 411 Stockholders juror, right of stockholder to act where corporation is party. ,.'. . . 408 limitation of action against ■ 463 Stock of Goods chattel mortgage on - 170 Strays • action or seizure commenced by one as excluding action or seizure by others. 439 ugent, right to act for principal 440 answer to petition ■.........> i 433 appeals .^ 344, 437 by claimant from final order, stay of proceedings as condition to appeal - 437 undertaking to procure stay of proceedings r. .......:.. .... "■ 437 final order, manner of taking. ...... ......... ' 437 time within which to be taken. ............... .^ .' ■ ' 437 order determining right to possession - 437 on claim for surplus, dismissal on proof of payment of surplus. .... - 435 on demand for possession, stay of proceedings as prerequisite. . . ... 437 upon claim for surplus ' 435 proceedings upon afF.rmance of final order on ' 438 stay of proceedings as prerequisite to appeal from order on demand for ■ possession 437 to appeal from order on demand for possession, modifying or • vacating only 437 appearance by owner or person having interest in animal, right to 433 costs on decision in favor of person answering 435 damages 438 entire where several animals trespassing 438 malicious seizure 435 to petitioner, how determined where several animals trespassing 438 private person, fixing by jury or justice 432 wilfully setting animal at large 436 decision in favor of person answering petition, proceedings upon 435 exclusive action, action first begun as 439 execution on decision in favor of person answering 435 failure of private person to prosecute, right of officer 439. fees on sale 434 forms in proceedings against 525 petition for seizure 525 precept 525 final order 526 warrant to sell ; . ; 526 jurisdiction. ■. 27 liability of person wilfully setting animal at large 436 INDEX TO CIVIL AND CEIMINAL JUSTICES. 833 strays — Continued page limitation of action to recover animal seized 438 damages for seizure 438 notice of sale 433 owner of animal, right to maintain action to recover possession or value or damages 438 party to action, right to recover for seizure 438 penalty, actions to recover where total penalty exceeds justice's jurisdiction . 432 amount of penalties 432 penalty for wilfully setting animal at large 436 petition 342, 432 possession of animal , _ 436, 437 custody of animal seized : 432 payment by owner where entitled to possession without payment of fees and costs 436 where seized by private person 432 delivery pending appeal by claimant from final order 437 to claimant on filing order staying proceedings on appeal 437 demand of possession before trial, proceedings thereon 344, 435 order upon demand for 437 , right of owner where animal wilfully set at large by third person 436 seizure and sale, before trial, when owner entitled to 435 when owner entitled to after final order and before sale 436 without payment of fees and costs ; . . . . 436 precept '. 343, 432, 433 by whom served 433 manner of service 433 posting 433 proof of service 433 service where person cannot be found 433 to be issued upon petition 432 private person, right to seize 432 proceedings against different owners of trespassing animals 438 upon affirmance of final order on appeal 438 recovery by petitioner or ofiicer from person wilfully setting animal at large 436 remedies for 342, 432 return of animal on decision in favor of person answering 435 right of officer on failure of private person to prosecute 439 sale and proceeds 433-435 disposition of proceeds 433 notice of sale 433 proceeds of sale, application of • • 434 public auction, selling at 433 surplus, adjournment of hearing on claim to 434 disposition of 434 disposition when no claim made within year 434 filing claim to 434 hearing on claim to 434 limitation on filing claim 434, 435 order by county judge extending time for payment after appeal taken 435 surplus, where there are different owners, disposition of 439 53 834 INDEX TO CIVIL AND CKIMINAL JUSTICES. Strays — Continued PAoB warrant for sale 433 when to be directed ; 433 separate proceedings against different owners, when may be maintained. .... 439 special property, person having as owner 440 street commissioner of village, right and duty to seize strays 432 superintendent of highways, right and duty to seize strays 432 trial, proceedings on 433 undertaking on appeal by claimant from final order to procure stay 437 person entitled to benefit of undertakings given on appeal from final order 438 verification of petition 432 warrant on decision in favor of person answering 435 Street Bailways general highway traflSc law 231 Subpoena coroner's inquest, on 646 criminal cases, in 625 subpoena defined 625 issuance by magistrate ". .025, 680 general regulations concerning subpoenas 625 form of subpoena 625 requirement to produce papers, etc , 626 service of subpoena 626 subpoenaing witness in another county 626 disobedience to subpoena C26 punishment of witness 626 mileage fees for service of subpoena 627 form of 499 bastardy proceeding 731 criminal 724 defaulting witness, liability for damages to party subpoenaing 400 fees 424-426 issuance, fee of justice 424, 425 service nor made by constable 428 serving subpoena 426 subpoenaing witness in special proceedings 426 tender of fees to witness on serving 398 issuance of 3C7, 398 attendance before another justice 398 jurisdiction to issue 14 special sessions, in fi5C^ 636 service of 307, 398, 428 return of constable 398 Subpoena Duces Tecum. criminal cases, in 626 form of 499 form of criminal 724 issuance of , 307, 398, 400 production of papers by 400, 468 relief from, on application by witness 400 time for service 400 INDEX TO CIVIL AND CKIMINAL JUSTICES. 835 Subrogation paqb no jurisdiction of action of 19 Subscriptions consideration of 38 Summary Proceedings action by or against receiver 23 adjournments 475 answer 474 appeals 476b article 83 of civil practice act governs proceeding in justice's court 359 costs 341 defenses or counterclaims 340 effect of appeal limited in certain cases 476b stay of warrant on appeal 476c award of restitution on appeal 476c final order upon trial 340, 475 allowance of costs 475 forms 526 notice to pay rent 526 petition for removal for failure to pay rent 526 precept 527 answer of tennant 527 final order 528 warrant of dispossession 528 holding over after sale 337 issues upon forcible entry or detainer 474 jurisdiction of 16, 338 no jurisdiction in certain cities of the second class 359 notice to defendant of default 337 petition 339, 471 to whom presented 471 who may make petition 339, 471 verification 471 contents 471 statement as to notice to quit 471 bawdy-house petition 472 petitioner 339 precept , 339, 472 when returnable 472 in New York City 473 service of 473 duty of person to whom precept is delivered 473 service on landlord of bawdy-house 473 proof of service of 473 proceeding on return of precept 339 recovery of possession of real estate by 468-476d redemption by lessee 476a creditor of lessee 476a liability of person redeeming 476d squatters, removal of .• 337 stay of proceedings 476, 476d transfer from New York district court 474 836 INDEX TO CIVIL AND CEIMIJSTAL JUSTICES. Summary Proceedings — Continued - jpaqe trial of issues , • 474 jury 474 warrant to dispossess 475 execution of warrant 476 when warrant cancels lease • ■ • • 476 when and how stayed • ■ • 476 payraent of rent due 476 undertaking for payment of rent 476 disposition of undertaking 476 when tenant may he removed 468 tenant holding over term 469 default in payment of rent 470 failure to pay taxes or assessments 470 insolvency of tenant 470 place used as bawdy-house j . 470 holding over after sale of teiiant's interest 470 squatters 471 forcible entry or detainer 47i Summons amendment of '. 286 criminal, against corporation 628 issuance of 628 form of , 628 service of ' . 628 criminal cases, in 533 form of 1 . 539 designation of person to receive. 369 absence from United States '. 369 consent or person designated : 369 contents find manner of execution 369 filing and recording 369 revocation 369 fees 426 justice, of 424 mileage to constable in serving 420 serving 426 suBomons and afifidavit, and executing requisition in replevin 426 executing order of arrest 426 levying warrant of attachment 426 foreclosure of mechanic's lien 324 forms of 481 forms of criminal 725 issuance of 366 complaint, accompanying summons 366 contents 306 entry of time of issuance in docket-book 453 fictitious name, use where defendant's name unknown 368 holiday, right to make returnable on 306 penalty or forfeiture, indorsement on summons in action for 367 return, date of 366 where accompanied ly order of arrest 366 INDEX TO CIVIL J^B CBIMINAL JUSTICES. 83T .gmnmons — Continued pagb second or third summons, effeqt of service.-. . . ;.; 308 . time within which previous summons may be, returned 308 second summons, time within which to issue 368 when must be issued 368 succeeding summons, "time within which to issue .;. ; 368 third summons, time within which to issue 368 ^ to whom directed 360 unknown defendant, amending proceedings to insert true or full name . . 368 manner of d^signating ,.,...,, 368 order of arrest to accompany 286 proceedings as to spurious silverware or ggldwa,re 680 proceedings upon return day 293 return , ,.,,,,...,, , .292, 309 failure to serve, on s 369 form and contents. 309 time for making 369 when to be returnable ,...,.. 306 requisition to replevy, to accompany ' 289 . service of , , 201, 367, 368 city, action against 367 , complaint with summons.. . 306 , corporations other than domestic municipal corporation 367 revocation of designation of person on whom to serve 368 where designated persons dead or non-resident or cannot be found. . 368 designated person 368 domestic corporation 367 municipal corporation 367 express company 368 foreign corporations 367 in action against county ■ 367 insurance company 368 person or partnership doing business in county other than that of resi- dence ; 367 personal service, how made 366 railroad corporation where oflScers do not reside in county 387 person designated on whom service to be made 307 replevy of chattel, after 380 school district, action against 307 telegraph company 368 time ■ ■ • 366 attachment, where warrant granted in action 375 for service where chattel replevied , 380 where accompanied with order of arrest 366 town, action against 367 village, action against •' 367 warrant of attachment to accompany _. 2S7, 374 when action deemed to be commenced 366, 460 vagrant child, for, form for 734 Sunday contract for work on * ' entry of judgment on proceedings on 838 INDEX TO CIVIL AJS'D CEIMIl^AL JUSTICES. Superintendent of Poor page appearance in action relating to strays 439 strays, prosecuting action on failure of private person to prosecute 439 surplus from sale of straying animals, payment for benefit of poor 434 Supervisors fines imposed for contempt, when payable to supervisor 362 Supplementary Proceedings jurisdiction of action by receiver 360 Suppression riots, of 534, 577 Sureties action on surety bond, jurisdiction 358 Surety Bond jurisdiction of action on 15 Surety Companies equivalent to two sureties on bonds or undertakings 442 execution of bonds or undertakings by, manner of 442 justification by 442 Surveyor evidence of 274 Suspension sentence, of 554, 615 judgment in criminal cases 615 Swearing (See Oath) T Talesmen summoning in special sessions 633 Tavernkeeper disqualification of 12, 360 Taxation replevy of property taken for collection of tax, right to 377 Taxi-cabs stands of 229 Telegrams receipt of 261 Telegraph Companies residence for jurisdictional purpose 360 summons, manner of service 291, 368 Tenant (see Landlord and Tknant) summary proceedings to remove 468-476d Tender witnesses' fees on serving subpoena 398 Term justice of peace 3 Time excluding Sundays or holiday in computation 452 execution, indorsing time of receipt 417 time within which may be renewed 417 extension of time to appeal by heir, etc., from judgment against deceased party. 445 INDEX TO CIVIL AND CRIMINAL JUSTICES. 839 Time — Continued page method of computation 452 notice of application for 'commissions to examine witnesses 400 replevin, time within which requisition must be executed 379 sale of persoiial property under execution, time for posting notice 417 security for costs, time within which to be given after demand 422 summons, time for service 366 within which previous summons may be returned for purpose of issuing new. 368 to issue second or third summons 308 summons, when returnable 368 Title answer, of ■ 15, 301 implied warranty of 73, 88 insurance companies, searches of, as evidence 279 short title 358 Tolls motor vehicles 216a Torts defined 234 conversion 235 defined 235 intention 235 act of agent 235 demand 236 damages 238 deceit 241 fraud 242 suppression of truth as 243 proof of fraud 243 jurisdiction in actions of 14, 18 negligence 248 definition 248 presumption of 248 contributory negligence 249 replevin; 238-240 jurisdiction of justice 23S against whom maintained 239 demand 239 plaintiff must be entitled to possession 240 trespass on lands 244 who may maintain action 244 what constitutes ; 240 liability for trespass 240 by animals 247 Town action by or against officer of 23 execution against wages of employees 419 jurisdiction of actions by town oificer in official capacity 360 juror, right of taxpayer to sit in action by or against 407 liability of 221 proof of records of 2*"' service of summons on ^■^■'' ''°' 840, INDEX to CIVlirMti CKIMINAL JUSTICES: Town Board page lease of court room for justice of peace-. 5 justice as member of .' 6 Town Clerk books and papers of justice of the peace, proceedings to compel delivery to. . 454 demand for books and papers on death of justice , 454 deposit of books and papers of justice with, on removal from oEce, or from town or city 454 duty to furnish justice with docliet-book 453 execution, right to issue on death of justice , 454 proof of records of 27^ transcript of judgment, right to issue on death of justice 454 Town Meeting election of justices of peace 3 Traction Engine use of on highways 219' Traffic general highway traffic law 226 Train jurisdiction of crime' committed on : ~ 582 Tramp defined ......; 664 Transcript (see Judgment)' docket-book, of, as evidence 279 judgment foreclosing mechanic's lien 325 judgment, of, form of 529 Transfer (see oJsp Assignment) . mortgaged property , 175 Transfer of Action costs, including fees before transfer 455 expiration of justice's office or removal from town 454 justice material witness, transfer to another justice 455 proceedings upon transfer 455 Treason evidence on trial for 607 Treble Damages , recovery of 18 Trees along highway 223 fallen, to be removed 225 injury to 224 penalty for falling 225 chattel mortgage of 140 Trespass by animals 247, 438 ■ form of complaint for 493 liability for 246 . what constitutes 246 who may maintain actions ;;.:;.;;: 244 INDEX TO CIVIL AIsTD CKIMINAL JUSTICES. 841 Trial in general . faqe compromise, effect or refusal to accept 4..-1 judgment on written acceptance 404 right of defendant to offer and acceptance. 404 entry of names of witnesses in docket-book 453 time in docket-book 453 failure of defendant to appear, effect 404 fee of justice for hearing plaintiff's evidence on default of defendant .... 424 issue of fact, fee of justice where defendant appears 424 when justice may try 404 one hour after time as specified in return, justice to wait 404 proceedings on trial, entry in docket-book 453 removal of action to county court where jury cannot be obtained in justice's court 407 when plaintiff must prove case 404 adjournments 395, 306 admissibility of testimony of witness examined on application for adjournment 3D6 application of plaintiff on return of summons 395 arrest of defendant, right of justice to adjourn 395 attendance of witness, warrant of attachment to compel 396 commission to take testimony on application ty plainli.T 430 conditions that justice may impose on application by derendant 390 custody of arrested defendant during adjournment .^ 396 defendant, application on joinder of issue 395 applying for on joinder of issue, requirement 395 discharge from arrest on adjournment by consent of parties or appli- cation of plaintiff 396 examination of non-resident plaintiff's witness as condition to granting 396 fee of justice 424 for longer period than ninety days, by consent of parties 096 justice may adjourn on own motion, when 395 length of adjournment , 395 on application by defendant 395 ninety days, adjournment for longer period 396 release of arrested defendant during adjournment, undertaking 396 showing that may be acquired of plaintiff to procure on return of summons 395 subsequent adjournment 396 undertaking ty defendant on adjournment on his application 395 on subsequent adjournment 306 when required by defendant on application for 395 where defendant arrested , 396 witness refusing to testify, etc 409 ' appearance of parties 364 attorney, who may act as 364 authority of attorney, how approved 364 in person or by attorney 364 jury trials in general, adjournment where jury trial demanded 405 defaulting juror, attachment of 406 punishment *"* 842 INDEX TO CIVIL AND CRIMINAL JUSTICES. Trial — Continued pagb demand for jury trial, necessity and time for 404, 405 discharge of jury, on disagreement 410 failure to appear as contempt 406 fees of constable for notifying jurors, prepayment 405 jurors and constables, effect of failure to prepay 405 prepayment 405 justice hearing matter 425 fine that may te imposed on defaulting juror 406 hearing or proof in public 408 judgment, rendition ty justice on consent of parties after discharge. 410 new venire, when to be issued 407 where jury discharged on failure to agree 410 remission of fine imposed on defaulting juror 406 venire contents 406 return and criminal liability for false return 406 time for and manner of service 406 formation of jury ballots, how prepared 406 preparing and depositing in box 405 challenge, how tried ■. 408 in action by or against municipality, taxpayer as juror 407 review of determination 408 to the favor 408 depositing ballots in box 406 drawing jurors 405, 406 panel 405 employee of party subject to challenge 408 fee to constable in charge of jury during deliberations 426 juror relative of party, right of adverse party to raise objection after judgment 408 when objection may be raised 408 jury list, drawing jurors from 405 number of jurors 406 oath of juror 310, 408 peremptory challenges 407 qualifications, raising objections by challenge 408 relative of party, disqualification as juror 408 review of determination of challenge 408 stoelvholder or employee of corporation party subject to challenge. 408 what constitutes jury 406 verdict, custody of jury during determination 410 death of party before verdict, validity 410 entry in docket-book 410 fee of justice for receiving and entering 424, 425 non-suit after c?iuse committed to jury, right of plaintiff to submit to 410 oath of constable in charge of jury 410 rendition, calling plaintiff. 410 manner 410 withdrawal, right of plaintiff to withdraw action after cause sub- mitted to jury 410 INDEX TO CIVIL AND CKIMINAL JUSTICES. 843 Trial — Continued page minutes of 314 new trial directed on appeal 353 opening of case 310 order of 606 place of trail 360 absconding defendant, action against 360 before justice of town or city wherein one of parties resides or in adjoining town or city 360 corporation or partnership defendant, when deemed resident of town. . . 300 defendant non-resident of county, action against 300 non-resident of county, action by 360 town adjoining incorporated city, necessity that plaintiff be resident of town 360 where offense committed or property found 360 proceedings against strays 373 security to keep peace 575 separate trials of several defendants C06 special sessions, in 632 summary proceedings 340, 475 without jury ; 308 'X'rick contract procured by 40 Tricycles use of highways 219 Trover (See CONVEKSION; XOBTS) Trust Companies deposit of funds by principal for protection of sureties 442 Trustee action by or against 23 arrest in actions for funds or property misapplied 370 beneficiary, necessity for joining in actions by 363 counterclaims, demand against beneficiary as 299, 388 or demand belonging to beneficiary 388 jurisdiction of actions by 360 Trusts executions against income and profits 419 Turning vehicles, of 227 Turning Corners law of road ^^^ V Undertakings in general, acknowledgment additional security, when may be required 442 affidavit of sureties as to residence and property 441 amendment of defects approval by justice j change of parties, effect on undertakings ; 443 844 INDEX TO OIVIL ASD CEIMINAL JUSTICES. trnderwritings — ^^Continued pa«b examination or re-examination of sureties 442 execution by fidelity or surety company 442 manner of 441 fee of justice for drawing 424 copying, certifying and filing 425 filing with justice 441 form as to liability where executed by two or more persons 441 joint and several where executed by two or more persons 441 justification by fidelity or surety company 442 new sureties, enforcing order for 442 when may be required 442 party joining with sureties in execution, necessity 442 requisites as to form '. 441 sureties, number of • 442 required, number 441 surety or fidelity company as equivalent to two sureties 442 variance from statutory form, effect 441 action on lost negotiable paper 270 actions on 3S4, 442 actions on by party for whose benefit bond given to publiv: officer .... 18, 442 permission to prosecute action on undertaking given to people or public officer 442 replevin, constable's return of execution as evidence 384 injury or destruction of property as defense 384 return of execution unsatisfied or unexecuted as condition precedent 384 adjournment 395, 396 arrested defendant, application by 396 discharge of arrested defendant 396 of trial on application of defendant 395 subsequent adjournment 396 undertaking by defendant 395 answer of title 393 discontinuance of action on delivery of undertakings to justice 393 form and contents 393 liability of sureties 393 security for costs 422 appeal, on ' 347, 440, 447 new trial on appeal 447 stay of proceedings 446 service of 348 appearance of witnesses 545 bastardy proceedings 055, 650, 657 disorderly person, of 669 forfeiture of undertaking 669 forms, answer of title 496 adjournment 497 new trial demanded 514 criminal cases , 730 arrest in civil action 617 attachment 610 defendant's undertaking 620 INDEX TO CIVIL AN3 CRIMINAL JUSTICES. 845 t7iiderwritingS' — Continued page! for delivery to third person... ,.,... 521 criminal proceedinga 097-702 replevin. , 522; 524 security to keep peace. 088 justice of peace, of 4 particular actions and proceedings - replevin 290 defendant's undertaking on reclaiming chattels 381 examination of sureties of plaintiffs, undertaking in replevin against claim of third person 381 exception to plaintiff's sureties 380 justification of plaintiff's sureties 383 sureties 382 in replevin action 382 new undertaking where defendant excepts to plaintiff's sureties .... 380 plaintiff's undertaking to constalile against claim of third person.. 381 undertaking .l;y plaiatiff. for replevin .execution and contents 379 required to procure replevy 378 strays, order staying proceedings on appeal hy claimant from final order 437 persons entitled to benefit of undertaking given to stay proceedings on appeal .. 438 proceedings, as to spurious silverware or goldware 681 ' provisional remedies arrest, condition to granting order 370 delivery of copy on executing, order 371 attachment, bond l;y third person claiming title 375 delivery to justice of bond or undertaking received by constable.. 376 form and contents. 374 . redelivery, form and contents of undertakings by defendant 375 to keep peace 533 stay of summary proceedinga , 476a Unilateral Contracts bilateral contracts distinguished .,.. ; 34 Unknown Defendant amendment of proceedings to designate true or .full name 368 summons, manner of designating in 368 /Unknown Parties summons, amendment of proceedings to show true or full name of unknown defendant 368 manner of designating defendant 368 Usage aid ia interpretation of contracts 44 Usury chattel mortgages, in 149 V Vacancies office of justice of peace 3 Vagrants arrest of disguised persons • ^^^ aid to officer • ^^^' ^^7 846 INDEX TO CIVIL AND CKIMINAL JUSTICES. Vagrants — Continued page commitment of 666 conviction of 665 form of certificate of conviction 665 defined 663 examination as to residence 665 form of commitment for 721 form of information against 715 form of warrant for 721 proceedings before magistrate 664 summary punishment of professional criminals 667 taking before magistrate 665 tramp defined 064 Variance amendment of pleading to conform to proof 391 failure of proof distinguished from variance 392 immaterial, amendment 392 eflfect of 392 when material 391 Venire entry in docket-book 453 fees for serving, prepayment 405 of justice 424 form of in civil cases 5C2, 503 form of in criminal cases 727 issuance of 309 mileage to constable for executing 426 return, contents and criminal liability for false return 406 service of 309 time for and manner of service 406 Verdict coroner's jury 646 criminal cases, in 612 necessary that all appear 613 presence of defendant 613 manner of taking verdict 613 verdict may be general or special 613 general verdict 613 special verdict 613 how rendered 013, 614 how brought to argument 614 judgment thereon 614 defective special verdict 614 degrees of offense 614 indictment against several 614 reconsideration of verdict G14, 015 judgment on informal verdict 615 polling the jury 615 special sessions, in 634 entry in docket 313 form of 506 jury, of , 311 INDEX TO CIVIL AND CKIMINAL JUSTICES. 847 Verification page account delivered on demand of adverse party 391 action on written instrument for payment of money, verification by attorney or agent 390 agent or attorney as to account or bill of particulars 391 agents, when may make 390 answer of title, necessity for verification 393 when required 389 attorney, when may make 390 bill of particulars 391 by whom made 390 complaint, when may be verified 389 defective verification, remedy for 390 domestic corporation 390 effect of verified allegations or denials 300 foreign corporation 390 verification by attorney or agent 390 form of aJBdavit 390 stating allegations or denials in verified pleadings 390 how made 390 joint debtors, complaint in action to charge those not previously served 388 material allegations of pleading within knowledge of agent or attorney 390 non-resident of county 390 where attorney resides, verification by attorney or agent 390 non-resident of state, verification by attornej or agent 390 notice of mechanic's lien 118, 120 notice of sale to foreclose lien 330 people as party 390 petition for leave to sue or defend as poor person 365 pleadings, of 302 form of 528 public officer in behalf of people 390 remedy for defective 390 want of verification, remedy 390 Verified Complaint return of service of 292 service of 292 Vessel jurisdiction of crime committed on 582 proof of conveyance of 283 View in criminal cases ""^ fee of justice for view of real property 425 Villages jurisdiction of justice of ^3 place of holding justice's court 361 service of summons on 291, 367 proof of records of 280 Voluntary Appearance jurisdiction by -.tttt-i-. 848 INDEX TO Ciyit JU^DtaEIMIFAL JUSTICES, W Wages ■ ' PAGE executions against wages, how and wheii issued. 321, 419 workman, of .■;.;.■.■......:;; 62 Waiver examination, of ..::..... 642 War effect of on limitation of action '. ; 460 judicial notice of . .' ■ ■ • 253 Warning approach of motor vehicle 193 Warranties definition , 72, 88 title . 73, 88 sale by description 73, 89 quality . , 74, 89 sale ty sample 75, 97 remedies for breach of 82, 101 form of complaint for breach of • • • • ■ f ^^^ Warrants (gee also Seabch Waeeants) , apprentice or servant, against- 676 , service of ' > 676 arrest, of, by coroner i 647 arrest, of, forms for , 691 arrest under 588, 589 arrest without 54fl, 589, 596 arrest of fugitive, form for , •■•••. • 693 attachment, of (see Attachment) 287 forms , 519 attachment of defaulting witness, forms as to 500 bastardy proceedings, in 654, 655 form 731 compelling parent to support child. 674 contempt, form for 515 defaulting juror, against, form of •. 505 disorderly persons, against .'. 668 form 718 dispossession in summary proceedings 439 form 528 execution of criminal 540 execution of warrant , 586 fee for serving in special proceedings 426 of justice in case where fee not otherwise prescribed 425 forms in criminal proceedings 719-722 issuance of and arrest under 584-587 issuance of, by magistrate 538 form 526 search, form of. 717 security to keep peace 533, 575 form 688 summary proceedings 475 INDEX TO CIVIL AND CKIMINAL JUSTICES. 849 Weather Conditions page evidence of ; 277 Wife {see Husband and Wife) evidence of .'. 272, 273 Will limitation of action to establish 463 Window breaking, to arrest escaped prisoner , 590 breaking, to effect arrest 589 breaking, to serve search warrant 651 Withdrawal plea, of 600 right of plaintiff to withdraw action after cause submitted to jury 256 Witnesses compelling attendance of 307 criminal cases, in 625 subpoena defined •• • • • •, 625 issuance by magistrate • 625 general regulations concerning subpoenas 625 form of subpoena 625 requirement to produce papers, etc , 626 service of subpoena 626 undertaking for appearance .545, 596, 698 preliminary examination 593 defendant ; 607 subpoenaing witnesses in another country 626 disobedience to subpoena 626 punishment of witness C26 mileage fees for service of subpoena 627 conditional, on preliminary examination 596 coroner's inquest, on 646 competency 409 admissibility of proof on question 409 how determined 409 interested 272 juror as a. 609 nurses • • • ■ 273 persons jointly indicted 607 physicians 273 defaulting witness 399 adjournment of trial, warrant of attachment to compel attendance 396 . attachment against defaulting witness, fees of justice and constable, ly whom paid •' 307, 399 how executed 399 power of constable while in adjoining county 399 proof on which to issue 398 service in adjoining county 26, 399 arrest and fining after judgment 399 entry of minute of conviction and fine in docket-book 399 execution for fines on conviction 399 54 850 INDEX TO CIVIL AND CEIMINAL JUSTICES. Witnesses — Continued page fees of justice and constable on attachment against defaulting witD'jss, by whom paid 399 fine against defaulting witness, proceedings where not imposed during trial 399 delinquent witness, disposition of 399 fine for refusing to attend or testify 399 how imposed 399 imprisonment for failure to pay fines 399 liability for damages to party subpoenaing 400 minute of conviction as judgment 399 forms, as to 500, 501 delinquent and recusant witnesses, adjournment of trial where delinquent committed 409 commitment for refusal to be sworn or answer or produce paper 409 fee of justice for drawing, etc., minute or record of conviction 425 execution upon conviction 425 period of confinement of delinquent or recusant witness 409 refusal to be sworn or answer proper questions, punishment 409 produce book or paper subpoenaed, punishment 409 warrant committing delinquent or recusant witness, contents 14, 409 deposition, power of commissioners to compel attendance of witnesses 402 entry of names in docket-book 453 examination of 408, 409 afiirmation, form of 408 mode of swearing , 408 oaths 310, 408 administering and form 408 form of affirmation 408, 504 manner of administering 408 other modes authorized 408 preliminary examination as to binding oath 409 of infant or person of weak intellect 409 swearing non-christian 409 fees of, each day's actual attendance 427 tendering on service of subpoena 398 criminal cases 607 special sessions 636 personal privileges of 274 self incrimination 561 special sessions 556 attendance in special sessions 556 bringing prisoners into court by habeas corpus 561 subpoena 636 search warrant proceedings ." 650 separation of, at preliminary examination 594 subscribing. 270 surveyors 274 testimony as to record of foreign court 281 Women arrest, right to issue order for in action 370 execution against person, right to issue 420 exempt property of 467 INDEX TO CIVIL AND CRIMINAL JUSTICES. 851 Work PAGE contracts for 58-66 Workmen's Compensation Law action on insurance premiums 16 jurisdiction of actions by state for premiums due insurance funds 35S Written Contracts {see also Contbactb) oral contracts distinguished 31 Wrongs {See TOBTS) PENAL LAW TABLE L TABI.E I, 8H0WIKO THE PROVISIONS OF THE REVISED STATUTES. SESSION LAWS AND CODE OF CIVIL PROCEDURE WHICH ARE CONSOLI- DATED IN THE PENAL LAW. Penal Law Section. R. 8., Ft. 1, Ch. 20, Tit. 8. J 1. . .• 833 2 83i 8 (pt.) 991 8 (pt.) 992 9 994 14, 15 995 16, 17 993 21, subd. 2 996 24 1386 25, 32 1383 33 1384 38 1385 L. 1867, Ch. 375, § 4 187 L. 1867, Ch. 375, § 10, H 2 185 L. 1874, Ch. 209, §§ 2, 3, na amended by L. 1876, Ch. 108, £§ 1, 2 2196 L. 1875, Ch. 97, § 1 183 L. 1875, Ch. 97, § 2, as amended by L. 1875, Ch. 246, § 1 184 L. 1875, Ch. 205 1147 L. 1875, Ch. 240, § 1 184 L. 187G, Ch. 108, § 1 2196 L. 1881, Ch. 419, §§ 1, 2 1310 L. 1885, Ch. 490, § 1, as amended by L. 1891, Ch. 115, 5 1 2370 L. 1885, Ch. 490, § 2 2370 L. 1885, Ch. 490, §§ 4, 5 2371 L. 1885, Ch. 490, § 7 2372 L. 1887, Ch. 711, § 9, pt 2195 L. 1891, Ch. 115, § 1 2370 L. 1893, Ch. 296 1082 L. 1894, Ch. 259, § 1 2240 L. 1894, Ch. 265 1030 L. 1895, Cb. 823, S 1, as Penal Law Section, amended by L. 1907, Ch. 297, § 1 2153 L. 1890, ,Ch. 112, § 40, pt., as amended .by L. 1897, Ch. 312, § 28 1221 L. 1890, Ch. 112, 5 40, pt., as amended by L. 1897, Ch. 312, § 28 1912 L. 1896, Ch. 112, § 41 1913 L. 1897, Ch. 256, § 1 489 L. 1897, Ch. 312, § 28.... 1221, 1912 L. 1898, Ch. 165, § 4, as amended by L. 1899, Ch. 225, § 2 270 L. 1898, Ch. 325, as amended by L. 1900, Ch, ■>71 1757 L. 1898, Ch. 555, s 10 1763 L. 1898, Ch. 05'/, covered by... 421 L. 1898, Ch.-671 1278 L. 1899, Ch. 225, § 2 270 L. 1900, Ch. 171 1757 L. 1905, Ch. 108, § 2 480 L. 1007,. Ch. 297, { 1 2153 L. 1907, Ch. 049, § 2 1742 Code C Code C Code Ci Code C Code C Code C Code C: Code C: Code C Code C Code C Code Ci Code C: Code C V. Pro., § 13 602 V. Pro., § 32 1790 V. Pro., S 33 1790 V. Pro., § 03 271 V. Pro., § 04, pt 272 V. Pro., § 04, pt 1870 V. Pro., § 70 273 V. Pro., § 71 273 V. Pro., § 73.. (subd. 1) 274 V. Pro., S 74.. (subd. 2) 274 V. Pro., § 75.. (subd. 4) 274 V. Pro., 5 70 275 V. Pro., § 77. V. Pro., I 78. 270 278 TABLE I. Penal Law Penal Law Section. Section. Code Ciy. Pro., § 79 278 Code Civ. Pro., § 1122 1235 Code Civ. Pro., § 80 ,=,,;.,. 278 Code Civ. Pro,, S 1123... 1236 Code Civ. Pro., § 81 ...... 27i9 Code Civ. Pro., § 1 124 1235 Code Civ. Pro., I 125......:.. 1873 Code Civ. Pro., 5 1125 1233 Code Civ. Pro., § 130 1791 Code Civ. Pro., § 1158...; 1234 Code Civ. Pro.. § 159. pt 1839 Code Civ. Pro., § 1159 1234 Code Civ. Pro., J 334 1G3J Code Civ. Pro., § IIBO 1238 Code Civ. Pro., § 851 1G22 Code Civ. Pro., § 1161 1282 Code Civ. Pro., § 961, pt 1874 Code Civ. Pro., § 1193 876 3«de Civ. Fro.. J U80 1232 Code Civ. Fro., g 1184 W TABLE n. TABIiE n. BHOWING THB SECTIONS OF THE PENAL CODE AND THE SECTIONS OF THE PENAl, LAW IN WHICH THEY ARE CONSOLIDATED. »enal Code Section. 1 Penal Law Section. 1 Penal Code Section. 41aa Penal Law Section. 75:! 2 ■S 22 2 41b 41bb , 751 75.-, 4 2 41c 756 6 2 41d 41e , 757 6 2 20 41 31 30 2) 75S 7 4]f 759 8 9 *lg 411i 760 , 761 10 41i 762 U 41] 41k 411 763 12 13 2188 .........1931, 1932 1933 764 , 765 14 41m 766 15 1937 1030 815 41n 767 16 17 41o 4]p 41q 41r 76H ,......, 76!) 18 19 816 817 1120 1120 1220 770 .. 771 20 21 22 41i 41t 41u ,.., 772 773 774 28 34 41v 775 24 1460 41w 41x , 778 26 859 777 26 42 7 1097 1093 1600 leof) 2050 2051 1840 1841 1842 74 75 76 77 78 79 117b 118 ,., 119, pt 119, pt. 1,20 , 121 , 1843 1844 1846 1845 1847 1848 80 122 , 1849 81 123 , 1850 124 , 1851 82 125 „, 670 83 120 , 571 84 127 860 83 128 814 80 87 129 , 130 , 2031 2032 88 80 131 , 132 2033 320 90 133 , 321 91 134 , 322 02 135 , 323 93 136 lubd 1, 274 94 137 1852 96 138 , 1863 vm TABLE n. Vmal OM PMikal I^w Penal Cad* Penal Iav ^V-tt»L Section. Section. Section. 13» 185+ 178 2303 }3!). pt lubd. 3, 274 179 1042 140 1855 180 1043 140, pt 275 181 1041 141 1856 182 1040 142 , 2443 183 1044 143 6f)0 183a 1044 144 1237 184 1040 145 1780 185 1047 146 1781 186 1045 147 1080 187 1048 148 273 188 1049 148a 120 189 1050 149 277 190 1050 150 277 191 1050 151 022 192 1051 152 023 103 Bubd. 2, 1052 153 641 194 1052 154 1857 195 1052 154a 1858 196 1052 155 29 197 1052 150 1782 198 1052 157 1783 199 1052 157a 178* 200 1052 158 1785 201 1052 159 1786 202 1053 160 1691 203 1054 161 1859 204 1055 162 1808 205 1055 163 1861 206 1400 164 1862 207 1402 165 1863 208 1403 166 1864 209 1401 107 1864 210 1404 168 580 211 1250 169 681 212 1251 170 582 213 1-252 171 583 214 1253 171a 531 215 1254 171b 1480 216 1255 171o 1481 217 240 172 2300 218 242 173 231)1 219 244 174 2302 220 241 175 2304 221 243 176 2305 222 245 m 2300 223 24S he TABLE n. Venal Coda Penal Law Section. Section. J24 2120 225 21-21 22C 2122 227 2123 22S 2124 229 2120 230 2123 231 2125 232 2127 233 £1-9 234 731 235 732 236 739 237 733 238 734 239 735 240 73 J 241 737 £42 1340 243 1341 244 1342 245 134J 248 1344 247 1345 248 1345 249 1340 £50 1347 251 1313 252 1349 2i-.3 i 1350 £54 1351 £fl4a 1352 £55 Iiv|H>!ilc.l 250 l{e|ii!;ilj.l £57 l!epi-!ile,l 258 Repcale.l 259 2140 2C0 2141 201 Repealed 202 Rejiesile I 203 2143 204 2144 205 2145 266 2140 207 2147 26S 2I4S see 2142 Penal Code Pnial Law Section. Section. 270 2149 271 2150 272 2073 £73 2070 274 2071 £75 2072 276 2151 ?77 2152 i.*8 2010 2;9 2012 2!!0 2011 2f0a, yit 100 £S()ii, I't 101 28ra, pt. 103 2S0b 102 281 632 £82 70 iS2a 2400 2S2b, pt 1090 2S2b, pt 1091 283 201J £.'.3, pt 71 283, pt. 633 2R4 2175 £85 217B 2S0 2177 £S7 481 £8ra 480 £88 482 2H9 483 2!)0 484 £!)0a Repealed £91, pt. 488 £91 BUbd. 7, 487 £92 485 £n2a 488 £92b 493 £93, pt 490 £93, pt 491 £94 80 2.5 81 £98 492 2!)7 82 2!J8 340 2n0 341 3U0 342 TABLE n. !?ena1 Ooda Penal Law Penal Oida Penal Law Section. Section. Section. Section. jiOl 343 S43 .,..., n73 '^302 1110 344 070 303 6!)0 344a 974 304 C91 344b 975 305 2210 344c 070 306 2211 345 977 307 2212 340 979 308 2213 347 E79 309 2214 343 980 3!0 2215 349 997 311 2210 350 981 312 2217 351 988 313 2218 352 987 314 2219 353 1590 315 2220 354 1591 316 1140 355 1592 317 1141 355a 390 318 1142 35ob 391 319 1143 3550 392 320 1144. 355d 393 321 1145 355e 394 322 1148 358 1702 323 137(> 357 1761 324 1371 358 1760 325 1372 359 1890 326 1373 359a 1500 327 1374 359b , 1500 328 1373 3G0 1891 329 13Z7 301 1892 3a0 1373 302 1893 331 1373 3G3 924 332 13;0 3G3a .subd. 1, 140 333 1381 363a subd. 2, 143 334 1332 3C3a subd. 3, 142 335 1373 303a subd. 4, 141 335a Unconstitutional 363b 440 336 971 3G4 subds. 1-7, 2354 337 971 3G4 subd. 8, 421 33"a 982 3G4a 422 337b 9S3 3G4b 423 3..70 984 3G4c 424 337d 985 364d 425 338 972 364e 428 .339 988 364f 427 340 989 364g 423 341 990 3«4h 429 342 : subd. 1, 998 364i ,,.. .430 • TABLE H BbuI Obda Pamd Law Penal God* PmsaX Iaw Section. Bection. Section. Baetioa. 364j 431 891 1980 965 420, 2352 392 1061 «GS 2350 393 1982 %6r 2351 394 1983 nea 2353 395 i964 «09 2355 396 1741 170 2358 397 1740 <71 2357 398 1501 372 2481 399 1501 373 1360 400 1502 874 2482 401 1742 375 920 402 1743 376 1450 403 1742 377 1121 404 1744 378 2400 405 1745 379 1788 405a 1748 379a 616 405b 1747 380 1789 406 434 881 613 407 1748 382 925 407a 1749 383 514 408 1750 383a 832 408a 1751 SS3a 615 409 1896 384 830 410 18S7 3S4a 2030 411 1898 384b 620 411a 1893 3840 432 412 1752 384d 433 413 1900 384e 1610 414 1901 384f Repealed 415 870 3S4g 1270 415a 871 384h 1271 416 1980 3841 1272 417 1981 384j 1273 418 1982 384k 1274 416 1983 3841 1275 420 1984 S84m 1520 421 1985 3S4I1 1521 422 1C86 3840 1081 423 1987 384p 2360 424 1088 384q 2361 425 1989 384r 439 426 ., 1990 385 1530 427 831 380 1531 427a 1902 387 1532 428 1903 888 1533 429 1904 389 . 1894 429a R^eaied 300 , 1769 xii Pens) God* SectiQu. 430 Pena Seel TABI 1 Law tion. . 1753 . 1754 . 1756 . 1503 . 1504 , 1758 , 928 , 721 . 1509 . 433 , 433 , 437 . 433 . 642 , 1550 . 1531 , 943 . 1505 . 1122 . 927 . 1482 . 1278 , 1905 . 1277 . 2410 . 1753 . 380 , 1470 , 2090 . 2091 , 2092 , 710 711 2003 2094 2095 , 1787 1710 1711 1712 , 1713 .En, Penal Cod* Section. 466 Penal Law Section. 2035 431 467 ., 2036 432 468 468a 468b 468o 468d 468a 489 8d 470 Ut par. 190G 100 161 104 433 433a 434 435 436 102 163 437 168, 713, '472, 1716 438 par. 1787, 3d par. 1908 2038, 2097 438a 438b , 1865 439 471 ,..,.... , 1868 440 472 1887 441 473 1868 442 474 , 1869 443 4T5 1870 444 476 477 478 460 445 461 446 , 462 447 479 480 483 447a ..,..., 464 447b ■ 481 ..,..,...,,, 405 447o 482 483 949 447d 2170 447e 484 ,. 1483 447f 485 2321 448 485a 1871 449 486 221 450 487 222 451 488 . , 223 452 489 ,, 224 453 490 , 225 454 491 226 455 402 , 220 458 403 ,..., 220 457 , first par., 494 220 458 495 2'7 4S9 496 402 460 497 403 461 ...165, 712, 1471, 4P8 404 2d par. 1787, 2d par. 1908 499 . . . . , 400 2037, 2098 600 Repealed 462 1714 601 400 463 1715 602 400 464 1715 5n3 401 465 2034 504 400 ZUl TABLE n. P«iul Okida Penal Law Penal Coda Penal L*v Section. Section. 551 1309 652 850 653 851 654 852 555 853 556 854 557 855 558 85S 559 551 500 857 531 85f. 5(12 928 5fi3 029 5^4 030 565 031 506 932 6 Oa 033 567 934 567a 035 5fi7b 036 568 937 fon 938 670 939 5il 940 572 041 573 942 574 043 575 1508 576 1507 67!7 15ds 577a 1190 577b 1101 577e 1192 577d 1193 677e 1194 677f ". 1195 577fT 1198 r77h 1197 577i 1198 577) 1199 577k 1200 578 1201 579 1202 580 2411 681 2412 682 2413 583 MM xiv Section. SOS Section. 405 SO0 406 607 407 eo8 408 809 8S4 filO 88 } eii 8S7 612 887 613 881) 614 8Sn 615 889 616 8I| 617 892 618 89 ) 619 882 620 880 621 831 62i 883 623 888 624 888 625 8!)3 626 894 627 895 628 1290 629 , 12!)3 630 1294 631 , 1296 532 1298 633 1295 634 1297 635 129!) 536 1292 637 1291 638 2480 639 ... 640 1300 l;?ni 641 1.1112 642 1302 643 1 mi 644, pt. 644, pt. 442 i)47 645 646 13ii:t 1304 647 1303 648 1308 540 1307 650 1308 TABLE n. Penal Ood* Penal Law Section. Section. 684 2415 685 2416 685a 2417 686 1170 687 1171 688 1172 689 1173 590 000 691 602 692 661 693 603 694 664 695 290 696 290 697 291 698 292 699 293 COO 294 601 295 602 296 603 297 604 298 606 299 606 300 607 301 608 , 666 60d 302 610 664 611 665 612 669 613 66S 614 667 615 Unconstitutional 616, pt. 1562 filfia 1563 616b 1564 6I6e 1565 617 Unconstitutional 618 Unconstitutional 619 Unconstitutional 619a 1566 620 Unconstitutional 621 1567 622 1568 623 1569 624 1570 626 1571 Penal Cbds Penal Lav Sectioo. Section. 626 1561 627 1509 628 361 629 , 309 630 302 631 303 632 30* 633 303 634 308 634a 307 635 1991 036 1420 637 1421 638 1422 639 142a 639a 1424 040 1425 640a 1160 640b 1161 640c 1100 640d Repealed 640e 2039 641 653 642 553 643 121 644 121 645 1895 646 1428 647 1427 648 1428 649 1429 650 1430 651 1401 651a 1432 652, pt 1907 652, pt 1903 652a in09 653 530 654 1433 654a 1434 655 185 656 188 657 187 658 188 659 189 f!00 190 661 181 XV TABLE IT. ftaial Ctode Penal Law Penal Code Pfenal Law Section. Section. Section. tiection. eC2 l^'a 691 1021 6C3 193 692 1022 664 182 693 2461 CCS 181 694 2190 CCS '. 194 695 2190 (507 '* 195 696, pt 2191 608 , 196 698, pt. 2192 609 180 697 2193 670 273 698 2187 e71 279 £99 2186 872 1872 700 2185 673 ' 1910 701 2184 674 944 702 2181 674a 2240 703 2182 C74b 1484 704 2188 674c 1485 7i>5 2180 674(1 •• I486 7:'6 36 e74e 1487 707 610 674f 945 708 611 874? 1911 709 640 e74h 948 710 612 875, pt. 43 711 644 675, pt. 720 712 1631 e75a 1650 713 2194 676 ■ 1933 714 2444 677 ' 1939 713 t445 678 .•-•• 28 716 64S 679 33 717 643 680 601 717a 046 681 1931 718 S 682 1930 719 38 683 550 720 23 084 35 721 921 8R5 260 722 24 686 2(51 723 3T 687 262 724 39 e87a 2189 725 40 688 lO'l 726 l8t par. 2601 68Ra J042 727 2502 689 1940 728 2500 690 1020 729 441 »n TABLE UL TABIS TTT. SHOWING SECTIONS OF THE PENAL LAW ADDED, AMENDED OR RE- PEALED EY LAWS OF 1909, SUBSEQUENT TO ITS ENACTMENT AS A CONSOLIDATED LAW. S 71 Oh. 524 280, added Ch. 483 443, added Ch. 424 484, 8uM. 1 Ch. 278 611, repealed . . Ch. 524 752 Ch. 308 852 . . Ch. 368 856 CR. 368 1092, added Ch. 524 1140-a, added Ch. 279 lUl-a, added . . Ch. 280 1250 Ch. 246 1272 Ch. 205 1293-a, added Ch. 514 1426, suiMi. n-a, added.... Ch. 62S 1460, renumbered Ch. 524 1566 Ch. 204 1620 , Ch. 240 1943, renumbered Ch. 524 2175, added Ch. 624 2176, added Ch 524 2177, added Ch. 524 2186 Ch. 478 2189 Ch. 282 2197, repealed Ch. 467 2198, added Ch. 240 2354 Ch. 240 2444 Ch. 240 2461, repealed . Ch. 624 2461, added . .....Ch. 624 PENAL LA^W stath: of jstew york. LAWS 1909. CHAPTER 88. With all Amendments Passed by the Leqislatxjke to the End of the Eegulae Session of 1921. AN ACT providing for the Punishment of Crime, constituting Chapter Forty of the Consolidated Laws. The People of the State of New York, represented in Senate and Assembly, do enact as follows: CHAPTER 40 OF THE CONSOLIDATED LAWS. PENAL LAW. Abticle 1. Short title and definitions (§§ 1-3). 2. General provisions (§§ 20-43). 3. Abandonment (§ 50). 4. Abduction (§§ 70, 71). •6. Abortion (§§ 80-82). 8. Adultery (§§ 100-103). 10. Advertising (§§ 120, 121). 12. Agents (§i 140-143). 14. Anarchy (8$ 160-166). 16. Animals (SS 180-196). 18. Arson (SS 220-227*. 20. Assault (S§ 240-246). 22. Attempt to commit crime (§S UUO-262). 24. Attorneys (§§ 270-280). 26. Banking (§§ 2n'>-^n4K 28. Barratry (§§ 320-323). 30. Bigamy (§§ 340-343). 32. Bills of lading, receipts and vouchers (§§ 360-367). 34. Bribery and corruption (§§ 370-381). 36. Bucket shops (§§ ""*» "Of.1 38. Burglary (§§ 400-408). 40. Business and trade (§§ 420-445). ARTICLES AwncLB4a. Canals (§§ 46C 465). 44. ChildrHn (§S 480-493). 46. Civil rights (?§ 510-516). 48. Cd^rciou (5§ 530-533). 50. Cxiiiraunicati'in (S§ 550-553). 52. Coinpouiidins crime (J^ 570, 671)i 54. Conspiracy (H§ 580 583). 56. Cnlempt of court (SS 600-602). 58 Conviction (§610). 60. Convict iiiadi- gfoods (§620). 62. Convicta (§§ 640-644). 64. Corporations (^§ bUO-669). 66. Crime against nature (§§ 6!)0, 691). 68. Disguisea (g§ 710-713). 70. Disorderly conduct (§S 720, 721). 72. Dueling (§| 730-737). 74. Elective franchise (§§ 750-732). 76. Evidence (|§ 810-817). 78. Exhibitions (|| 830-835). 80. Fvto'tin" ""' t''-"nts (§§ 850-861). 82. Ferries (§§ 870, 871). 84. Porgefy (£§ 880-895). 86. Frauds and cheats (5§ 920-958). 88. Gambling (S§ C70-9S7). 90. ITabitual crimir.a:B (S§ 1C20-1022). 92. Hazing (§ lO'SO). 94. Homicide (§§ 104O-105E). 96. Horse raeinj (C2 1C80-1CE2). 98. Husband and wife (S5 1090, 109^). 100. Ice (§ llOJ). 102. Incest (§ 1110). 104. Incompetent persons (S§ 1120-1123). 106. Indecency (§§ 1140-1K7). 108. Indians (§§ 1160, 1161). 110. Insolvency (§§ 1170-1173). 112. Insurance (§§ 1190-1203). 113. intoxicating liquor (gS 1210-1218). 114. Intoxication (§§ 1220, l^Zl). 116. Juries and jurors (§3 1:30-1237). 118. Kidnapping (§§ 1250-1255). ]20. Labor (§§ 1270-12,^ 122. Larceny (§§ 1200-1313). 124. Ledslature (§§ 1"2"-1331). 126. Libel (SI 1340-1353). 128. Logs (5 1360). 130. Lotteries (§§ 1370-1386). 132. Maiming (§§ 1400-1404). 134. Malicious mischief (|§ 1420-1435). 136. Marriagea ({ 14S0). ARTICLES Abuclk 140. Meetings (§§ 1470-1472). 142. Militir" (§§ 1480-l4>!7; 144. Navigation (§5 1500-1500). 146. Negotiable instruirents (§5 1520, 1621). 148. Nuisances (§§ 1530-1533). 150. Oysters (§§ 1550, 1551). 152. Passage tickets (§§ 1560-1571). 154. Pawnbrokers (§§ 1590-1592). 156. Peddlers (§ 1610). 158. Perjury and subornation of perjury (5§ 1620-133*1. 160. Poor persons (§ 1650). 162. Prisoners (§§ 1690-1698). 164. Prize-fighting and sparring (5§ 1710-1716). . 166. Public health (§§ 1740-1763). 168. Public jus ice (§§ 1780-1792). J70. Public offices and officers (§§ 1820-1876). , 172. Public safety (§§ 1890-1913). 174. Punishment (§§ 1930-1942). 176. Quarantine (§§ 1960-1964). 178. Railroads (§§ 1980-1991). 180. Rape (§§ 2010-2013). 182. Real property (§§ 2030-2041). 184. Records and documents (§§ 2050, 2053). 186. Religio-. (§§ 2070-2073). 188. Riots and unlawful assemblies (§§ 2090-2097). 190. Robbery (§§ 2120-2129). 192. Sabbath (§§ 2140-2154). 194. Salt works (? 2170). 195. Seduction (§§ 2I76-2I77). 196. Sentence (§§ 2180-2198). 198. Sepulture (§§2210-2220). 200. Societies and orders (§ 2240). 202. Suicide (§§ 2300-2306). 204. Taxes {§§ 2320, 2321). 206. Trade-marks (§§ 2350-2357). 208. Trading stamps (§§ 23U0, 2361). 210. Tramps (§§ 2370-2372). 212. Treason (§§ £380-2383). 214. Usury (§ 2400). 216. Weights and measures (§§ 2410-2417). 218. Witness (§§ 2440-2445). 220. Women (§§ 2460, 2461). 222. Wrecl-s (§§ 2480-2482), 224. Repeal of provisions of penal law rniist be explicit; laws repealed; time of taking efTect (§.§ 2500-2502). |§ 1-2] SHORT TITLE AND DEFINITIONS [Art. t ABTICI.E 1. SHORT TTTIX AND nEFINITXONS. 8B0TION I. Short title. 2. Definitions. 3. Construction of terma. § 1. Short title. This chapter shall be known as " Penal Law." DerlTationi Penal Code, § 1. See § 20, post. § 2. Definitions. Crima A " crime " is an act or omission forbidden by Jaw, and punishable upon conviction hy : 1. Death; or, 2. Imprisonment; or, 3. Fine; or, 4. Removal from office; or, 5. Disqualification to hold any office of trust, honor or profit under the state ; or, 6. Other pens.1 discipline. Division of crima. A crime is: 1. A felony; or, 2. A misdemeanor. Felony. A " felony " is a crime which is or may be punishable by: 1. Death; or, 2. Imprisonment in a state prison. Misdemeanor. Any other crime is a " misrlemranor." Principal. A person ccnccrred in the commission of a crime, whether he directly commits tl-'e act cirstitntirg- the off'-nse or aids and abets in its commission, and whether ])resent or absent, and a person who directly or indirectly counsels, coinmaiids, in- duces or procures another to commit a crime, is a " princijial." Accessory. A persion who, after the commission of a felony, harborB, conceals, or aids the offender, with inter t that he may avoid or escape from arrest, trial, conviction, or punishmert, hav- ing knowledge or reasonable ground to believe that such offender is liable to arrest, hag been arrested, is indicted or convicted, or has committed a felony, is an " accessory " to the felony. 4 Art, 1] SHORT TITLE AND DEFINITIONS [§ 2 Attempt to commit a crime. An act, done with intent to com- mit a crime, and tending but failing to effect its commission, ia " an attempt to commit that crime." DerlTation: Penal Code, §§ 3-6, 29, 30, 34. Crime. — McCord v. People (1871), 46 N. Y. 470, 473; People v. Adanw (1879), 16 Hun, 549; People ex rel. Hislop v. Cowlea (1879), 16 Hun, 577, aff'd 77 N. Y. 331; People v. Burton (1883), 1 N. Y. Cr. 297, 16 W. Dig. 195; People V. Hale (1883), 1 N. Y. Cr. 533; People v. Parr (1886), 42 Hun, 313; People ex rel. Kopp v. French (1886), 102 N. Y. 583; s. c, 4 N. Y. Cr. 447, aff'g id. 300; s. c, 39 Hun, 507; Darrow v. Family Fund Society (1886), 42 Hun, 247, 116 N. Y. 537, 542; People v. West (1887), 106 N. Y. 293, 296, aff'g 44 Hun, 162; People v. Barber (1888), 48 Hun, 198; People v. Gillson (1888), 109 N. Y. 389, 406; Lawton v. Steele (1890), 119 N. Y. 233, 16 Am. St. Rep. 813, aff'g 5 N. Y. Supp. 953; People v. Most (1891), 128 N. Y. 108, 8 N. Y. Cr. 278; People v. Meakim (1£92), 133 N. Y. 214, 8 N. Y. Cr. 404, aff'g 61 Hun, 327, 8 N. Y. Cr. 308; People v. Phyfe (1892), 136 N. Y. 554, rev'g 48 N. Y. S. R. 350; HewHt v. Newburger (1894), 141 N. Y. 538, rev'g 66 Hun, 230; People v. S one (1£95), 85 Hun, 130; People v. Girard (1895), 145 N. Y. 105, aff'g 73 Hun, 457; People ex rel. Shortell v. Markell (1897), 20 Misc. 149, 12 N. Y. Cr. 312; People ex rel. Stevenson Co. v. Lyman (1902), 67 App. Div. 446, 73 N. Y. Supp. 987; Mairs v. Baltimore, etc., R. Co. (1902), 73 App. Div. 273, 76 N. Y. Supp. 838; People ex rel. Allen v. Hagan (1902), 170 N. Y. 46, 16 N. Y. Cr. 313; People v. Martin (1902), 175 N. Y. 315, aff'g 77 App. Div. S96, 79 N. Y. Supp. 340, which reversed 38 Misc. 67, 76 N. Y. Supp. 953; People v. Abeel (1004), 45 Misc. 86, 92 N. Y. Supp. 69); see alsj People v. Smith, 5 Cow. 25S; People v. Hays, 1 Hill, 551; People v. Reed, 47 Barb. 235; Hamilton v. People, 57 Barb. 025; Morris v. People, 3 Denio, Sil; Mayor V. Eisler, 2 Civ. Proc. 125; Mogul Steamship Co. v. McGregor, 23 Q. B. Div. 606; Com. v. Weiss, 139 Pa. St. 241, 23 Am. St. Rep. 1S2; Matter of Wilson, 114 U. S. 417; United States v. Wynn, 9 Fed. 886; 2 Abb. Nat. Dig. 222. rivision c£ Ciimcs. — Mails v, Baltircore, etc., R. Co. (1902), 73 App. Div. 273, 76 N. Y. Supp. 828; People ex rel. Sn:.ith v. Van De Carr (1903), 86 App. Div. 10, 83 N. Y. Supp. 245, 17 N. Y. Cr. 455. Felony.— People v. Paik (1,C9), 41 N. Y. 21, aff'g 1 Lans. 263; Paopl? v. Cole (1883), 2 N. Y. Cr. lOS; Bork v. People (1883), 91 N. Y. 5, aff'g 26 Hun, 670, 1 N. Y. Cr. 3G8; People v. Lyon (1885), 99 N. Y. 210, 3 N. Y. Cr. 160, rev'g 33 Hun, 623, 1 N. Y. Cr. 400, 2 N. Y. Cr. 434; People v. Richards (1887), 5 N. Y. Cr. 355, 44 Hun, 283; People v. Johnson (1887), 46 Hun, 670; People V.Johnson (1888), 110 N. Y. 141; Benedict v. Williams (1888), 48 Hun, 123; People v. Huglies (1S93), 137 N. Y. 30, aff'g 46 N. Y. S. R. 413; People v. Carter (1895), 8S Hun, 3C4, 11 N. Y. Cr. 25; People v. Cornyn (1901), 38 llise. 136, 72 N. Y. Supp. 1088, 10 N. Y. Cr. 102; Mairs v. Bait. & OMo R. R. Co. (1902), 73 App. Div. 273, 76 N. Y. Supp. 838; People ex rel. Smith v. Van De Carr (1903), 86 App. Div. 10, 83 N. Y. Supp. 205, 17 N. Y. Cr. 455; People V. Stacy (1907), 119 App. Div. 747, 104 N. Y. Supp. 615, 21 N. Y. Cr. 215; People ex rel. Cosgriff v. Craig (1908), 60 Misc. 531; see also People V. Borges, 6 Abb. Pr. 132; People v. Van Steenburgh, 1 Park. 39; Crenshaw V. People, 17 Am. Dec. 791-795 (note). § 2] SHORT TITLE AND DEFINITIONS [Art. 1 nUBdemeanor. — People v. Finn (1881), 26 Hun. 53, 60; Peopdo v. Faber (1883), 92 N. Y. 149, 44 Am. Rep. 357, rev'g 29 Hun, 320; People v. Lyon (1883), 99 N. Y. 219, 1 N. Y. Cr. 400; People v. Cooper (1884), 3 N. Y. Cr. 117; People v. Sweeney (1886), 41 Hun, 340; People v. Richards (1887), 5 N. Y. Cr. 355, 44 Hun, 278; People v. Upaon (1894), 79 Hun, 87; People v. Car- ter (1895), 88 Hun, 305, 11 N. Y. Cr. 25; People v. Markell (1897), 20 Mise. 149; People ex rel. Frank v. The Keeper, etc. (1902), 38 Misc. 238, 77 N. Y. Supp. 145, aff'd 80 App. Div. 448, 80 N. Y. Supp. 872; Mairs v. Bait. & Ohio E. R. Co. (1902), 73 App. Div. 273, 76 N. Y. Supp. 838; People ex rel. Smith V. Van De Carr (1903), 86 App. Div. 10, 83 N. Y. Supp. 243, 17 N. Y. Cr. 453; People V. Stacv (1907), 119 App. Div. 748, 104 N. Y. Supp. 615, 21 N. Y. Cr. 215; see also People v. Hovey, 5 Barb. 117; People v. Bogart. 3 Abb. Pr. 193. Principal.— McCarney v. People (1880), 83 N. Y. 413; People v. Ryland (1884), 97 N. Y. 126; People v. Baasford (1S85), 3 N. Y. Cr. 219. S2;?; People v. Fitzgerald (1887), 105 N. Y. 146, 5 N. Y. Cr. 335, 6 N. Y. St. 32, rev'g 43 Hun, 36, 6 N. Y. St. 599 ; People v. Sharp ( 1887) , 107 N. Y. 427, 12 W. Y. State Rep. 217, rev> 45 Hun, 460, 10 N. Y. Slate Rep. f22; People v. B tt r son (1888), 50 Hun, 44, 5 N. Y. Cr. 176; People v. Brien (1889), 53 Hun.| 496, 25 N. Y. St. 239, 7 N. Y. Cr. 166; Leonard v. Poole (1889), 114 N. Y.' 371, atl'g 55 N. Y. Super. 213; People v. Bliven (1889), 112 N. Y. 82, 20 N. Y. St. 487; People v. Kief (1890), 58 Hun, 337, 34 N. Y. St. 533, aff'd 120 N. Y. 663, 37 N. Y. St. 479; People v. Phelpa (1891), 61 Hun, 116, 39 N. Y. St. 599; People v. O'LOnnell (1891), 60 Hun, 109, 33 N. Y. St. 109; People V. Cotto (1892), 131 N. Y. 579; People v. Bosevorth (1892), 64 Hun, 72; People v. McKane (1894), 143 N. Y. 455, aff'g 80 Hun, 323; People v. Sebrin.; (1895), 14 Misc. 31; Anderson v. Schlesinger (1896), 16 Miss. 535; S'lati v. Security Mut. L. Assn. (1896), 11 App. Div. 487; People v. MoLauglilin (1S96), 150 N. Y. 365; People v. Kelly (1896), 11 App. Div. 495, 153 N. Y. 651; People v. Peckens (1897), 153 N. Y. 576, 12 N. Y. Cr. 433; People v. Knatt (1898), 156 N. Y. 305; People v. Stock (1898), 26 App. Div. 564; People v. Fitzgerald (1898), 156 N. Y. 237, 13 N. Y. Cr, 36, rev'g 20 App. Div. 139; People v. Rivello (1899), 39 App. Div. 454, 14 N. Y. Cr. 49; Mai- den v. Dorthy (1899), 160 N. Y. 56, afl'g 12 App. Div. 188; People v. Field- ing 18U0), 36 App. Div. 401; People v. Dileher (1902), 38 Migo. 91, 77 N. Y. Supp. 108, 16 N. Y. Cr. 548; People v. Martin (1902), 77 App. Div. 396, 79 N. Y. Supp. 340, 17 N. Y. Cr. 150; People V. Mills (1903), 41 Misc. 195, 83 N. Y. Supp. 94; People v. Kent (1903), 41 Misc. 193, 83 N. Y. Supp. 943, 17 N. Y. Cr. 461; People V. Lagroppo (1904), 90 App. Div. 229, 86 N. Y. Supp. 116, 18 N. Y. Cr. 87; People v. Mills (1904), 178 N. Y. 274, 18 N. Y. Cr. 285, aff'g 91 App. Div. 331, 86 N. Y. Supp. 529; People v. Putnam (1904), 90 App. Div. ' 127, 85 N. Y. Supp. 1056, 18 N. Y. Cr. 105; People v. Corbalis (1904), 178 N. Y. 523; People v. Canepi (1904), 93 App. Div. 380, 87 N. Y. Supp. 773, 18 N. Y. Cr. 344; People v. Schiavi (1904), 96 App. Div. 483, 89 N. Y. Supp. 664, 18 N. Y. Cr. 469; People v. Du Veau (1905), 105 App. Div. 381, 94 N. Y. Supp. 225, 19 N. Y. Cr. 268; People v. Patrick (1905), 182 H. Y. 141; People ex rel. Stearns v. Marr (1905), 181 N. Y. 468; People v. Summerfield (1905), 48 Misc. 242, 96 N. Y. Supp. 5C2, 19 N. Y. Cr. 508; People v. Kellogg (1&05), 105 App. Div. 605, 94 N. Y. Supp. 617; People ex rel. Perkins v. 6 Art. 1] SHORT TITLE AND DEFINITIONS [§ 3 Moss (1007), 187 N. Y. 420, 50 Misc. 198, 20 N. Y. Cr. 579; People v. Jacques (1907), 54 Misc. 8, 105 N. Y. Supp. 387; People v. Aqritelli (1908), 67 Misc. 574; People v. Taylor (1908), 192 N. Y. 402; see also People v. Wyley, 48 N. Y. St. 500, 20 N. Y. Supp. 446; People v. McElroy, 37 N. Y. St. 650; People v. Hall, 57 How. Pr. 342. Accessory.— People v. Dunn (18S9), 53 Hun, 381, 25 N. Y. St. 460, 7 N. Y. Cr. 173, 6 N. Y. Supp. 805; People v. Pedro (1897), 19 Misc. 303, 12 N. Y. Cr. 4upp. 1137; People y. Hatter, 22 N. Y. Supp. 691. Art 2] GENERAL PEOVISIONS [§ 2» ARTICLE 2. GENERAI. PROVISIONS. Section 20. Objects of penal law. 21. General rules of construction of this chapter. 22. Effect of chapter. 23. Civil rights and remedies not aifected. 24. Civil remedies preserved. 25. Ambassadors and foreign ministers excepted from punishment. 26. Principal and accessory. 27. All principals in misdemeanors. 28. Acts punishable under foreign law. 29. Violation of statute which imposes no penalty is a misdemeanor. 30. Jury to find the degree of a crime. 31. Conviction must precede punishment. 32. Acquittal or conviction bars indictment for another degree. 33. Foreign conviction or acquittal a, defense. 34. Morbid criminal propensity no defense. 35. Omission to perform act not punishable if act is performed by another. 36. Limit of fine where statute does not specify amount. 37. Proceedings to impeach pressrved. 38. Application of this chapter to prior offenses. 39. Military punishments preserved. 40. Certain statutes continued in force. 41. Manner of prosecution and conviction. 42. Rule when act done in defense of self or another. 43. Penalty for acts for wliich no punishment is expressly prescribed. § 20. Objects of penal law. This chapter specifies the clas-ses of persons] who are deemed capable of crimas, and liable to punishment therefor; defines ihe nature of the various crimes ; and prescribes the kind and measure of punshment to be inflicted for each. Derivation: Penal Code, § 7. People V. McTameney (1883), 30 Hun, 505, 13 Abb. N. C. 56, 66 How. Pr. 75, 1 N. Y. Cr. 437; People v. Rug? (1885), 98 N. Y. 537, 551; People v. Jaehne (1886), 103 N. Y. 182, 193, 4 N. Y. Or. 479; People v. Palmer (1888), 109 N. Y. 110; People v. Richards (1888), 108 N. Y. 137, 144, rev'g 44 Hun, 278; Fitzgerald v. Quann (1888), 109 N. Y. 441, 445; People v. Stevens (188»), 109 N. Y. 159, 1C2; People v. Fanshawe (1893), 137 N. Y. 68, 74, aff'g «5 Hun, 77, 19 N. Y. Supp. 865; Matter of Hallenbeck, 65 How. Pr. 40i, 1 N. V. Cr. 437 note. 9 IS 31-22] GENERAL PEOVISIONS [Art. 2 g 21. General rules of construction of this chapter. The rule that a penal statute is to be strictly construed doe? not apply to this chapter or any of the provisions theitof, but all such provisions must be construed accordiiig to the fair import of their terms, to promote justice and eiftct the objects of the law. Derivation: Penal Code, § 11. Matter of Hallenbeck (1883), 1 N. Y. Cr. 437, 65 How. 401; People ▼. McTameney (1883), 30 Hun, 505, 13 Abb. N. C. 56, 66 How. 70, 1 N. Y. Cr. 437; Cowley v. People (1880), 83 N. Y. 464, 468; People v. Whedon (1884)', 2 N. Y. Cr. 318; People v. Bauer (1885), 37 Hun, 407; Tliomas v. Mut. Pro^ tective Union (1888), 49 Hun, 171, 2 N. Y. Supp. 195; People v. Plielpg (1892), 133 N. Y. 269, 44 N. Y. St. 911, aff'g 61 Hun, 11.^ 15 N. Y. Supp. 440; Beebe v. Supervisors (1892), 64 Hun, 377, 1!) N. Y. Supp. 629; Grannan V. Westchester Pacing Assn. (1897), 16 App. Div. 8, 44 N. Y. Supp. 790; Peo- ple V. Nelson (1897), 153 N. Y. 90, 12 N. Y. Cr. 368, rev'g 91 Hun, 635, 36 N. Y. Supp. 1130; People v. Fielding (1899), 36 App. Div. 401, 55 N. Y. Supp. 530; People v. Martin (1903), 175 N. Y. 315, aff'g 77 App. Div. 396, 79 N. Y. Supp. 340, 17 N. Y. Cr. 150; People v. Abeel (1905), 182 N. Y. 415, 100 App. Div. 516, 91 N. Y. Supp. 1107, 45 Misc. 89, 91 N. Y. Supp. «P9; People v. Huggins (1906), 110 App. Div. 613, 615, 97 N. Y. Supp. 187, 20 N. Y. Cr. 257; People ex rel. Collins v. McLaughlin (1908), 60 Misc. 308; see also People v. West, 49 Cal. 610; United States v. Sharp, Pet. C. C. 118; People V. Tisdale, 57 Cal. 104; People v. Soto, 49 Cal. 68; Lamb v. State, 67 Md. 524, 10 Crim. L. Mag. 95; Matter of Gutierrez, 45 Cal. 431. § 22. Effect of chapter. No act or omission begun after the beginning of the day on ■which this chapter takes effect as a law, shall be deemed criminal or punishable, except as preeoribed or authorized by this chapter, or by some statute of this state npt repealed by it. Any act. or omission begun prior to that day may be inquired of, prosecuted and punished in the same manner as if this chapter had not been passed. BeriTation: Penal Code, § 2. Hartung v. People (1800), 22 N. Y. 95; Shepherd v. People (1862), 25 N^ Y. 406, 24 How. 388; Ratsky v. People (1864), 29 N. Y. 124, 28 How. 112; Stokes v. People (1873), 53 N. Y. 164; People ex rel. Pellis v. Supervisors (J875), 65 N. Y. 300, rev'g 03 Barb. S3; People v. Lord (1877), 12 Hun, 2f2; People v. Bernardo (18"3), 1 N. Y. Cr. Hep. 245; People v. Hallenbeck (1883), 65 How. Pr. 401, 1 N. Y. Cr. 437 mte; People v. Sadler (1884), 97 N. Y. 14G, 3 N. Y. Cr. 474; People v. Raymond (1884), 32 Hun, 123; People v. Jaehne (1886), 103 N. Y. 182, 4 N. Y. Cr. 193, aff'd 128 U. S. 189, 6 N. Y. Cr. 237; People v. Beckwilh (ISKS), ms N. Y. 67, 7 N. Y. Cr. 146; People V. O'Neil (1888), 109 N. Y. 2.'i1 ; Penv], y. O'Brien (1888), 111 N. Y. 10 Art. 2] GENEEAL PROVISIONS [§§ 23-2S 1, 7 Am. St. Rep. 684, rev'g 45 Hun, S19; People v. Turner (1889), 117 N. Y. 233, 15 Am. St. Rep. 498; People v. Moran (1889), 54 Hun, 279, 7 N. Y. Supp. 582, 7 N. Y. Cr. 32!); Bullock v. Town of Durham (1892), 64 Hun, 380, 19 N. Y. Supp. 635; People v. Hayes (1893), 140 N. Y. 493, 23 L. R. A. 830, itf'g 70 Hun, 111, 24 N. Y. Supp. 194; People v. England (1895), 91 Hun, 152, 36 N. Y. Supp. 534; People v. Hawker (1897), 12 N. Y. Cr. 122, rev'd 12 N. Y. Cr. 257, 162 N. Y. 234, afl'd 170 U. S. 189, rev'g 14 App. Div. 188, 43 N. Y. Supp. 516; see also Cummings v. State, 4 Wall. 277; Sta'e v. Corson, 59 Me. 137; Com. v. Mott, 21 Pick. 474; Com. v. Dorsey, 103 Mass. 412; Clarke V. State, 23 Miss. 261; Calder v. Bull, 3 Dall. 388, 390; Boston v. Cummings, 16 Ga. 102; Matter of Garland, 4 Wall. 333, 32 How. Pr. 241; Garvey's Case, 6 Colo. 384, 49 Am. Rep. 358; Gut v. State, 9 Wall. 35; Hair v. State, 16 Nebr. 601; Hart v. State, 40 Ala. 21; Herber v. State, 7 Tex. 70; Hopt v. Territory, 110 U. S. 574; Matter of Hunt, 13 S. W. 145; Keene v. State, 3 Cliand. 109, 3 Penn. 99; Knuckler v. People, 5 Park. 212; Kring v. State, 107 U. S. 221; Lasure v. State, 19 Ohio St. 43; State v. Manning, 14 Tex. 402; Marion v. Sta'e, 20 Nebr. 233, 57 Am. Rep. 825; Mclnturf v. State, 20 Tex. App. 335; Maul v. State, 25 Tex. 166; Matter of Medley, 134 U. S. 160; State V. Moore, 42 N. J. L. 203, 39 Am. Rep. 558; People v. Mortimer, 46 Cal. 114; State V. Ryan, 13 Minn. 370; Matter of Tyson, 6 L. R. A. 472; Walston v. Com., 16 B. Monr. 15; Waterford, etc.. Turnpike Co. v. People, 9 Barb. 161; State V. Wilson, 48 N. H. 398; WOart v. Winnick, 3 N. H. 473; State t. Arliii, 39 N. H. 180; Blann v. State, 39 Ala. 353: Strong v. State, 1 Blackf. 193; Thompson v. Missouri, 171 U. S. 380. § 23. Civil rights and remedes not affected. The pfovisions of this chapter are not to be deemed to affect any civil rights or remedies existing at the time when this chap- ter takes effect, by virtue of the common law or of any provision of statute. Derivation: Penal Cbde, $ 720. Reynolds v. Everett (1893), 67 Hun, 204, SO N. Y. St. 897, 22 N. T. Supp. 313. § 24. Civil remedies preserved. The omission to specify or affirm in this chapter any liability to any damages, penalty, forfeiture or other remedy, imposed by law, and allowed to be recovered or enforced in any civil action or proceeding, for any act or omission declared punishable herein, docs not affect any right to recover or enforce the same. Derivation: Penal Code, S 722. § 25. Ambassadors and foreign ministers excepted from pun- ishment. Ambassadors and other public ministers from foreign govern- 11 §§ 36-29] GENEKAL PKOVISIONS [Art. 2 ments, accredited to the president or government of the United States, and recognized according to the laws of the United States, with their secretariesi, messengers, families and servants, are not liable to punishment in this state,, but are to be returned to their own country for trial and punishment. Derivation: Penal Code, | 27. § 26. Principal and accessory. A party to a crime is, either: 1. A principal ; or, 2. An accessory. Derivation: Penal Code, i 28. See Penal Law, § 2. See cases cited under Penal Law, section 2. § 27. All principals in misdemeanors. A person who commits or participates in an act which would make him an accessory if the crime committed were a felony, is a principal and may be indicted and punished as such, if the crime be a misdemeanor. Derivation: Penal Code, { 31. People V. Clark (1891), 8 N. Y. Cr. 179, 210, 14 N. Y. S. 642; Anderson v. Schlesinger (1896), 16 Misc. 535, 38 N. Y. S. 296; People v. Trainor (1901), 67 App. Div. 422, 68 N. Y. Supp. 263; People v. Taylor (1908), 192 N. Y. 402; see also Ward v. People, 3 Hill, 395, 6 Hill, 114; People v. Mathews, 4 Wend. 229; Lowenstein v. People, 54 Barb. 299; Erwin v. People, 4 Den. 129; People ex rel. Beebe v. Warden, etc., 89 N. Y. Supp. 322. § 28. Acts punishable under foreign law. An act or omission declared punishable by this chapter, is udt less so b( cause it is also punishable, under the laws of another state, govrriiment or country, unless the contrary is expressly declai'cd in this chapter. Derivation: Penal Code, § 678. People V. Martin (1885), 38 Misc. 67, rev'd 77 App. Div. 396, 175 N. Y. 315; People v. Lyon (1855), 99 N. Y. 219. § 29. Violation of statute which imposes no penalty is a mis- demeanor. Where the performance of any act is prohibited by a statute, Art. 2] GEXEKAL PROVISIONS [§§ 30-32 and no penalty for the violation of such statute is imposed in anj statute, the doing such act is a misdemeanor. DeriTatlon: Penal Code, § 155. Foote V. People (1874), 56 N. Y. 321, rev'g 2 Th. & C. 216; Gardner v. People (1875), 62 N. Y. 299, aff'g 2 Hun, 222, 5 Th. & C. 678; People ex rel. Warren v. Beck (1894), 10 Misc. 77, 30 N. Y. Supp. 473; Matter of Vander- hoff (1896), 15 Misc. 434, 36 N. Y. Supp. 833; People v. Olcese (1903), 41 Misc. 104, 83 N. Y. Supp. 973; Keller v. Erie R. Co. (1905), 183 N. Y. 67; see also Mayor v. Eisler, 2 Civ. Proc. 125; Ex parte Pickett, 55 How. Pr. 491; People V. Bogart, 3 Abb. Pr. 202, 3 Park. 143. § 30. Jury to find the degree of a crime. Whenever a crime is distinguished into degrees, the jury, if they convict the prisoner, must iind the degree of the crime of which he is guilty. Serivation: Penal Code, § 10. People V. Rugg (1885), 98 N. Y. 637, 3 N. Y. Cr. 172; People v. Kelly (1885), 35 Hun, 295; People ex rel. Young v. Stout (1894), 81 Hun, 336, 30 N. Y. Supp. 898; People v. Foster (1908), CO Misc. 13; see also McNevins t. People, 61 Barb. 307. § 31. Conviction must precede punishment. The punishments prescribed by this chapter can be inflicted only upon a legal conviction in a court having jurisdiction. Derivation: Penal Code, § 9. Schiffer v. Pruden (1876), 64 N. Y. 62, aff'g 30 n1 Y. Super. 167; Blaufus v. People (1877), 69 N. Y. 107, 25 Am. Rep. 148; Davis v. AmericaTi. etc,, Society (1878), 75 N. Y. 362; Matter of McDonald (1884), 32 Hun, 583, 2 N. Y. Cr. 107, 140; People v. Bork (18841. 96 N. Y. 188; People v. Fabian (1908), 126 App. Div. 95; see also McNeill's Case, 1 Cai. 72; Kramer v. Police Department of New York, 53 N. Y. Super. 492; Matter of Browne, 7 Crim. L. Mag. 328; Com. v. Gorham, 90 Mas=i. 420; Com. v. Lockwood, 109 Mass. 323, 12 Am. Eep. 699; Marion v. State, 16 Nebr. 349. § 32. Acquittal or conviction bars indictment for another degree. Where a prisoner is acquitted or convicted, upon an indictment for a crime consislinaj of diffrrerit degrees, he can not thereafter be indicted or tried for the same crime, in any other degree, nor for an attempt to commit the crime so charged, or any degree thereof. Derivation: Penal Code, § S3. Guenther v. People (1861), 24 N. Y. 100; People v. Dowling (1881), 84 N. 13 i§ 33-371 GENERAL PROVISIONS [Art. 3 Y. 478; see People v. Cignarale (1888), 110 N. Y. 23, 33, 16 N. Y. St. 155; People V. Sullivan (1903), 173 N. Y. 122, 130; see also Reg. v. nilmore, 15 Cox Cr. Cas. 55, 36 Eng. Rep. 500; People v. Saunders, 4 Park. 196 § 33. Foreign conviztion or acquittal a defense. Whenever it appears upan the trial of an indictment, that the oiftnse was committed in anotHer state or cauulry, or uiidtr such circumstances that the courts of this state or goveniniout had juris- diction thereof, and that the defendant has already been acquitted or convicted on the merits upon a criminal pro® culion under the laws of such state, or country, founded upon the act or omission in respect to which he is upon tria.1, such former acquittal or con- viction is a sutKcient defense. Derivation: Penal Code, § l79. § 34. Morbid criminal propensity no defense. A morbid propensity to commit prohibited acts, existing in the mind of a person who is not shown to have been incaj)able of knowing the wrongfulness of such acts, forms no defense to a prosecution therefor. DeTivation: Penal Code, § 23, Flanigan v. People (1873), 52 N. Y. 467; People v. Otto (1885), 38 Hun, 97, 4 N. Y. Cr. 134; People v. Carpenter (1886), 102 N. Y. 250, 4 N. Y. Cr. 187, aff'g 38 Hun, 490; People v. Krist (1901), 168 N. Y. 29; People v. Wal t; 50 How. Pr. 204. § 35. Omission to perform act not punishable if act is per- formed by another. No person is puniiahable for an omission to perform an act, where such act has been performed by another person acting in his behalf, and competent by law to perform it. DeriTation: Penal Code, § 684. § 36. Limit of fine where statute does not specify amount. Where, in this chapter, or in any other statute making any crime punishable by a fine, the amount of the fine is not specified, a fine of not more than five hundred dollars may be impoeed. DeriTation: Penal Code, § 706. People V. Olcese (1903), 41 Mise. 102, 83 N. Y. Supp. 973. § 37. Proceedings to impea h preserved. The omia?ion to specify or affirm in this chapter any ground 14 Art. 2] GENERAL PROVISIONS [§§ 38-39 or forfeiture of a public office or other trust or special authority conferred by law, or any power conferred by law to impeach, re- move, depose or suspend any public officer or other person holding any trust, appointment or other special authority conferred by law, does not affect such forfeiture or power, or any proceeding authorized by law to carry into effect such impeachment, remo al, deposition or suspension. Derivation: Penal Code, § 723. Collyer v. Collyer (1888), 60 Hun, 422, 21 N. Y. State 119, 3 N. Y. Supp. 310. § 38. Application of this chapter to prior offenses. Nothing contained in any provision of this chapter applies to an offense committed or other act done, at any time before the day when this chapter takes effect. Such an offense must be punished according to, and such act must be governed by, the provisions of law existing when it is done or committed, in the same manner as if this chapter had not been passed; except that, whenever the punishment or penalty for an offense is mitigated by any provision of this chapter, such provision may be applied to any sentence or judgment imposed for the offense after this chapter takes effect. An offense specified in this chapter, committed after the beginning of the day when thia chapter takes effect, must be punished ac- cording to the provisions of this chapter and not otherwise. Derivation: Penal Code, § 719. People T. McTameney (1883), 30 Hun, 505, 13 Abb. N. C. 55, 1 N. Y. Or. 437, 66 How. 74; Matter of Hoffman (1883), 1 N. Y. Cr. 484; People v. Ravmond (1884), 06 N. Y. 38, aff'g 32 Hun, 123; People ex rel. Van Houten v. Sadler (1884), 97 N. Y. 146, 3 N. Y. Cr. 147; People v. Dowling (1884), 1 N. Y. Cr. 530; People v. Keeler (1885), 91) N. Y. 474, 3 N. Y. Cr. 354, 32 Hun, 689; People ex rel. McDonald v. Keeler (1885), 99 N. Y. 463, 3 N. Y. Or, 364, 32 Hun, 589; People v. Jaehne (1886), 103 N. Y. 198, 3 N. Y. St. 11, 4 N. Y. Cr. 478; People v. Beekwit'i (188?), 108 N. Y. 67, aff'g 45 Hun, 222; see People v. England (1895), 91 Hun, 152, 36 N. Y. Supp. 534; People ex rel. Lewisohn v. General Sessions (1904), 96 App. Div. 211, 89 N. Y. Supp. 364; see also Matter of Walker, 62 How. Pr S52: Matter of Hallenbeck, 65 How. 401 ; People v. Coffee, 62 How. Pr. 445. § 39. Military punishments preserved. This chapter does riot affect any power conferred by law upon any court-martial or other military authority or officer, to impose or inflict punishment upon offenders; nor any power conferred by law upon any public body, tribunal or officers, to impose or 15 §§ 40-411 GENERAL PROVISIONS [Art. 2 inflict punishment far a contempt ; nar any provisions of the laws relating to apprentices, bastards, disorderly persons, Indians and vagranis, except so far as any provisions therein are inconsistent wilh this ehapitr. JL>eriTatioms Penal Code, § 724. Matter of Riley (1884), 31 Hun, 612; People ex rel. McDonald v. Keeler (1885), 99 N. Y. 475, 3 N. Y. Cr. 354, rev'g 32 Hun, 5 3; People v. Clianiplin (1907), 120 App. Div. 509; Matter of McMahon, 64 How. Pr. 285, 1 N. Y. Cr. 58. § 40. Certain statutes continued in force. Nothing in this (iuapicr a^xiyiii^ any oi laie provisions of the following statutes; but such statutes are recognized as continuing in force, notwithstanding the provisions of this chapter; except so far as thty have been repealed or adected by subsrquent laws: 1. All acts incorporating municipal corporations, and acts amending acts of incorporation or charters of such corporation, or providing for the election or appointment of officers therein, or defining the powers and duties of such officers ; 2. All acts relating to emigrants or other passengers in vessels coming from foreio^i countries, except as provided in section fifteen hundred and sixty-one of this chapter ; 3. All acts for the punishment of intoxication or the suppression of intemperance or regulating the sale 6t disposition of intoxicating or spirituous liquors; 4. All acts defining and providing for the riunishment of of- fenses and not defined and made punishable bv this chantpr. Derivation: Penal Code, § 725, as ampn-'ed L. IS"" c'l. 3R4. § 1. SUBD. 1.— People V. Bernardo (1883), 1 N. Y. Ct. 245; Peotile v. Jae'ine (1886), 103 N. Y. 198, 193, 4 N. Y. Cr. 478, 128 U. S. 189, 6 N. Y. Cr. Rep. 237; People v. Moran (1890), 123 N. Y. 254, 33 N. Y. St. 308, 8 N. Y. Cr. 106, rev'g 54 Hun, 279, 7 N. Y. Supp. 582, 27 N. Y. S^ 2", 7 N. Y. Cr. 313. SUBD. 3.— People v. Myera (1884), 2 N. Y. Cr. 128, 95 N. Y. 223; People ex rel. Shorten v. Markell (1897), 20 Mise. 149, 45 N. Y. Supp. 904. SuBD. 4.— Matter of McMalion (1883), 64 How. Pr. 285, 1 N. Y. Cr. 58; People V. Rontey (1889), 117 N. Y. ''.24, aff'g 4 N. Y. Supp. 235, 6 N. Y. Cr. 249; People v. Paa;e (1889), 4 N. Y. Supp. 780, 7 N. Y. Cr. 7; Pen pie v. Van Houten (1895), 13 Miac. 603, 35 N. Y. Supp. 186; Roekwood v. OakfibJd, 2 N. Y. St. 331. § 41. Manner of prosecution and conviction. The manner of pro^'^cuting and convicting criminals is regulated by the code of criminal procedure. Derivation: Penal Code, § 8. People V. Beckwith (1888), 108 N. \. 73, 7 N. Y. Cr. 162. ic ■A-*'- 2-1 GENEEAL PKO VISIONS [§§42-43 § 42. Rule when act done in defense of self or another. An act, otherwise criminal, is justifiable when it is done to protect tie person committing it, or another whom he is bound to protect, from inevitable and irreparable personal injury, and the injury could only be prevented by the act, nothing more being done than is necessary to prevent the injury. Derivation: Penal Code, § £6. Shorter v. People (1849), 2 N. Y. ISIS, 4 Barb. 400; Wood v. Pbillips (J870), 43 N. Y. 152, rev'g 1 Lans. 421; Euloff v. People (1871), 45 N. Y. 213, 5 Lans. 261, 11 Abb. (N. S.) 245; Evera v. People (1875), 3 Hun, 716, 33 N. Y. 625; Sawyer v. People (1883), 91 N. Y. 667; People v. Mc arthy (1888), no N. Y. 316, aff'g 47 Hun, 491; People v. Lyons (1888), 6 N. Y. Cr. 105, note 119; People v. MeGrath (1888), 47 Hun, 325; People v. Carlton (18S9), 115 N. Y. 618, 623; People v. Johnston (1893), 139 N. Y. 358, 363; People V. Constantino (1S97), 153 N. Y. 24, 12 N. Y. Cr. 339; People v. Ken- nedy (1899), 159 N". Y. 349; People v. Shanley (1900), 49 App. Div. 56, 63 N. Y. Supp. 449; People v. Cantor (1902), 71 App. Div. 185, 75 N. Y. Supp. 688, 16 N. Y. Cr. 380; People v. Fiori (1908), 123 App. Div. 174, 108 N. Y. Supp. 410; see also Eowe v. United States, 164 U. S. 545; Harrington v. Peo- ple, 6 Barb. 607 ; Cory v. People, 45 Barb. 202 : Patterson v. People, 46 Barb. 625; Gyre v. Culver, 47 Barb. 592; People v. Lamb, 54 Barb. 342, 2 ICeyea, 360, 2 Abb. Pr. (N. S.) 148; People v. Austin, 1 Park, 154; People v. Cole, 4 Park, 35; Pfommer v. People, 4 Park, 558; Uhl v. People, 5 Park, 410; People • V. Hand, 4 Alb. L. J. 91; Morgan v. Durfee, 21 Alb. L. J. 215; People v. Gulick, Hill &, Denio, 129; People v. Minisci, 12 N. Y. St. 720; People v. Har- per, Kdm. Sel. Cos. 180. § 43. Penalty for acts for which no punishment is expressly prescribed. A person who wilfully and wrongfully commits any act which seriously injures the person or property of another, or which sr ri- ously disturbs or endansiers the public neaee or health, or which openly outrages public decency, for which no other punishment is expressly prescribed by this chapter, is guilty of a misd meanor; but nothing in this chapter contflired shall be so construed as to prevent any person from demanding an increase of wages, or from assembling arid using all lawful means to induce employers to pay such wages to all persons employed by them, as shall be a just and fair compensation for serviors renrlorort. ' rrrivation: Penal Code, § 675, in part, as amende l L. 1882, e'l. 384, § 1 : L. 1F91, eh. 327, § 1. For remainder of sa'd section, s-^-- § 720, pn'tt. See Penal Law, § 720; People v. Barondess (1801), 45 N. Y. St. 248, 8 N. Y. Cr. 376, revV 61 Hun, 577, 16 N. Y. Supp. 431, 41 N. Y. St. 65!), 8 N. Y. Cr. 234; Reynolds v. Fverett (1893), 67 Hun, 294, 22 N. Y. Supp. 306; Peopl« v. Most (1902), 171 N. Y. 423,- 16 N. Y. Cr. 55, aff'g 71 App. Div. 160, 75 N. Y. Supp. 501, 36 Misc. 130, 73 N. Y- ^lUnp. 220; People v. Wallace (1003), 85 App. Div. 170, F3 N. Y. Supp. 130, l7 N. Y. Cr. 132; People v. McDermott (1906), 111 App. Div. 380, 97 N. Y. Supp. 901, 20 N. Y. Cr. 45. 37 § 70] ABDUCTION [Arts. 3, 4 ARTICLE 3. (Added by L. 1921, ch. 101, in effect Sept. 1, 1921.) ABANDONMENT. 6BCTiO]y 50. Abandonment. § 50. Abandonment of pregnant woman. A man who abandons his wife, while she is pregnant and in destitute circumstances or liable to become a burden upon the public, is guilty of a felony. (^Added by L. 1921, ch. 101, in effect Sept. 1, 1921.) ARTICLE 4. ABDUCTION. Section 70. Abduction. 71. No conviction to be had on unsupported testimony. § 70. Abduction. A person who : 1. Takes, receives, employs, harbors or uses, or causes or pro- cures to be taken, received, employed or harbored or used, a female under the age of eighteen years, for the purpose of prostitution ; or, not being her husband, for the purpose of sexual intercourse; or, , without the consent of her father, mother, guardian or other person having legal charge of her person, for the purpose of marriage ; or, 2. Inveigles or entices an unmarried female, of previous c!:aste character, into a house of ill-fame or of assignation, or elsewhsre, for the purpose of prostitution or ssxual intercourse; or, 3. Takes or detains a female unlawfully against her will, with the intent to compel her, by force, menace or duress, to marry him, or to marry any other person, or to be defiled ; or, 4. Being parent, guardian or other person having legal charge of the person of a female under the age of eighteen years, consents to her taking or detaining by any person for the purpose of pros- titution or sexual intercourse ; Is guilty of abduction and punishable by imprisonment for not more than ten years, or by a fine of not more than one thousand dollars, or by both. Derivation: Penal Code, § 2C2, as amended L. 1SC4, ch. ^-3, § 2; L. 1SC6, ch. 31, § 1; L. 18D5, ch. 4C0, § 2; L. 1CC2, cj. S3. KcTiyon v. People (18SC), 26 N. Y. 206, 5 Park. 2ji; Kaufman v. People {1877), 11 Hun, 82; Scnicker v. People (18C2), 88 N. Y. 1C2; Peop'!; v, Seeley (1885), 101 N. Y. 6<2, 3 N. Y. Cr. 225, 37 Hun, 100'; Moot v. Moot (1885), 37 Hun, 288; People v. Plath (ICC:), ICO N. Y. 5C0, 4 N. Y. Cr. Eep. 54, rev'g 36 Hun, 454; Peo^le v. Powell (188C), 4 N. Y. Cr. 500: People V. Scott (1886), 5 N. Y. Cr. Rep. 61, aff'd 4 N. Y. Cr. Eep. 306; Pao-^'.e v. iShrp'iard (18C7), 44 Hun, 565, 5 N. Y. Cr. 136, 9 N. Y. St. 33; Peo-lo v. O'GulIivan (1887), 104 N. Y. 400, 5 N. Y. St. Rep. 702; Peo-le v. Gl'-ron (1880), 4 N. Y. Supp. 170, 6 N. Y. Cr. 390-, People v. B-own (1C03), 71 Hi:n, fiCl, 24 N. Y. S. Ill; P-oile v. Ra-oi-.e (-90C)', 54 Ati. D>. 'CS, 67 N Y. Supp. 23; People v. Butler (1900),''55 App. Div. 361,"66 N. Y. Supp. 851? 18 Art. 4j ABDUCTIOiN [§ 71 People V. Dickenson (1901), 58 App. Div. 202, 15 N. Y. Cr. 365, 68 N. Y. 8. 715; People v. Swasey (1902), 77 App. Div. 185, 78 N. Y. Supp. 1103; People T. Miller (1902), 70 App. Div. 592, 75 N. Y. Supp. 655; Conte v. Conte (19U3), 82 App. Div. 337, 81 N. Y. S. 923; People V. Ceiami (1905), 101 App. Div. 366, Ul N. Y. S. 1027, 19 N. Y. Cr. 80; People v. Smith (1906), 114 App. Div. 613, 100 N. Y. Supp. 259, 20 N. Y. Cr. 310; People v. Wolf (1906), 183 N. Y. 464, 19 N. Y. Cr. 462, rev'g 107 App. Div. 449, 95 N. Y. Supp. 264, 18 N. Y. Or. 464; People v. Spriggs (1907), 119 App. Div. 236, 104 N. Y. Supp. 639; see also State v. George, 93 N. C. 56; Carpenter v. People, 8 Barb. 603; Peopl* T. Cook, 61 Cal. 479; Com. v. Murphy, 165 Mass. 66, 30 L. R. A. 735; SaflFord T. People, 1 Park, 478; Reg. v. Kipps, 4 Cox Cr. Cas. 167; People v. Wha Lm Mon, 37 N. Y. St. 284, 13 N. Y. Supp. 767; Reg. v. Mycock, 12 Cox Cr. Ca». 28, 2 ling. Rep. 177; Reg. v. Prince, L. R. 2 Or. Cas. Res. 154, 1 Am. Crim. L. R. 1, 13 Eng. Rep. 385; Reg. V. Packer, 16 Cox Cr. Cas. 57, 37 Eng. Rep. SOU; People v. Parshall, 6 Park, 129; Lyons v. State, 62 Ind. 426, 1 Am. Crim. Rep. 28; State v. Gordon, 46 N. J. L. 432. § 71. (Am'd, igog.) No conviction to be had on unsup- ported testimony. No conviction can be had for abduction or compulsory marriage, upon the lesiimony of the female abducted or compelled, un- supported by other evidence. Derivation: Penal Code, § 283, as amended by L. 1886, ch. 663; L. 1909, i;^. 524. In effect May 27, 1909. See, also. Penal Law, SS 633, 2U13. .x9 §§ 80-81] ABORTIOJST [Art. 6 ARTICLE 6. ABORTION. Section 80. Definition and punishment of abortion. 81. Killing of child in attempting miscarriage. 82. Selling drugs or instruments to procure a miscarriage. § 80. Definition and punishment of abortion. A person who, with intent thereby to procure the miscarriage of a woman, unless tlie same is necessary to preserve the life ot ihe woman, or of the child with which she is pregnant, either: 1. Prescribes, supplies, or administers to a woman, whether pregnant or not, or advises or causes a woman to take any medi- cine, drug; or substance ; or, 2. Uses, or causes to be used, any instrument or other means. Is guilty of abortion, and is punishable by imprisonment in a state prison for not more than four years, or in a county jail for not more than one year. Derivation: Penal Code, § ?94. Lohman v. People (1848), 1 N. Y. 383, aff'g 2 Barb. 216; Evans v. People (1872), 49 N. Y. 86-87; Bradford v. People (1880), 20 Hun, 30!); Penpl- y. Vedder (1884), 98 I-T. Y. 630, 3 N. Y. Cr. T?ep. 32, aff'g 34 Hun, 480, 3 N. Y. Cr. Rep. 23; People v. Murphy (1886), 101 N. Y. 126, 3 How. Pr. (N. S.) 469, 4 N. Y. Cr. Rep. 95, rev'g 3 N. Y. Cr. Rep. 338; People v. Meyers (1887)i 107 N. Y. 671, 12 N. Y. St. 862, aff'g 5 N. Y. Cr. Rep. 120, 7 N. Y. St. Rep. 217; People v. Bliven (1889), 112 N. Y. 79, 20 N. Y. St. 486, 6 N. Y. Cr, 365, aff'g 14 N. Y. St. 495; People v. Phelps (1891), 133 N. Y. 269, 44 N. Y. St. 910, aff'g 61 Hun, 115, 39 N. Y. St. Rep. 598, 15 N. Y. Supp. 440; People v. McGongeal( 1892), 136 N.Y.62; People v. Van Zile (1894), 143 N. Y, 36S; Peo- ple v. O'Neill (1901), 15 N. Y. Cr. 391, 34 Misc. 285, 103 St. Rep. 618, 69 N. Y. S. 017; People v. Conrad (1905), 185 N. Y. 529, 19 N. Y. Cr. 263, 102 App. Div. 5r,G, 92 N. Y. S. 606; People v. Hoffman (1907), 118 App. Div. 862, 103 N. Y. S. 1000, 21 N. Y. Cr. 140; see also Montgomery v. State, 80 Ind. 338, 41 Am. Rep. 816; Sta'e v. GedicVe, 43 N. J. Law, 86; Dougherty v. People, 1 Colo. 517; Com. v. Drake, 124 Mass. 21; Reg. v. Cramp, 5 Q. B. D. 307; Rail- ing V. Com., 110 Pa. St. 100; Reg. v. Stett, 15 Can. L. J. 193; Swan v. People, 13 Week. Dig. 518, citing 66 Barb. 5G N. Y. 618, 45 N. Y. 1, 32 Baib. 321; State v. Fitzgerald, 49 Iowa. 260, 31 Am. Rep. 148; Watson v. Siate, 9 Tex. App. 237. § 81. Killing of child in attempting miscarriage. A pregnant woman, who takes any medicine, drug, or substance, '>0 Art. 6] ABORTION [§ 82 or uses or submits to tbe us© of any instrument or other means, with intent thereby to produce her own miscarriage, unless the same is necessary to preserve her life, or that of the child whereof she is pregnant, is punishable by imprisonment for not less than one year, nor more than four years. Derivation: Penal Code, § 295. feople V. Vedder (1884), 98 N. Y. 630, 3 N. Y. Cr. Rep. 23, aflf'g 34 Hun, 281, aff'g 3 N. Y. Cr. Rep. 32; People v. Miyevs (1887), 7 N. Y. Stite, 217, 6 N. y. Cr. 120, People v. Phelps (18!)2), 133 N. Y. 267, aff's; Gl Hun, 115, 15 N. Y. Supp. 440; People v. McGone.ral (1802), 136 N. Y. 62, 48 N. Y. St. 000; Bigelow v. Drummond (1904), 42 Misc. 616, 87 N. Y. Supp. 581. § 82. Selling drugs or instruments to procure a miscarriage. A person who manufactures, gives or sells an instrument, a medicine or drusr. or any other sutwfancp, with intent that the panic may be unlawfully used in procuring the miscarriage of a woman, is gnilt.y of a felony. Derivations Penal Code, S ^d7> ^^.1 ^§ 100-103] ADULTERY [Art. 8 ARTICLE 8. ADTTLTEBT. Sconoir 100. Adultery defined. 101. Adultery a misdemeanor. 102. Punishment for adultery. 103. Conviction can not be had on unsupported teatimo&y. § 100. Adultery defined. Adultery is the sexnal intercourse of two persons, either of whom is married to a- third i>erson. Derivation: Penal Code, § 280a, added L. 1907, eb. 583. See Penal ^aw, §i! 101, 103, also § 2010 as to rape in second degree. § 101. Adultery a misdemeanor. A person who commits adultery is guilty of a misdemeanor. DeriTation: Penal Code, S 2S0a, added L. 1907, ch. 683. § 102. Punishment for adultery. A person convicted of a violation of tliis article is punishable by imprisonment in a penitentiary or county jail, for not more than six months or by a fine of not more than two hundred and fifty dollars, or by both. Derivation: Penal Code, § 280b, added L. 1907, ch. 583. § 103. Conviction can not be had on unsupported testimony. A conviction under tLi^ article can not bs had on the uncor- roborated testimony of the prrson with whom Uie offense is charged to have been committed. Drri^ation: Penal Code, § 280a, added L. 1907, ch. 683. See Penal Lau, §5 100-101. 'An. iOl ADVEBTISINO [§§ 130-138 ARTICLE 10. ADVEBTISma ISection 120. Advertising to procure divorces. 121. Affixing advertisement to property of another, 122. Inserting unauthorized advertisement in newspapers and magft* zines. § 120. Advertising to procure divorces. Whoever prints, publishes, distributes or circulates, or causes to be printed, published, distributed or circulated any circular, pamphlet, card, hand bill, advertisement, printed paper, book, newspaper or notice of any kind offering to procure or to aid in procuring any divorce, or the severance, dissolution, or annulment of any marriage, or offering to engage, appear or act as attorney or counsel in any suit for alimony or divorce or the severance, dissolution or annulment of any marriage, either in this state or elsev/here, is puilty of a mis- demeanor. This section shall not apply to the printing or publishing of any notice or advertisement reouired or autjiorized by any law of this state. Derivation: Penal Code, S 148a, added L. 1902. ch. 203, § 1. People v. McCabe, 18 Colo. 186, 36 Am. St. Rep. 270. § 121. Affixing advertisement to property of another. A pprsOTi who places upon or affixes to, or cuses or procures to be placed upon or affixed to, real property not his own, or a rock, tree. wall, fence, or other structure thereupon, without the consent of the owner, any words, char- acters, or device, as a notice of, or reference to. any article, business, exhibi- tion, profession, matter or event, is punishable by imprisonment for not more th^n Fix months, or by a line of not more than two hundred and fifty dollars, or bv both. The placing or affixing of any words, chnracters, device, or notice, of fny article, business, or other thing, to or upon any property or place specified in this section is presumptive evidence thnt the pronrietor, vendor, or exhibitor thereof caused or procured the same to be so placed or affixed. Derivation: Penal Code, §§ 643-644. § 122. Inserting unauthorized advertisement in newspapers and magazines. Any person who, with intent to profit, directly or indirectly thereby, places or causes or produces an advertisement to be placed in or affixes or causes the same to be affixed to a newspaper without the consent of the publishers of said newspaper; or who directly or indirectly places or causes or procures an advertisement to be placed in or affixes or causes the same to be affixed to a magazine or periodical without the consent of the publisher of STifh mpi-n'^'ne or periodical, and in a way calculated to lead the readers thereof to believe that such advertisement was circulated by such publisher, is guilty of a misdemeanor. The placing of an advprt'sement, notice, ci'-cular, pamphlet, card, hardbill, printed notice of any kind in or the affixing thereof to a newspaper, magazine, or periodical is presumptive evidence that the person or persons or corpora- tion or corporations whooe name or names appear thereon as proprietor, advertiser, vendor, or exhibitor, or whose goods, wares, and merchandise are advertised therein, caused or procured the same to be so placed or affixed with intent to profit thereby. (Added by L. 1914, ch, 113, in effect Apr. 4, 1914.) 33 §§ 140-142] AGENTS ^Art 12 ARTICLE 12. AGENTS. Section 140. Agents must file statement of agency. 141. Failure tj make and file statement a misdemeanor. 142. Duty and fees of county clerk. 143. Belief of principal from liability for future acts of agent. § 140. Agents must file statement of agency. Any person now carrying on or conducting a general mercantile or manufacturing business within this state, or hereafter com- mencing such business at or in a fixd location, as a'gent or manager for another sha.ll, within thirty days after May sixteenth, eighteen hundred and ninety-three, or the commencement of such business, file a sworn statement., verified by such agent and principal, in the county clerk's office of the county within which said business is carried on, stating the nature of the business and the full name and residence of such principal. Derivation: Penal Code, § 363a (1), added L. 1803, cli. 708, J 1- O'Toole V. Garvin (1874), 1 Hun, 92; Wood v. Erie Ry. Co. (1878), 72 N. Y. 196, afi'g Hun, 648; McMurray v. Gage (1897), 19 App. Div. 505, 46 N. Y. Supp. 6U8; see also Swords v. Ownes, 43 How. Pr. 176; Rosenheim v. Rosenfield, 13 N. Y. Supp. 721; Barron v. Yost, 16 Daly, 441; Colm v. Gott- schalk, 16 N. Y. St. 818, 2 N. Y. Supp. 13. § 141. Failure to make and file statement a misdemeanor. Any person failing to make and file the statt^nient required by section one hundred and forty, shall be guilty of a misdemeanor. Derivation: Penal ( odp, § 303a(4), added L. 1893, cli. 708, § 1. See Penal Law, section 140. § 142. Duty and fees of county clerk. The county clerk shall keep a register of the names of such agents in alphab tical order, an-l of their principals, for which registering and filing be shall recc ive a, fee of one dollar ; and copies of such certificate and re'ristry certified by him and the affidavit of such publication shall be evidnce. Derivation: Penal Code, § 363a(3), added L. 1893, eh. 708, § 1. See Penal Law, section 140. Art. 121 AGENTS [§ 143 § 143. Relief of principal from liability for future acts of agent Any person or principal may be relieved from alL liability for the future act of such agent or manager by filing in the office of the county clerk where the original statement appointing such agent or manager is filed, a statement revoking such agent or managership, to take effect ten days after the filing thereof; provided he shall, at or before the date of such filing, serve either personally or by mail, in the manner prescribd by the code of civil procedure for service of papers in civil actions, a copy of such revocation statement on each person or firm with whom such principal shall have trans- acted any business through such agent or manager within six months previous to such filing. But failure to make service of such statement shall not invalidate such revocation except as to persons not so served, said statement to be acknowledged before an officer authorized to take acknowledgments of deeds and to be pub- lished in at least three consecutive issues of the newspaper pub- lished in the county and nearest to the place where the business of said a.?pnt or manager is carried on ; but if no newspaper is published in said county, then said statement shall be published in the newspaper published nearest to the place where such business shall l>e carried on. Bprivati^s': Penal Code, § 363a(2), added L. 1893, cli. 708, and amended L. 18!)5, ch. 890, § 1. See Penal Law, section 140. §§ 160-161] AKAECHY [Art. 14 ARTICLE 14. ANARCHT. Section 160. Criminal anarchy defined. 161. Advocacy of criminal anarchy. I(i2. Assemblages of anaicliists. 163. Permitting premises to be used for assemblages of anarchists. 164. Liability of editors and others. 165. Leaving s'^ate with intent to elude provisions of this article. 166. Witnesses' privilege. § 160. Criminal anarchy defined. Criminal anarchy is the doctrine that organized government should be overthrown by force or violence, or by assassination of the executive head or of any of the executive officials of govern- ment, or by any unlawful means. The advocacy of such doctrine either by word of mouth or writing is a felony. Derivation: Penal Code, § 468a, added L. 1902, ch. 371. Von Gerichten v. Stitz (1904), 94 App. Div. 130, 87 N. Y. Supp. 968. § 161. Advocacy of criminal anarchy. Any person who : 1. By word of mouth or writing advocate®, advises or t^^aches the duty, necessity or propriety of overthrowing or overturning organized government by force or violence, or by assassination of the executive head or of any of the executive otKciaJs of govern- ment, or by any unlawful means; or, 2. Prints, publishes, edits, issues or knowingly circulates, sells, distributes or publicly displays any book, paper, document, or ■written or printed matter in any form, containing or advocating, advising or teaching the_ doctrine that organized government should be overthrown by force, violence or any unlawful means; or, 3. Openly, wilfully and deliberately justifies by word of mouth or writing the assassination or unlawful killing or assaulting of any executive or other officer of the United States or of any state or of any civilized nation having an organized government because of his official character, or any other crime, with intent to teach, spread or advocate the propriety of the doctrines of criminal anarchy ; or, 4. Organizes or helps to organize or becomes a member of or Art. 14] ANAECHY [§§ 162-164 voluntarily assembles with any society, group or assembly of per- sons formed to teach or advocate such doctrine, Is guilty of a felony and punishable by imprisonment for not more than ten years, or by a fine of not more than live thousand dollars, or both. Derivation: Penal Code, § 468b, added L. 1902, cli. 371. Von Geiicliten v. Seitz (1904), 94 App. Div. 130, 87 N. Y. Supp. 988. § 162. Assemblages of anarchists. Whenever two or more persons assemble for the purpose of ad- •yocating or teaching the doctrines of criminal anarchy, as defined in section one hundred and sixty, such an assembly is unlawful, and every person voluntarily participating therein by his presence, aid or instigation, is guilty of a felony and punishable by im- prisonment for not more than ten years, or by a fine of more than five thousand dollars, or both. Derivatiom: Penal Code, § 468'', added L. 1902, ch. 371. § 163. Permitting premiF";s to be used for assemblages of anarchists. The owner, agent, superintendent, janitor, caretaker or occu- pant of any place, building or room, who wilfully and knowingly permits therein any assemblage of persons prohibited by section one hundred and sixty-two, or who, after notification that the premises are so used pei*mits such use to be continued, is guilty of a misdemeanor, and punishable by imprisonment for not more than two years, or by a fine or not more than two thousand dollars, or both. Derivation: Penal Code, § 468e, added L. 1002, ch. 371. § 164. Liability of editors and others. Every editor or proprietor of a book, newspaper or serial and every manager of a partnership or incorpoiated association by which a book, newspaper or serial is issued, is chargeable with the publication of any matter contained in such book, newspaper or serial. But in every prosecution therefor, the defendant may show in this defense that the matter complained of was published without his knowledge or fault and against his wishes, by another who had no authority from him to make the publication and whose act was disavowed by him so soon as known. Derivation: Penal Code, ! 468c, added L. 1902, eh. 371. 2/ §§ 165-1661 ANARCHY [Art. 14 § 165. Leaving state with intent to elude provisions of this article. A person who leaves the state, with intent to elude any provisioB, of this article, or to commit any act without the state, which ia prohibited by this article, or who, being a resident of this state, does any act without the state, which would be punishable by the provisions, of this article if committed within the state, is guilty of the same offense and subject to the same punishment, as if the act had been committed within this state. Derivation: Penal Code, § 461. § 166. Witnesses' privilege. No person shall be excused from attending and testifying, or producing any books, papers or other documents before any court or magistrate, upon any investigation, proceeding or trial, for a violation of any of the provisions of this article, upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture; but no person shall be prosecuted or subjected to any penalty or forfeiture for or on ac- count of any transaction, matier or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding. (Amsnded by L. 1920, oh. 27, in effect March 3, 1920.) - Derivation: Penal Code, § 469. 98 Art. 16] ANIMALS [§ 180 ARTICLE 16. ANIMAI.S. Section 180. Definitions. 181. Keeping a plane where animals are fought. 182. Instigating fights between birds and animals. 183. Officer may take possession of animals or implements used in fights among animals. 184. Disposition of animals or implements used in fights among animals. 185. Overdriving, torturing and injuring animals; failing to provide proper sustenance. 186. Abandonment of disabled animal. 187. Failure to provide proper food and drink to impounded animaL 188. Selling or offering to sell or exposing diseased animal. 189. Carrying animal in a cruel manner. 190. Poisoning or attempting to poison animals. 191. Throwing substance injurious to animals in public place. 192. Keeping milch cows in unhealthy places and feeding them with food producing unwholesome milk. 193. Transporting animals for more than twenty-four consecutive hours without unloading. 194. Kunning horses on highway. 195. Leaving state to avoid provisions of this article. 196. To whom fines and penalties are to be paid. § 180. Definitions. 1. The word " animal," as used in this article, 'does not include the human race, but includes every other living creature; 2. The wO'rd " torture " or " cruelty " includes every act, omis- sion, 6r neglect, whereby unjustifiable physical pain, suffering or death is caused or permitted ; 3. The words "impure and unwholesome milk" include all milk obtained from animals in a diseased or unhealthy condition, or which are fed on distillery waste, usually called " swill " or upon any substance in a state of putrefaction or fermentation. Derivation: Penal Code, § 669. People V. Cipperlv (188.5). 101 N. Y. 634, rev'g 37 Hun, 320, 4 N. Y. Cr. Eep. 69; People v. Flock (1888), 48 Hun, 277, 16 N. Y. St. ."JR.t:. T?uthprford V. Krause (1894). 8 MifC. .548, 29 N. Y. 8upp. 787; People v. Beattie (1904), 96 App Div. 389, 89 N. V. Snpp. 193; see bIso Comrs. v. Turner. 145 Mass. 300; People ex rel. Frif+t v. Daw, 32 N. Y. Snpp. 106, 65 N. Y. St. 162; T!"?. V. Brown, 24 Q. B. Div. 3.57, 41 Alb. L. J. 425. 5»q §§ 181-183] ANIMALS [Arfc.l6 § 181. Keeping a place where animals are fought. A person who keeps or ns€s, or is in any manner connected with, or interested in the managemfnt of, or receives money for the admission of any person to, a house, apartment, pit or place kept or used for baiting or fighting any bird or animal, and any o^vner or occupant of a house, apartment, pit or place who wilfully procures or parmits the same to ba used or occupied for such bait- ing or fighting, is guilty of a misdemeanor. Upon compiamt under oath or affirmation to any magistrate authorized to issue warrants in criminal cases, that the complainant has just and rea- sonable cause to suspect that any of the provisions of law relating to or in any wise affrcting animals are being or about to be violated in any particular building or place, such magistrate shall immediately issue and deliver a warrant to any person authorized by law to make arrrsts for such offenses., authorizing him to enter and search such building or place, and to arrest any person there present found violating any of said laws, and to bring such per- son before the nearest magistrate of competent jurisdiction, to be dealt with according to law. Derivation: Penal Code, § 66S, as amended L. 1888, ch. 144, $ 2. People V. Kloek (1888), 48 Hun, 275, 16 N. Y. St. 565. § 182. Instigating fights between bi.ds and anima!s. A person who sets on foot, instigates, promotes, or carrier on, or does any act as assistant, umpire, or principal, or is a witness of, or in any way aids in or engages in the furtherance of any fight between cocks or other birds, or dc^s, bulls, bears, or other animals, premeditated by any person owning, or having custody of such birds or animals, is guilty of a misdemeanor punishable by fine not less than ten dollars, nor more than one thousand dollars, or by imprisonment not less than ten days nor more than one year, or both. Derivatloa: Penal Code, § 664. § 183. Officer may take possession of animals or implements used in fights among animals. Any officer authorized by law to make arrests may lawfully take possession of any animals, or implements, or other property used or employed, or about to be used or employed, in the violation of any provision of law relating to fights among animals. He 30 Art. 16J ANIMALS [ § 184 shall atate to the person in charge thereof, at the time of sueh taking, his name anfl residence, and also, the time and place at which the application provided for by the next section will be made. Derivation: L. 1875, cli. 97, § 1. § 184. Disposition of animals or implements used in fights among animals. The officer, after taking possession of such animals, or imple^ ments, or other property, pursuant to the preceding section, shall apply to the megistrate before whom complaint is made tsgainst the offender violating such provision of law, for the order next hereinafter mentioned, and shall make and file an affidavit with Siuch magistrate, stating therein the name of the offender charged in sxich complaint, the time, place and description of the animals, implements or other property so taken, together with the name of the party who claims the same, if knoWn, and that the affiant has reason to believe and does believe, stating the grounds of such belief, that the same were used or employed, or were about to be used or employed, in such violation, and will establish the truth thereof upon the trial of such offender. He shall then deliver such animals, implements, or other property, to such mag- istrate, who shall thereupon, by order in writing, place the same in the custody of an officer or other proper person in such order named and designated, to be by him kept until the trial or final discharge of the offender, and shall send a copy of sueh order, without delay, to the district attorney of the county. The officer or person so named and designated in such oi'der, shall imme- diately thereupon assume such custody, and shall retain the same for the purpose of evidence upon such trial, subject to the order of the court before which such offender may be required to appear, until his final discharge or conviction. Upon the conviction of such offender, the animals, implements, or other property, shall be adjudged by the court to be forfeited. In the event of the acquittal or final discharge, without conviction, of such offender, siich court shall, en demand, direct the delivery of the property 8o held in custody to the owner thereof. Derivation: L. 1875, ch. 97, § 2, as amended L. 1875, ch. 246, $ I. m §§ 185-186] AlflMALS T^rt. 16 § 185. Overdriving, torturing and injuring animals; failure to provide proper sustenance. A person who overdrives, overloads, tortures or cruelly beats or unjustifiably injures, maims, mutilates or kills any a.uiuial, whether wild or tame, and whether belonging to himself or to another, or deprives any animal of necessary sustenance, food or drink, or neglects or refuses to furnish it such sustenance or drink, j>r causes, procures or permits any animal to be overdriven, over- loaded, tortured, cruelly beaten, or unjustifiably injured, maimed, mutilated or killed, or to be deprived of necessary food or dnnk, or who wilfully sets on foot, instigates, engages in, or in any way furthers any act of cruelty to any animal, or any act tending to produce such cruelty, is guilty of a misdemeanor. Nothing herein contained shall be construed to prohibit or inter- fere with any properly conducted scientific experiments or investi- gations, which experiments shall be performed only under the authority of the faculty of some regularly incorporated medical college or university of this state. Derivation: Penal Code, § 6S5; second paragraph, L. 1867, ch. 375, § 10. People V. Spec. Sess. (1875), 4 Hun, 441; Davis v. Society (1878), 75 N. Y. 362, 16 Abb. Pr. (N. S.) 73, aff'a: 6 Daly, 81; Warren v. Perry (1878), 14 Hun, 337; People v. Theobald (1885), 92 Hun, 182; Rutherford v. Krause (1894), 8 Misc. 547; Saunders v. Post Standard Co. (1905), 107 App. Div. 84, 86, 94 N. Y. Supp. 993; McCarg v. Burr (1906), 186 N. Y. 469, 106 App. Div. 275, 277, 94 N. Y. Supp. 675; see also People v. Tinsdale, 10 Abb. Pr. (N. S.) 374; Broadway Stage Co. v. Am. Soc, etc., 15 Abb. Pr. (N. S.) 61; PeoDle v. Brunell, 48 How. Pr. 435; Paine v. Bergh, 1 City Ct. Rep. 160; Ross's Case, 3 City Hall Rec. 191; Lachine's Case, 4 City Hall Rec. 26; Morris' Case, 6 City Hall Rec. 62; People v. Stokes, 1 Wheel. Cr. Cas. HI; Callaghan V. Society, lo Cox Cr. Cas. 101, 37 Eng. Rep. 813; Ford v. Wiley, 23 Q. B. Div. 203, 40 Alb. L. J. 270. § 186. Abandonment of disabled animal. A person being the owner or possessor, or having charge or custody of a maimed, diseased, disabled or infirm animal, who abandons such animal, or leaves it to die in a street, road or public place, or who allows it to lie in a public street, road or public place more than three hours after he receives notice that it is left disabled, is guilty of a misdemeanor. Any agent or officer of the American society for the pi'evention of cruelty to animals, or of any society duly incorporated for that purpose, or any police ofiicer, may lawfully destroy or cause to be destroyed any animal 32 Art. 16] ANIMALS [§ 187 found abandoned and not properly cared for, appearing in the judgment of two reputable citizens called by him to view Ihe same in his presence, to be glandered, injured or diseased past recovery for any useful purpose; or after such agent or officer has obtained in writing from the owner of such animal his consent to snch destruction. When any person arrested is, at the time of such arrest, in charge of any animal or of any vehicle drawn by or containing any animal, any agent or officer of said society or societies or any police officer may take charge of such animal and of such vehicle and its contents, and deposit the same in a safe place of custody, or deliver the same into the possession of the police or sheriff of the county or place wherein such arrest was made, who shall thereupon assume the custody thereof; and all necessary expenses incurred in taking charge of such property shall be a charge thereon. DeriTation: Penal Code, § 650, as amended L. 1888, clis. 144, 490; L. 1907, ch. 192, § 1. Saunders v. Post Standard Co. (1905), 107 App. Div. 84, 80, 94 N. Y. Supp. 903; Sahr v. Scholle (1895), 89 Hun, 42, 35 N. Y. Supp. 97; People v. Christy (1892), 8 N. Y. Cr. 483, 20 N. Y. Supp. 278. § 187. Failure to provide proper food and drink to impounded animal. A person who, having pounded or confined any animal, refuses or n^lects to supply to such animal during its confinement a sufficient supply of good and wholesome air, food, shelter and water, is guilty of a misdemeanor. In case any animal shall be at any time impounded as aforesaid, and shall continue to be without necessary food and water for more than twelve successive hours, it shall be lawful for any person, from time to time, and as often as it shall be necessary, to enter into and upon any pound in which any such animal shall be so confined, and to supply it with necessary food and water, so long as it shall remain so confined ; such person shall not be liable to any action for such entry, and the reasonable cost of such food and water may b-' collected by him of the owner of such animal, and the said animal shall not be exempt from levy and sale upon execution issued upon a judgment therefor. Derivation: Penal Code, § 657. All after first sentence is L. 1867, eh. 375, § 4. §§ 188-191] ANIMALS [Art. 16 § 188. Selling or offering to sell or exposing diseased animal. A person who wilfully sells or offers to sell, uses, exposes, or causes or per- mits to be sold, oflfered for sale, used or exposed, any horse or other animal having the disease known as g'anders or farcy, or other contagious or infec- tious disease dangerous to the life or health of human beings, or animals, or which is diseased past recovery, or who refuses upon demand to deprive of life an animal afiected with any such disease, is guilty of a misdemeanor. Derivation: Penal Code, § 658. Fisher v. Clark, 41 Barb. 329; Mills v. N. Y. & Harlem R. Co., 2 Eobt. 236; Fultz V. Wycoff, 25 Ind. 321; Eaton v. Winne, 20 Mich. 156, 4 Am. Hep. 377; Barnum v. Van Dusen, 16 Conn. 200 ; Mullett v. Mason, L. R. I. C. P. 559. § 188-a. Selling disabled horses. It shall be unlawful for any person holding an auctioneer's license know- ingly to receive or offer for sale or to sell at public auction, other than at a sheriff's or judicial sale under a court order, any horse which by reason ot debility, disease or lameness, or for any other cause, could not be worked in this state without violating the law against cruelty to animals. Any person violating any provision of this section shall upon conviction be punished by a fine of not less than five dollars nor more than one hundred dollars, or by imprisonment for not more than Fix months, or by both such fine and imprisonment. (Added by L. 1916, ch. 309, in effect April 25, 1916.) § 189. Carrying animal in a cruel manner. A person who carries or causes to be carried in or upon any vessel or vehicle or otherwise, any animal in a cruel or inhuman manner, or so as to produce torture, is guiHy of a misdemeanor. Derivation: Penal Code, § 659. § 190. Poisoning or attempting to poison animals. A person who unjustifiably administers any poisonous or noxious drug or substance to a, horse, mule or domestic cattle or unjustifiably exposes any such drug, or substance with intent that the same shall be taken by a horse, mule or by domestic cat'^le, whether such horse, mule or domestic cattle be the property of himse'f or another, is guilty of a felony, punishable by imprisonment in a state's prison, for not more than five years. A person who unjustifiably administers any poisonou"? or noxious drug or substance to an animal, other than a horse, mule or domestic cattle, or unjustifiably exposes any such drug or substance vrith intent that the same shall be taken by an animal, other thin a horse, mule or domestic cattle, whether such animal be the property of ^imself or another, is aruilty of a misdemeanor. (Amended by L. 1910, ch. 190, in effect Sept. 1, 1910.; Derivation: Penal Code, § 660. People V. Knatt ( 1898) , 156 N. Y. 302, ,13 N. Y. Cr. 92. § 191. Throwing substance injurious to animals in public place. A person who wilfully throws, drops or places, or causes to be tlirown, dropped or placed upon any road, hishway, street or public place, any ff'ass, nails, pieces of metal, or other substance which might wound, disable ot ir.jure any animal, is guilty of a misdemeanor. Derivation: Penal Code. 5 66^. People V. Sheridan, 1 N. Y. Supp. 61, 15 N. Y. St. 939. 34 Art. 16] ANIMALS [§§ 192-195 § 192. Keeping milch cows in unhealthy places and feeding them with food producing unwholesome milk. A person who keeps a cow or any animal for the production of milk, in a crowded or unhealthy place, or in a diseased condition, or feeds such cow or animal upon any food that produces impure or unwholesome milk, is punishable by a fine not less than fifty dollars, or imprisonment not exceeding one year, or by both. Derivation: Penal Cods, § 662. § 193. Transporting animals for more than twenty-eight con- secutive hours without unloading. A railway corporation, or an owner, agent, consignee, or person in charge of any horses, sheep, cattle, or swine, in the course of, or for transportation, who confines, or causes or suffers the same to be confined, in cars for a longer period than twenty-eight con- secutive hours, without unloading for rest, water and feeding, during five consecutive hours, unless prevented by storm or inevit- able accident, is guilty of a misdemeanor. In estimating such confinement, the time during which the animals have been confined without rest, on connecting roads from which they are received, must be computed. If the owner, agent, consignee, or other person in charge of any such animals, refuses or neglects upon demand to pay for the care or feed of the animals while so un- loaded or rested, the railway company, or other carriers thereof, may charge the expense thereof to the owner or consignee and shall have a lien thereon for such expense. (Amended by L. 1916, ch. 173, in effect Sept. 1, 1916.) Derivation: .Penal Code, § 663. Galloway v. Erie Railroad Co. (1907), 116 App. Div. 780, 102 N. Y. Supp. 25, 107 App. Div. 210, 214; Hastings v. New York, etc., E. Co., 6 N. Y. Supp. 837, 25 N. Y. St. 250. § 194, Running horses on highway. A person driving any vehicle upon any plank road, turnpike or public highway, who unjustifiably runs the horses drawing the same, or causes, or permits them to run, is guilty of a misdemeanor. Derivation: Penal Code, § 666, as amended L. 1902, ch. 266, § 1 ; L. 1904, ch. 539. People V. Patterson (1902), 38 Misc. 79, 16 N. Y. Cr. 508, 77 N. Y. Supp. 155; Harrington v. City of New York (1903), 40 Misc. 166, 81 N. Y. Supp. 667; People v. Ellis (1903), 88 App. Div. 474, 85 N. Y. Supp. 120; Johnson V. City of New York (1905), 109 App. Div. 821, 825, 96 N. Y. Supp. 754. § 195. Leaving state to avoid provisions of this artcle. A person who leaves this state with intent to elude any of the 35 § 196] ANIMALS [Art. 16 provis-ions of this article or to oommit any act out of this stata which is prohibited by them, or who, being a resident of this state, does any act without this state, pursuant to such intent, which would be punishable under such provisions, if committed within this state, is punishable in the same manner as if such act had been committed within this state. DerlTatiea: Penal Code, § 667. § 196. To whom fines and penalties are to be paid. All fines, penalties or forfeitures imposed or collected for a violation of the provisions of this article, or of any act for the prevention of cruelty to animals, now in force or hereafter passed, must be paid on demand to the American Society for the Preven- tion of Cruelty to Animals ; except where the prosecution shall bo instituted or conducted by a society for the prevention of cruelty to animals duly incorporated under the general laws of this state, in which case such fine, penalty or forfeiture must be paid on demand to such society. A constable or police officer must, and any agent or officer of any said societies may, summon or arrest, and bring before a court or magistrate having jurisdiction, any person offending against any of the provisions of this article. Any officer or agent of any of said societies may lawfully interfere to prevent the perpetration of any act of cruelty upon any animal in his presence. Any person who shall interfere with or obstruct any such officer or agent in the discharge of his; duty shall be guilty of a misdemeanor. Any of said societies may prefer a complaint before any court, tribunal or magistrate having jurisdiction, for ■ the violation of any law relating to or affecting animals and may aid in presenting the law and facts before such court, tribunal or magistrate in any proceeding taken. The officers and agents of all duly incorporated societies for the prevention of cruelty to animals or children are hereby declared to be peace officers within the provisions of section one hundred and fifty-four of the code of ■criminal procedure. (Appended by L. 1918, ch. 374, in effect 'Sept. 1, 1918.) Derivation: Penal Code, § 668, as amended L. 1888, chs. 144, 400. Am'er. Society v. City of Gloversville (1894), 78 Eun 40, 4 N. Y. St. 808, ' 25 Week. Dig. 229, 29 N. Y. Supp. 257; Fox v. Mohawk, etc.. Society (1 897), 20 Mis2. Officer of bank putting excessive number of its notes In circu- lation. 293. Officer or agent of banking corporation making guaranty or indorsement, in its behalf, beyond IJe icgai limit. 294. Bank officer overdrawing his account or ashing for or re- ceiving commissions or gratuities from persons procuring loans or making overdrafts of their accounts. 295. Receiving deposits in insolvent bank. 296. Unlavfful investments by officers of savings banks. 297. Misconduct by directors of moneyed corporations. 298. Misconduct by banks snd bankers. 299. Unlawful discount of bills of foreign banks. SOO. Misconduct by officers of banking department. 301. Using dies and plates of extinct state bank. 302. Unauthoriaed use of the term "bEnk." 303. False statements or rumors as to banking institutions. 304. Falsification of books, reports or statements of corporations subject to the banking law, by an officer, director, trustee employee or agent thereof. 305. Abstraction or misappropriation of money, funds or property, or misapplication of credit of corporations to which the banking law is applicable, by an officer, director, trustee, employee or agent thereof. I 290. Misconduct of officers, directors, trustees, or employees of banking corporations. A director of a corporation, organized under the laws of this state, having banking powers, who concurs in any vote or act of the directors of such corporation, or any of them, by which it is intended to make a loan or discount to any director of such cor- poration, or upon paper upon which any such director is liable or responsible to an amount exceeding tho amount allowed by stat- ute; or. Any director, trustee, officer or employee of any corporation to which the banking law is applicable who makes or maintains, or attempts to make or maintain, a deposit of such corporation's funds ■with any other corporation on condition, or with the understanding, express or implied, that the corporation receiving such deposit make a loan or advance, directly or indirectly, to any director, trnste'^, officer or employee of the corporation so niakinc^ or main- training or attempting to make or maintain such deposit; or, Any officer or employee of any corporation to which the bank- ing law is ariDlicnble who intentimiallv conceals from the direictora. or tnistees of such corporation a;nv discounts or loans made by it f>4. lArt. 26] BANKING [§§ 291-292 between the regular meetings of its board of directors or triistees, or the purchase of any securitiesor the sale of any of its securities during the same period, or knowingly fails to report to its board of directors or trustees when required to do so by law, all discounts or loans made by it and all securitirs purchased or sold by it be- tween the regular meetings of its board of directors or trustees; or, Any director, officer or employee of a bank or tnist company who makes any agreernent, express or implied, before or at the time of issuing a certificate of deposit, by which its holder may demand or receive payment thereof in advance of its maturity. Is guilty of a misdemeanor. Nothing in this section shall render any loan made by the directors of any such corporation, in violation thereof, invalid. (Amended by L. 1910, ch. 398, in effect June 6, 1910.) Derivation: Penal Code, § 595, as amended L. 1908, ehs. 133, 157; Penal Code, § 596. § 291. Sale or hypothecation of bank notes by officer. An officer or agent of any corporation having banking powers, who sells, or causes or permits to be sold, any bank notes of such corporation, or pledges or hypothecates, or causes or permits to ba pledged or hypothecated, with aiiy other corporation, association or individual, any such notes, as a security for a loan, or for any liability of such corporation, is punishable by imprisonment in a county jail not cxereding one year, or by a fine not exceeding five thousand dollars, or both. Derivation: Penal Code, § 597. Matter of Sayles (1903), 40 Misc. 135, 17 N. Y. Or. 234, 81 N. Y. Supp. .258. § 292. Officer of bank putting excessive number of its notes in circulation. An officer or aorent of any corporation having banking powers, who issues or puts in circulation, or causes or permits to b-s issued or put in circulation, the bank notes of such corporation to an amount, which, together with previous issues, leaves in circula- tion or outsta.nding a greatpr amount of notes than such corpora- tion' is allowed by law to i'ssue and cirfu^ate, is punishable by im- prisonmrnt in a county jail rot exeeedin? one year, or by a fine not exceeding five thousand dollars, or both. Dei-ivatlon: Penal Code, § 598. §§ 293-295] BANKING [Art. 26 § 293. Officer or agent of banking corporation making guar- anty or indorsement, in its behalf, beyond the legal limit. An oiEcer or agent of any banking corporation, who makes or delivers any guaranty or indorsement on behalf of such corpora- tion, whereby it may become liable on any of its discounted notes, bills or obligations, in a sum beyond the amount of loans and discounts which such corporation may legally m,ake, is guilty of a misdemeanor. Derivation: Penal Code, § 599. § 294. Bank officer overdrawing his account or asking for or recieiving commissions or gratui ies from persons procuring loans or making overdrafts of their accounts. An otKcer, director, agent, teller, clerk or employee of any bank, banking association, savings bank or trust company, who : 1. Knowingly overdraws his account with such bank, banking association, savings bank or trust company, and thereby obtains the money, notes or funds of any such bank, banking association, savings bank or trust company ; or, 2. Asks or receives, or consents or agrees to receive, any com- mission, emolument, gratuity or reward, or any promise of anj commission, emolument, gratuity or reward, or any money, prop- erty or thing of value or of personal advantage, for procuring or endeavoring to procure for any person, firm, or coporation, any loam from, or the purchase or discount of any paper, note, draft, check or bill of exchange, by any such bank, banking association, savings bank or trust company, or for permitting any person, firm or corporation to overdraw any account with such bank, banking assneialion, savings bank or trust company, Is guilty of a misdemeanor. DeriTation: Penal Code, 5 600, as aTreTided L, 1905, c'<. 248, § 1. People V. Upton (18P51, 38 Hun, 107. 4 N. Y. Cr. 4.'55; People v. O'Donnell (1887), 46 Hun, 360, 7 N. Y. Cr. 347; People v. Clements (1886), 5 N. Y. Cr. 197, 277, 42 Hun, 286. § 295. Receiving deposits in insolvent bank. An officer, agent, teller or clerk of any bank, banking association iir savings bank, and every individual banker or agent, and every private banker or agent and any teller or clerk of an individual banker, or of a private banker or any officer, agent or clerk of any corporation transacting any part of the business which a banking corporation is authorized by law to transact who receives any deposit, knowing that such bank or association or banker or corporation ie S6 Art. 26] BANKING [§§ 29G-29S insolvent, is guilty of a misdemeanor, if the amount or value of such deposit be less than twenty-five dollars; if the amount or value of such deposit be twenty-five dollars or over, such persoi! shall be guilty of a felony, punishable by imprisonment for nnt less than one nor more than five years, or by a fine of not less than five hundred nor more than three thousand dollars, or by both. (Amended by L. 1914, ch. 383, in effect April 15, 1914.) DeriTatlon: Penal Code, § 601, as amended L. 1902, ch. 148. People V. Moore (1885), 3 N. Y. Cr. 458; Cragie v. Hadley (1885), 99 N. Y. 132, aff'g 14 Abb. N. C. 409; Atkinson v. Rocliester Printing Co. (18S9), 114 N. Y. 168, aff'g 43 Hun, 167; Stapleton v. Odell (1897), 21 Misc. 94, 47 N. Y. Supp. 13; Hall V. Baker (1901), 66 App. Div. 135, 72 N. Y. Supp. 965. § 298. Unlawful investments by officers of savings banks. Any officer or trustee of a savings bank authorizing or making any investment of the funds of the bank in securities, not author- ized by law, is guilty of a misdemeanor. Derivation: Penal Code, § 602, as amended L. 1892, ch. 6G2, $ 21, and eh. 692, § 1. People V. Severance (1893), 67 Hun, 182, 22 N. Y. Supp. 91. § 297. Misconduct by directors of moneyed corporations. Every director of a moneyed corporation who : 1. In case of the fraudulent insolvency of such corporation, shall have participated in such fraud ; or, 2. Wilfully does any act as such director which is expressly forbidden by law, or wilfully omits to perform any duty imposed upon him as such director by law. Is guilty of a misdemeanor, if no other punishment is prescribed therefor by law. The insolvency of a moneyed corporation is deemed fraudulent unless its affairs appear upon investigation to have been admin- istered fairly, legally and with the same care and diligence that agents receiving a compensation for their services are bound, by law, to observe. DeriTation: Penal Code, § 6r3, as amended L. 1892, ch. 692, § 1. People V. Clements (1886), 5 N. Y. Cr. 277, 42 Hun, 286; People ▼. Georger (1905), 109 App. Div. Ill, 112, 95 N. Y. Supp. 790. § 298. Misconduct by banks and bankers. Any moneyed corporation or individual banker authorized to carry on the business of banking under the laws of this state who: 1. Receives, pays out, gives or offers in payment as money to 57 ^ 299] BANKING [Art 26 circulate, or who attempts to circulate as money, any bill, note or otiier evidence of debt issued or purporting to have been issued by any cot- poration or individual, situated or residing without this state, and which bill, note or other evidence of debt shall, upon any part thereof, purport to be payable or redeemable at any place or by any corporation or individual within this state; or, 2. Issues, utters or circulates, as money, or in any way, directly or indirectly, aids or assists in the issuing, uttering or circulating as money within this state, of any bank bill, note or other evidence of debt in the similitude of a bank note issued or purporting to have been issued by any corporation or individual situated or residing without this state; or procures or receives, in any manner whatever, any such bank bill, note or other evidence of debt with intent to issue, utter or circulate, or with intent to aid in issuing, uttering or circulating the same as money within this state ; or, 3. Directly or indirectly lends or pays out for paper discounted oi purchased any banlc bill, note or other evidence of debt, wliich is not received at par by such corporation or banker for debts due such cor- poration or banker ; or, 4. Issues or puts in circulation any bank bill or note of any such corporation or banker, unless the same shall be made payable on demand and vs^ithout interest, except bills of exchange on for- eign countries or places beyond the limits or jurisdiction of the United States, ard except certificates of deposit payable on presen- tation, with or without interest, to bearer or to the order of a per- son named therein, or certificates of deposit payable, with or vrith- out interest, to the order of a person named therein showing the amount of the deposit, the date of issue and the date when due; but such certificates shall not be issued except as representing money actually on deposit, Is guilty of a misdemeanor. Nothing in this section contained shall be construed to prohibit any such corporation or banker from receiving and paying out such foreign bank bills as they shall receive at par in the ordinary course of their business, or to prohibit such corporation or banker from receiving foreign notes from their dealers and customers in the regular and usual course of their business, at a rate of dis- count not exceeding that which is or shall be at the time fixed by law, for the redemption of the bills of the banks of tbis state at their agencies, or from obtaining from the corporations, associa- tions or individuals by which such foreign notes are made, the payment or redemption thereof. (Amended by L. 1910, ch. 398, in effect June 6, 1910.) DerlTatlon: Penal Code, § 604, as amended L. 18(12, cli. 692, § !. § 299. Unlawful dis'-ount of bi Is of foreign banks. Anv person, as'saciat.ion or corporation wilhin the state who, directly or indirectly, on any pretense whatever, procures or re- 5S Art. 26] BANKING [§§ 300-302 oeives or offers to receive from any corporation or person any bank bill or note or other evidence of debt in the similitude of a bank note issued or purporting to have been issued by any cor- poration or individual, situated or residing without this state, at a greater rate of discount than is or shall be at the time fixed by laiw for the redemption of *be bills of the banlts of this state at •iheir agencies, is guilty of a misdemeanor. Derivation: Penal Code, 5 605, as amended L. 1892, cli. 692, § 1. § 300. Misconduct by ofHcers of banking department. 'The superintendent of banks, or any olRcer in the banking de- partment who countevsigns bills or notes for any person or corpo- ration exceeding thg value of the interest bearing stocks of the state of New Inrk or of the United States, or other securities deposited witi such superintendent by such person or corporation on account thereof, is guilty of a felony, punishable by a fine of not less thai) five thousand dollars or by imprisonment for not less than fivp years, or by both. Derivation: Penal Code, § 606, as amended L. 1892, ch. 692, § 1. § 301- Using dies and plates of extinct state bank. Any person who uses tbe dies and plates of a state bank in the uip.nufaeture of notes and bills, after such bank has become a actional bank in pursuance of law, is guilty of a misdemeanor. Derivation: Penal Code, § 607, added L. 1892, ch. 692, § 1. § 302. Unauthorized use of term " bank." Any person engaged in banking in this state, not subject to the supervision of the superintendent of banks, and not required by law to report to sucb superintendent, who was not engaged in such banking before May twenty-third, eighteen hundred and eighty- five, who: 1. Uses an office sign at the place where such business is trans- acted, having thereon any artificial or corporate name, or other words indicating that such place or office is the place or office of a bank; or, 2. Uses or circulates any letter-heads, bill-heads, blank notes, blank receipts, certificates, circulars or any written or printed 59 §§ 303-304] BANKING [Art. 36 paper whatever, having thereon any artificial or corporate name, or other word or words indicating that such business is the busi- ness of a bank. Is guilty of a misdemeanor. Derivation: Penal Code, § 609, as amended L. 1892, ch. 692, 5 1. Hall V. Baker (1901), 66 App. Div. 131, 135, 72 N. Y. Supp. 965. § o03. False statements or rumors as to banking institutions. Any person who willfully and knowingly makes, circulates or trans- mits to another or others any statement or rumor, written, printed or by word of mouth, which is untrue in fact and is directly or by infer- ence derogatory to the financial condition or affects the solvency or financial standing of any bank, private banker, savings bank, banking association, building and loan association or trust company doing business in this state, or who knowingly counsels, aids, procures or induces another to start, transHiit or circulate any such statement or rumor, is guilty of a misdemeanor punishable by a fine of not more than one thousand dollars or by imprisonment for not more than one year, or both. (Added by L. 1913, ch. 211, and amended by L. 1914, eh. 112, in effect Apr. 4, 1914.) § 304. Falsification of books, reports or statements of cor> potations subject to the banking law, by an officer, director, trustee, employee or agent thereof. Any officer, director, trustee, employee or agent of any corporation to which the banking law is applicable who makes a false entry in any book, report or statement of such corporation with intent to deceive any officer, director or trustee thereof, or any agent or exam- iner lawfully appointed to examine into its condition or into any of its affairs, or any public officer, office or board to which such corpora- tion is required by law to report, or which has authority by law to examine into its condition or into any of its affairs, or who, with like intent, wilfully omits to make a true entry of any material par- Jiifa Art. 26] BANKING t§ 305 ticular pertaining to the business of such corporation in any book, report or statement of such corporation made, written or kept by him or under his direction, is guilty of a felony. (Added by IX 1912, ch. 208, in effect Sept. 1, 1912.) § 305. Abstraction or misaippropriation of money, funds or property, or misapplication of credit of corporations to which the banking law is applicable, by an officer, director, trustee, em* ployee or agent thereof. Any officer, director, trustee, employee or agent of any corpora- tion to which the banking law is applicable, who abstracts or will- fuF.y misapplies any of the money, funds or property of such cor- poration, or willfully misapplies its credit, is guilty of a felony. Nothing in this section shall be deemed or construed to repeal, amend or impair any existing provision of law prescribing a pun- ishment for any such offense. (Added by L. 1913, ch. 102, in effect Sept. 1, 1913.) 59b §§ 320-323J BAKKATEY lArt. 28 ARTICLE 28. BARRATRY. Section 320. Common barratry defined. 321. Barratry a misdemeanor. 322. Proof required to convict of barratry. 323. Interest no defense to prosecution for barratry. § 320. Common barratry defined. Common barratry is the practice of exciting groundless .maieiai proceedings. Derivation: Penal Code, § 132. Com. V. Mohn, 52 Pa. St. 243; Voorhees v. Dorr, 61 Barb. 680, 581; C-«m V. Tubls, 1 Cush. 2; Com. v. McCullock, 15 Mass. 227; Com. v. Davis, 11 Pick 432. § 321. Barratry a misdemeanor. Common barratry is a misdemeianor. Derivation: Penal Code, S 133. § 322. Proof required to convict of barratry. No person can be convicted of common barratry, except upon proof that he has excited actions or legal proceedings, in at least three instances, and with a corrupt or malicious intent to vex and annoy. Derivation: Penal Code, § 134. Voorhees v. Dorr, 51 Barb. 580, 581. § 323. Interest no defense to prosecution for barratry. Upon a prosecution for common barratry, the fact that the de- fendant was himself, a party in interest or upon the record to any action or legal proceeling complained of, is not a defense. Derivation: Penal Code, § 135. 60 Art. 301 BIGAMY [§§ 340-34-i ARTICIiE 30. BIGAMY. Section 340. Definition and punishment of bigamy. 341. Exceptions. 342. In what county indictment for bigamy may be found; place of trial. 343. Punishment of consort. § 340. Definition and punishment of bigamy. A person who, having a husband or wife living, marries another person, is guilty of bigamy and is punishable by imprisonment in a penitentiary or state prison for not more than five years. Derivation: Penal Code, § 2<)8. Hayes v. People (1862), 25 N. Y. 390, 24 How. Pr. 452, 5 Park, 325, 15 Abb. 163; Van Voorhis v. Brintnall (1881), 86 N. Y. 18, 40 Am. Rep. 505. Tev'g 23 Hun, 264; Thorp v. Thorp (1882), 90 N. Y. 602; People v. Chase (1882), 28 Hun, 310, 18 Week. Dig. 143; People v. Weed (1883), 29 Hun, 628, 1 N. Y. Cr. 349, aff'd 96 N. Y. 625; Moore v. Hegeman (1883), 92 N. Y. 521, 44 Am. Rep. 408, aff'g 27 Hun, 68; People v. Crawford (1891), 62 Hun, 160, 16 N. Y. Supp. 575, 10 N. Y. Cr. 59, afTM 133 N. Y. 535; Price V. Price (1891), 124 N. Y. 589, rev'g 33 Hun, 76; see also Miles v. United States, 103 U. S. 304, 4 Lawson Defenses, 50, 23 Alb. L. J. 326; Holbrook v. State, 34 Ark. 511, 36 Am. Rep. 17; Dumas v. State, 14 Tex. Ct. App. 464, 46 Am. Rep. 241, 245; People v. Humphrey, 7 Johni 314; Phelan's Case, 3 C. H. Rec. 91 ; People v. Wigham, 1 Wheel. Cr. Cas. 116; Phelan's Case, 6 C. H. Rec. 91; Coleman's Case, 6 C. H. Rec. 3; Steer's Case, 2 C. H. Rec. 1 U ; Walworth's Case, 1 City Hall Rec. 171; People V. Brown, 34 Mich. 339, 22 Am. Rep. 531; People v. Merrill, 2 Park, 590; Johnson v. Com., 86 Ky. 122; People v. Mosher, 2 Park, 195. § 341. Exceptions. The last section does not extend: 1. To a person whose former husband or wife, has been absent for five years successively then last past, without being known to hiHl or her within that time to be living, and believed by him or her to be dead ; or, 2. To a person whose former marriage has been pronounced void, nr annulled, or dissolved, by the judgment of a court of com- petent jurisdiction, for a cause other than his or her adultry ; or, 6i §§ 343-343] ' BIGAMY [Art. 30 3. To a person wlio, being divorced for his or her adultery, may be permitted to marry agaiii under the proviSiOus of section eight of the domestic relations law; or, 4. To a person whose former husband or wife has bpen sen- tenced to imprisonment for life. (Amended by L. 11)15, di. 364. In effect April 2G, 11)15.) Oerlvation! Penal Code, § 299. Fordham v. Gouverneur Village (1P96), 5 App. Div. 565, 39 N. Y. Supp. 396; Karstens v. Karstens (1S9S), 29 App. Div. 235 note, 45 N. Y. Supp. 966, 51 N. Y. Supp. 795; Czech v. Bean (1901), 35 Misc. 729, 72 N. Y. Supp. 402; Safford v. Safford, 31 Abb. N. C. 74. Stthd. 1.— People v. Meyer, 8 N. Y. St. 257; People v. Meyer, 10 N. Y. St. 257; People v. Teilen, 58 Cal. 218, 41 Am. Rep. 258; Tlie Queen v. Folsom, 23 Q. B. Div. 168, 40 Alb. L. J. 250. Snbd. 2.— Fleming v. People ( 1863 ) , 27 N. Y. 329, aff'g 5 Park, 353 ; Gal- laglian v. People, 1 Park, 378; Baker v. People, 2 Hill, 325. Snbd. .3.— People v. Baker (1879), 76 N. Y. 78, 32 Am. Eep. 274, rev'g 15 Hun, 256; People v. Faber (1883), 1 N. Y. Cr. 115, 92 N. Y. 146, 44 Am. Rep. 357, rev'g 29 Hun, 320; People v. HDvey, 5 Barb. 117. § 342. In what county indictment for bigamy may be found ; place of trial. An indictment for bigamy may be found in the county in which the defendant is arrested, and the like proceedings, including the trial, judgment, and conviction, may be had in that county, as if the offense were committed therein. Derivation: Penal Code, § 30O. King v. People (1875), 5 Hun, 297; Collins v. People, 4 Th. k C. 77. § 343. Punishment of consort. A person who knowingly enters into a marriage with another, which is prohibited to the latter by the foregoing provisions of this article is punishable by imprisonment in a penitentiary or state prison, for not more than five years, or by a fine of not more than one thousand dollars, or both. Derivation: Penal Code, § 301. Sauaer v. People (1876), 8 Hun, 302; Blake v. Everman (1890), 56 Hun, 454, 10 N. Y. Supp. 74; HoUister v. Valentine (1902), 69 App. Div 688, 78 N. Y. buyy. 1X6. Art 32] BILLS OF LADING, ETC. [§§ 360-361 ARTICLE 32. BILI.S OF LADING, RECEIPTS AND VOUCHERS. S>cnON 360. Fictitious bills of ladincr, receipts and voucliers. 361. Offenses by p'pe-line corporations. 362. Erroneous bills of lading or receipts, issued in good faith. excepted. 363. duplicate receipts must be marked " duplicate." 364. Se.'ling, hypothecating or pledging property received for trans- pirtation or storage. ?65. Bill of lading or receipt issued by warehouseman must be can- celed on redelivery of the property. 366. Propeity demanded by process of law. 367. Penalty for failure to issue bill of lading. § 360. Fictitious bills of lading, receipts and vouchers. A person who: Being the master, o'vner or agent of any vessel, or officer or agpnt of any railway, e.Tpress or transportation company, or other- wise being or representing any carrier, delivers any bill of lading, receipt or other voucher, by which it appears that merchandise of any kind has beeu. shipped on board a vessel, or delivered to a railway, express or transportation company,, or other carrier, unless the same has been so shipped or delivered and is at the time actually under the control of such carrier, or the master, owner or agent of such vessel, or of some officer or agent of such company, to be forwarded as expressed in such bill of lading, receipt or voucher. Is guilty of a misdemeanor, punishable by imprisonment not exceeding one year, or by a fine not exceeding one thousand dol- lars, or by both. Derivation: Penal Code, § e29, as amended L. 1892, eh. 692, § 1. Mairs v. Railroad Co. (1002), 73 App. Div. 265, 273, 76 N. Y. Supp. 838, aff'd 175 N. Y. 409; First Nat. Bank v. Dean, 17 N. Y. Supp. 376, 27 Abb. N. C. 284. § 361. Offenses by pipe-line corporations. A pipe-line corporation, or a person being the officer, agent, manager or representative thereof, ^who: 1. Accepts, makes or issues any receipt, certificate or order of any kind for any commodity, unless the commodity represented is actually at the time in the possession of the corporation ; or, 63 ^§ 362-364] BILLS OF LADING, ETC. [Art. 32 2. Delivers to any person any petroleum or other commodity received for transportation by such corporation without the pre- sentation and surrender of all vouchers, receipts, orders or certifi- cates that have been issued or accepted for the same ; or, 3. Having parted virith the possession of any commodity and having received therefor an order, voucher, receipt or certificate, shall reissue the same,, or shall not cause it to be cancelled by the virord " cancelled " stamped or printed kgibly across the face thereof, and to be filed and recorded by such corporation, as pro- vided by law, Is guilty of a misdemeanor. Derivation: Penal Code, § 628, as amended L. 1892, cli. 692, § 1. § 362. Erroneous bills of lading or receipts, issued in good faith, excepted. No person can be convicted of an offense under the last two sections, for the reason that the contents of any barrel, box, case, cask or other vessel or package mentioned in the bill of lading, receipt or other voucher did not correspond with the description given in such instrument of the merchandise received, if such description corresponds substantially with the marks, labels or brands upon the outside of such vessel or package, unless n ap- pears that the defendant knew that such marlcs, labels or brands were untrue. Derivation: Penal Code, § C30. § 363. Duplicate receipts must be marked " dupHcate." A person mentioned in sections three hundred and sixty' nnd throe hundred and sixty-one, who issues any second or dunlicate receii)t or voucher, of a kind sprcificd in those sections, nt a time while a former receipt or vouchor for the marchandise si^ci- fied'in such second receipt is outstanding and uncanceled, without writing across the face of the same the word " duplicate." in a plain and legible manner, is punishable by imprisonment not ex- ceeding one year, or by a fine not exceeding one thousand dollars, or by both. Dciivation: Penal Code, § 031. § 364. Selling, hypothecating or pledging property received for transportation or storage. A person mentioned in sections three hundred and sixty and 64 Art 32.1 BILLS OF LADING, ETC. [§§ 365-367 three hundred and sixty-one, who sells or pledges any merchandise for which a bill of lading, receipt or voucher has been issued by him. without the consent in writing thereto of the person holding such bill, receipt or voucher, is punishable by imprisonment not ( xceeding one year, or by a fine not exceeding one thousand dollars, or by both. Derivation: Penal Code, § 632. § 365. Bill of lading or receipt issued by warehouseman must be canceled on redelivery of the property. A person mentioned in section three hundred and sixty, who Hun, 80, 5 N. Y. Cr. 55; People v. Page (1889). 4 N. Y. Supp. 780, 7 N. Y. Cr. 5; People v. Hart (1901), 35 Miac. 188, 71 N. Y. Supp. 492; People ex rel. Corkran v. Hyatt (1902), 172 N. Y. 176, 187, rev'g 88 Art. 40] BUSINESS AND TKADE [§§443,444 72 App. Div. 629, 76 N. Y. Supp. 1026; People v. Rothstein (1904), 180 N. Y. 148, aff'g 95 App. Div. 292, 88 N. Y. Supp. 622, 18 N. Y. Cr. 449, 42 Misc. 124, 18 N. Y. Cr. 66, 85 N. Y. Supp. 1076; People v. Snyder (1906), 110 App. Div. 699, 700, 97 N. Y. Supp. 469; Pc-opk- v. Levin (1907), 119 App. Div. 233, 104 y. Y. Supp. 647, 21 N. Y. Cr. 182. g 443. Tickets issued by People's Institute not transferable. It shall be unlawful for any person or corporation to buy, sell or otherwise transfer, or raceive by transfer, for a consideration, any tieltet, contract rr memornuda issued by the corporation or association Irnown as the People's I:.sti- tute entitling a person or persons to a reduced fee for admission to any dramatic or other performance or entertainment. A person or corporation violating tUe pro- vision of this section is guilty of a misdemeanor. (Added by L. 1909, ch. 424, in effect Sept. 1, 1909.) § 444. Discriminations by exclians:es or members. No exchange, voluntary association, or corporation, heretofore or hereafter formed or organized, for the purpose of affording to Its members, or to others, facilities for dealing or trading in stocks, bonds or other securities, or in com- modities, shall make or enforce any by-law, rule, regulation, resolution or agree- ment the purpose or result of which shall be to forbid or prevent the members of such exchange, voluntary' association, or corporation, from dealing, at the regular rates of commission, with or for the members of any other exchange, voluntary association, or corporation formed or organized for like purposes, nor shall any such exchange, voluntary association, or corporation penalize or dis- cipline or attempt to penalize or discipline its members, or any of them, for an infraction of any such by-law, rule, regulation, resolution or agreement. Any corporation violating any of the foregoing provisions, and any person participat- ing in the acts herein forbidden to be done by nny exchange, voluntary association, or corporation, and any member of any such exchange, voluntary association, or corporation refusing to deal with ov for any customer as above provided, on the ground that said customer is a member of some other exchange, voluntary association or corporation of like character. Is guilty of a misdsmaanor. (Added by L. 1913, ch. 477, In effect Sept. 1, 1M3.) § 444. Manufacture and sale of mattresses. Any person who: 1. Manufactures, sells, offers for sale or possesses with Intent to sell any mattresses not properly branded or labeled, as required by the general business law, or 2. Manufactures, sells, offers for sale or possesses with Intent to sell any ninttress which is falsely branded or labeled, or 3. Uses in the manufacture of mattresses any cotton or other material which has been used as a mattress, pillow or bedding In any public Or private hospital, or which has been used by any person having an infectious or contagious d!s- ea.se, shall be guilty of a misdemeanor, punishable by a fine of not more than five hundred dollars or by imprisonment for not more than six months or by both. (Added by L. 1913, ph. 503. in effect Jan. 1, 1914.) § 444. Contracts for the use of the streets for haclc stands. The owner, lessee or other occupant of any real property, or any other per- son, copartnership or corporation, who shall make or enter into any agreement, contract or arrangement whatsoever whereby the right is attempted to be granted or is granted to any person, copartnership, association or corporation to use any portion of any public highway, street, avenue, boulevard, park or other public preperty owned by the state of New York or any municipality therein for the purpose of permitting any vehicle to stand while awaiting passengers for hire or as a private hack stand, and any owner, lessee or other person, copartnership or corporation who shall make or enter into any contract or arrangement for the payment of or receives thereby any sum of money, percentage or profits or other thing of value under any such contract, agreement, consent or arrange- ment for such use of such public property as such private hack stand, p''"Il be guilty of a misdemeanor. (Added by L. 1913, ch. 813, in effect Dec. 17, 1913.) g 445. Marlcing of articles of merchandise made of platinum. Any person, firm, corporation or asso"latlon or any member, officer, employee or agent thereof, who makes, sells or offers to sell or dispose of, or h.-^s in his or its possession with intent to sell or dispose of, any article of merehard'se, composed wholly or In part of any metal, with the word "platinum" or any abbreviation, contraction or colorable imitation of said word "platinum," marl^ed, stamped or printed thereon, or on any box, package, cover or inclosure or on any tag, card, label, bill, statement, invoice or paper attached to or used in con- aeetlon with or referring to said article, unless nine hundred twenty-five one thousands of the comnonent parts of the metal, appearing or purporting to be platinum, of which said article consists, are of either the pure metal and element platinum, alone or In con.lunction with iridium, osmium, palladium, rhofl'um art! ruthenium or these metals in combination, is guilty of a misdemeanor, (.\ddcd by L. 1920, ch. 245, in effect Sept. 1, 1920.) 89 §§ 460-463] CANALS [Art. 43 ARTICLE 42. CASA-LS. Section 400. nrlivornR fnlse hill of lading to canni collpctor. 4lil. Weijjiiiiiastnr makins false entry of weiglit ut canal boat. 4ti2. Canal ofliwr cnnccaling frauds upon tlie revenue. 4fi:{. WllfnII injuries to t!ie canals. 4(i4. Drawinj; wiiler frnm canals. 465. CaiiMl ullicer accepting bribe to allow water to be drawn from cunuU. § 460. Delivering false bill of lading to canal collector. A person whose duty it is to deliver to any collwtor of tolls npon any of tlie cannls bolongin!* to tliis state, a bill of lading of any property transported upon such canal, who delivers a false bill of lading as true, or makes or signs a false bill of lading, intending it to be delivered as true, knowing such bill to be false, is punishable by imprisonment in a state prison not exceeding two years, or by a fine not exceeding; three times the value of the property omitted in such bill, or both. Derivation: Penal Code, i 47(5. navia V. Bemis (ISOO), 40 N. Y. 453; Fire Department v. Stetson, 14 Daly, 130. § 461. Weighmaster making false entry of weight of canal boat. A \veia:l)master upon any of the canals belonging to this state, and a clerk of such weighmaster, who makes a false entry of the weight of any boat, or carTO of any boat, navigating such canal, or whr> makes a false certificate of the lis^ht weight of any boat, knnwin:^ such entry or certificate to be false, is guilty of a mis- denipannr. Derivation: Penal Code, § 477. § 462. Canal officer concealing frauds upon the revenue. A public officer or agent eniployecl by the people of this state in relation to the canals b'^lonorinT to this ptate. who knows, or has good reason to believe that any fraud upon the revenues of the canals has been committed or attempted, and who omits to dis- close I lie same, and en'^orce the penalties therefor, if within his power, is snilty of a misdrmeanor. Derivation: Penal Code. § 47S. § 463. Wilful injuries to the canals. A person who, without authority of law, wilfully inflicts an ini'nry upon any of the canals belongim; to this state, or anv side- cut, feeder, rcrervoir or other work^ ponriert-d with the canal sys- tem, or disturbs or injures any of the boats, locks, lights, litrht- honses, bcacors, buoys, brido; s, buildings or machinery or orhni works or erections connected with such canal sys-tem and in which no Art. 42] CAIfALS [§§ 464^66 the people of the state have an interest or without authority, oper- ates or attempts to operate the machinery or apparatus on or con- nected with any lock, bridge or dam, or opens or attempts to open any gate for the passage of water tlirough or from any such canal, side-cut, feeder or reservoir, is guilty of a felony. (Amended by L. 1915, ch. 498. In effect May 3, 1915.) BeriTation: Penul Code, § 479. Sipple V. State (1885), !)0 N. Y. 2S9, 16 Abb. N. C. 434; People v. O'Con- nor (inoO), 31 Misc. G68, CG N. Y. Supp. 12G; People t. Manalian (1001), Ol App. Div. 75, 70 N. Y. Supp. 108, 15 N. Y. Cr. 431. § 464. Drawing water from canals. A person who draws water from any canal in this state, or from a feeder or reservoir of any canal, during the season of navigation of the canal, and to the detriment or injury of the navigation thereof, without authority of law, is punishable by imprisonment in a county jail not less than one year, and by a fine not less than one thousand dollars. Derivation: Penal Code, § 480. Robinson r. Cliamberlain (18C6), 34 K Y. 3S9; Sipple t. State (I8S5), 00 N. Y. 2£9, 16 Abb. N. C. 434; see also Varick v. Smith, 5 Paige, 130; Lynch v. Stone, 4 Den. 356; Ex parte Miller, 2 Hill, 418. § 465. Canal officer accepting bribe to allow water to be drawn from canals. A public officer or agent employed by the people of this state in relation to the canals belonging to the state, or a contractor for canal repairs, or person having charge of any canal, or any part thereof, or of any lock, waste weir, feeder or other work belonging thereto, or being employed thereon, who asks, or accepts or prom- ises to accept any bribe as an inducement to permit water to be drawn from a canal, feeder or reservoir in violation of the last section; and a person who gives, or offers or promises to give to any officer or person above mentioned, any bribe as an inducement to him to permit water to be drawn from any canal, feeder or resei-voir in violation of this section, is guilty of a misdemeanor. Berivation: Penal Code, | 481. §466. A person who, without authority, cuts, removes, causes to be removed or aids in removing from any lands belonging to this state for canal purposes, any tree, timber or growing- hay, or removes or causes to be removed from such lands, any rock, stone, sand or gravel or any materials found in natural deposit, or who, without authority, erects, or enters upon such land for the purpose of erect- ing, any house, shed, building or structures of any kind or nature on such canal lands, is ginlty of a mi;demeanor. (Added by L. 1915, ch. 491. In effect May 3, 1915.) 91 § 4801 CHILDREN |Art. 44 ARTICI^E 44 CHIIJlKEIf. Section 480. Abandonmeilt of children. 481. Abandonment of child under fourteen years. 482. Unlawfully omitting to provide for child. 483. Endangering life or health of child. 484. Permitting children to attend certain resorts, 485. Certain employment of children prohibited. 486. Prohibited acts; destitute children. 487. Children's courts. 488. Sending messenger boys to certain olaces. 489. Furnishing minors in reformatories with tobacco prohibited. 490. iDuty of officers. 191. Fines to be paid to society for prevention of cruelty to childrea 492. Concealing birth of child. 493. Taking apprentice without consent of guardian. § 480. Abandonment of children. A parent or other person charged with the care or cnstody for nurture or education of a child under the age of sixteen years, who abandons the child in destitute circumstances and wilfully omits to furnish necessary and proper food, olothing or shelter for such child is ^ilty of felony, punishable by imprisonment for not more than two years, or by a fine not to exceed one thou- sand dollars, or by Ix-th. In case a fine is. imposed the same may be applied in the discretion of the court to the support of such child. Proof of the abandonment of such child in destitute cir- cumstances and omission to furnis-h necessa.ry and proper food, clothing or shelter is priina facie evidence that .such omission is wilful. The provisions of section twenty-four hundred and forty- five prohibiting the disolof'ure of confidentiail communications between husband and wife s\M\ not apply to prosecutions for the offense here defined. ,A previous conviction of felony or misde- meanor s.hall not prevent the court from suspending sentence upon a conviction under this section, or from arbitrarily fixing the limit of imprisonment, or fine, in case imprisonment or fine is imposed upon conviction herein. Nothing in this section shall be deemed or construed to repeal, amend, impair or in any manner affect the provisions of sections four hundred and eighty-one, four hundred and eighty-two and 99 Art. 44] CHILDREISr [§§ 481-482 four hundred and eighty-thiree of this chapter or any other exist- ing provisions of law relating to abandonment or other acts of cruelty to children. berlTatiom: Penal Code, § 287a, added L. 1905, ch. 168, § 1. New mat- ter, L. 1905, ch. 168, § 2. People V. Joyce (1906), 112 App. Div. 717, 98 N. Y. Supp. 863, 20 N. Y. Cr. 107. § 481. Abandonment of child under fourteen years. A parent, or other person having the oare or custody, . for nurture or education, of a child under the age of fourteen years, who deserts the child in any place, with intent wholly to abandon it, is punishable by imprisonment in a state prison for not more than seven years. Derivation: Penal Code, § 287, as amended L. 1903, cli. 376, § 1; L. 1892, ch. 325, i 2. Bayne v. People (1878), 14 Hun, 181; People ex rel. Douglass v. Naehr (1883), 30 Hun, 461; People v. Trank (1G03), 88 App. Div. 294y 85 N. Y. Supp. 55, 18 N. Y. Cr. 42; People v. Joyce (1906), 112 App. Div. 717, 720. 722, 98 N. Y. Supp. 863, 20 N. Y. Cr. 104. § 482. Unlawfully omitting to provide for child. A person who: 1. Wilfully omits, without lawful excuse, to perform a duty by law imposed upon him to furnish food, clothing, shelter or med- ical attendance to a minor, or to make such payment toward its maintenance as may have been required by the order of a court or magistrate when such minor has been committed to an insti- tution ; or, 2. Not being a superintendent of the poor, or a superintendent of alms-houses, or an institution duly incorporated for the purpose, without having first obtaned a license in writing so to do from the board of health of the city or town wherein such females or children are received, boarded or kept, erects, conducts, 'estab- lishes or maintains any maternity hospital, lying-in asylum where females may he received, cared for or treated during preamancy, or during or after delivery; or receives, boards or keeps any nusing children, or any children under the age of twelve years not his relatives, apprentices, pupils or wards without legal com- mitment; or, 3. Being a midwife, nurse or other person having the eare of 93 § 482] CHILDEEN" [Art. 44 I * an infant within the age of two weeks neglects or omits to report immediately to the heaUh officer or to a legally qualified prac- titioner of medicine of the city, town or place where such child is heing cared for, the fact that one or both eyes of such infant are inflamed or reddened whenever such shall he the case, or who applies any remedy therefor without the advice, or except by the direction of such officer or physician ; or, 4. Neglects, refuses or omits to comply with any provisions of this section, or violates the provisions of such license, is guilty of a misdemeanor. Every such license must specify the name and residence of the person so undertaking the care of such females or children, and the place and the number of females or children thereby al- lowed to be received, boarded and kept therein, and shall be revocable at will by the authority granting it. Every person so licensed must keep a register wherein he shall enter the name and ages of all such children and of all children born on said premises, and the names and residences of their parents, as far as known, the time of the reception and discharge of such children and the reasons therefor, and also a correct register of the name and age of every child under the age of five years who is given out, adopted, taken away or indentured from such place to or by any one, together with the name and residence of the person so adopting, taking or indenturing such child; and shall cause a correct copy of such register to be sent to the authority issuing such license within forty-eight hours after such child is so given out, adopted, taken away or indentured. It shall be lawful for the officers of any incorporated society for the pre- vention of cruelty to children and of such board of health at all reasonable times to enter and inspect the premises wherein such females and children are so boarded, received or kept, and also such license, register and the children. All places for which such a license shall have been issued shall be reinspected at least once in each month by the local health officer or his authorized agent, and a written report of such rein- spection shall be made to the local board of health by said health officer, and filed in his office. Every such license shall expire on the thirty-first day of May after its issue and may be renewed after a reinspection of the premises by the local health officer or his duly authorized agent, and a written report thereon made to the local board of health and filed in his office. {Suhd. 4 amended hy L. 1921, ch. 566, in effect Sept. 1, 1921.) 94 Art. 44] CHILDREN [§ 483 5. No institution stall be incorporated for any of the purposes mentioned in this section except with the written consent and approbation of a justice of the supreme court, upon the certificate in writing of the state board of charities approving of the organi- zation and incorporation of such institution. The said board of charities may apply to the supreme court for the cancellation of any certificate of incorporation previously filed without its approval, and may institute and maintain an action in such court through the attorney-general to procure a judgment dissolving any such corporation not so incorporated and forfeiting its corporate rights, privileges and franchises. Derivation: Penal Code, § 288, as amended L. 1884, eh. 46, § 3; L. 1886, ch. 31, § 2; L. 1828, cli. 145, § 4; L. 1892, ch. 325, § 3; eubi. 5, which was added L. 1894, ch. 171. Furman v. Van Sise (1874), 56 N. Y. 435; Cowley v. People (1880), 83 N. Y. 464, 38 Am. Eep. 464, aff'g 21 Hun, 415, 8 Abb. N. C. 1; PeopJe ex rel. Wagner v. Hagan (1900), E2 App. Div. 387, 65 N. Y. Supp. 120, 15 N. Y. Cr. 136, aflf'd 165 N. Y. 607; People v. Pierson (1903), 63 L. E. A. 187, 176 N. Y. 201, rev'g 80 App. Div. 415, 81 N. Y. Supp. 214; People v. Allcutt (1907), 117 App. Div. 552, 102 N. Y. Supp. 678, 20 N. Y. Cr. 567; People v. Quimby (1903), 113 App. Div. 794, 99 N. Y. Sv:pp. 330; People v. Joyce (1906), 112 App. Div. 722, 98 N. Y. Supp. 863, 20 N. Y. Cr. 107; City of New York V. Chelsea Jute Mills (1904); 43 Misc. 269, 88 N. Y. Supp. 1085; see also Cromwell v. Benjamin, 41 Earb. 558; Dedham v. Nitick, 16 Mass. 140; Kelly V. Davis, 49 N. H. 176, 6 Am. Eep. 499. § 483. Endangering life or health of child. A person who : 1, Wilfully causes or permits the life or limb of any child actually or apparently under the age of sixteen years to be en- dangered, or its health to be injured, or its morals to become depraved ; or, 2, Wilfully causes or permits such child to be placed in such a situation or to engage in such an occupation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, Is guilty of a misdemeanor. 3, [Subd. repealed by L. 1910, ch. 699, in effect June 25, 1910.] Derivation: Penal Code, § 2S9, as amended L. 1888, ch. 145, § 5, subd. 3, which was added L. 1905, ch. 655, § 2. Cowley V. People (1880), 83 N. Y. 464; People v. Pierson (1903), 176 N. Y. 201, rev'g 80 App. Eiv. 415, 81 N. Y. Supp. 214; People v. Joyce (1903), 112 App. Div. 722, ES N. Y. Su-n. 863, 20 N. Y. Cr. 107; People v. Donahue (1906), 114 App. Div. SCO, ICO N. Y. Supp. 202, 20 M. Y. Cr. 341. 95 § 484] CHILDEEjST. ,,. [^.rt. 44 § 484. Permitting children to attend certain resorts. A person who : 1. Admits to or allows to remain in any dancehouse, public pool or billiard room, public bowling alley, concert saloon, theatre, mu- seum, skating rink, kinetoscope or moving picture performance, or in any place where wines or spirituous or malt liquors are sold or given away, or any place of entertainment injurious to health or morals, owned, kept, leased, managed or controlled by him or by his employer, or where such person is employed or performs such services as doorkeeper or ticket seller or ticket collector, any child actually or apparently under the age of sixteen years, unless accom- panied by its parent or guardian or by an adult person authorized by its parent or guardian ; or unless such theatrical performance, kinetoscope or moving picture exhibition or other entertainment is given under the auspices, or for the benefit of any school or church or educational or religious institution, not operated for profit, or, (Amended by L. 1909, ch. 278 ; L. 1910, chs. 383, 475; L, 1911, ch. 243; L. 1920, ch. 849, in effect May 19, 1920.) 2. Suffers or permits any such child to play any game of skill or chance in any such place, or in any place adjacent thereto, or to be or remain therein, o,r admits to or allows to remain in any reputed house of prostitution or assignation, or in any place where opium or any preparation thereof is smoked, any child actually or apparently under the age of sixteen years ; or, 3. Sells or gives away, or causes or permits or procures to be sold or given away to any child actually or apparently under the age of sixteen years any beer, ale, wine, or any strong or spirituous liquor; or, 4. Being a pawnbroker or person in the employ of a pawnbroker, receives or purchases any goods, chattels, wares or merchandise, or makes any loan or advance or permits to be loaned or advanced to any child actually or apparently under the age of sixteen years any money, or in any manner directly or indirectly receives any goods, chattels, wares or merchandise from any such child in pledge for loans made or to be made to it or to any other person or otherwise howsoever; or, (Amended by L. 1918, ch. 361, in effect ApriL 30, 1918.) 5. Sells, pays for or furnishes any cigar, cigarette or tobacco in any of its forms to any child actually or apparently under the age of eighteen years; or (Subd. amended by L. 1917, ch. 564, in effect September 1, 1917.) 6. Being the ovraer, keeper or proprietor of a junk shop, junk cart or other vehicle or boat or other vessel used for the collection of junk, or any person in the employ of such owner, keeper or proprietor, or any collector of junk, receives or purchases any goods, chattels, wares or merchandise from any child under the age Art. 44] CHILDEEN [§ 485 of sixteen years, (Amended by L, 1918, ch. 361, in effect April 30, 1918.) Is guilty of a misdemeanor. It shall be no defense to a prosecution for a violation of sub- divisions three, four, five or six of this section, that in the trans- action upon which the prosecution is based the child acted as the agent or representative of another, or that the defendant dealt with such child as the agent or representative of another. Derivation: Penal Code, § 290, as amended L. 1889, ch. 170; L. 18S4, ch. 46, § 4; L. 1886, cJi. 31, § 3; L. 1889, ch. 170, § 1 ; subd. 6. added by L. 1903, ch. 309 and s,ubd. 8, added L. 1906, ch. 41. People V. Jensen (1904), 99 App. Div. 355, 359, 90 N. Y. Supp. 1062, 19 N. y. Cr. 7; People v. Goeghegan (1883), Sup. Ct. Sp. Term, Barrett, J., Apr. 25 1883 Subd. 1.— People ex rel. Jacques v. Sheriff (1907), 54 Misc. 8, 122 App. Div. 878, 107 N. Y Supp. 415, 21 N. Y. Cr. 557. Subd. 3.— People v. Koenig (1896), 9 App. Div. 436, 41 N. Y. Supp. 283; People V. Hartstein (1906), 49 Misc. 336, 99 N. Y. Supp. 272, 20 N. Y. Cr. 1, 2. Subd. 5.— People v. Zabor (1904), 183 N. Y. 242, 103 App. Div. 594, 92 N. Y. Supp. 1139, 44 Misc. 634, 90 N. Y. Supp. 412. Subd. 6.— People v. McGuire (1906), 113 App. Div. 631, 99 N. Y. Supp. 91, 20 N. Y. Or. 125. § 485. Certain employment of children prohibited. A person who employs or causes to be employed, or who exhibits, uses, or has in custody, or trains for the purpose of the exhibition, ' use or employment of, any child actually or apparently under the age of sixteen years ; or who having the care, custody or control of such a child as parent, relative, guardian, employer or otherwise, sells, lets out, gives away, so trains, or in any way procures or , consents to the employment, or to such training, or use, or exhibi- tion of such child; or who neglects or refuses to restrain such child from sucH training, or from engaging or acting : 1. As a rope or wire walker, gymnast, wrestler, contortionist, rider or acrobat ; or upon any bicycle or similar mechanical vehicle or contrivance; or, 2. In begging or receiving or soliciting alms in any manner or under any pretense, or in any mendicant occupation ; or in gath- ering or picking rags, or collecting cigar stumps, bones or refuse from markets ; or in peddling ; or, 3. In singing; or dancing; or playing upon a musical instru- ment ; or in a theatrical exhibition ; or in posing or acting, or as a subject for use, in or for, or in connection with, the making of a motion picture film ; qr in any wandering occupation ; or, 4. In any illegal, indecent or immoral exhibition or practice; or in the exhibition of any such child when insane, idiotic, or when presenting the appearance of any deformity or unnatural physical formation or development ; or 97 § 485] CHILDEEN [Art. M 5. In any practice or exhibition or place dangerous or injurious to the life, limb, health or morals of the eV.ild, is guilty of a misde- meanor. But this section does not apply to the employment of any child as a singer or musician in a church, school or academy; or in teaching or learning the science or practice of music ; or as a musician in any concert or in a theatrical exhibition or in posing or acting, or as a subject for use, in or for, or in connection v/ith, the making of a motion picture film with the written consent of the mayor of the city, or the president of the board of trustees of the village where such concert or exhibition takes place. Such consent shall not be given unless forty-eig'.:t hours previous notice of the application shall have been served in writing upon the society mentioned in section four hundred and ninety-one of this chapter, if there be one within the county, and a hearing had thereon if requested, and shall be revocable at the will of the authority giving it. It shall specify the name of the child, its age, the names and residence of its parents or guardians, the nature, time, duration and number of performances permitted, together with the place and character of the exhibition; and where any child IB to be employed in the making of a motion picture film it shall pro- vide that the child is to be employed only in the manner described and set forth in the statement in writing submitted with the applica- tion, as hereinafter provided. Any person applying for such consent for the use or employment of any such child or children in any place in the state, in posing or acting for or as a subject for use in or in connection with the making of a motion picture film shall submit with such application a true and accurate statement in writing setting forth and describing in detail the entire part to be taken and each and every act and thing to be done and performed, by such child in the making of such film to the local ofBcial having authority to issue such permits or of any such society having jurisdiction in such place. But no such consent shall be deemed to authorize any violation of the first, second, fourth or fifth subdivisions of this section. (Amended by L. 191G, ch. 278, in effect April 24, 1916.) Derivation: Penal Code, § 292, as amended L. 1884, ch. 46, § 6; L. 1886, ch. 31, § 5; L. 1892, ch. 309. The Society for the Ref. of Juv. Del. v. Diers (1871), Sup. Ct. Gen. Term, Jan., 1871,, 10 Abb. Pr. (N. S.) 216; People v. Denabla (1876), N. Y. Spec. Sess., Nov. 16, 1876; People v. Leonard (1876), Donahue, J., Dec. 11, 1876; Matter of Rivers (1877), Donahue, J., May 25, 1877; Matter of Corinne (1881), Sup. Ct. Donahue, J., Dai'.y Register, Dec. 16. 1881: People v. A'berle (1883), N. Y. Spec. Seps., aflF'd bv Hon. Rufus B. Cowins, City Judpe, Mar. 27, 1883; People V. Perkins (1884), N. Y. Spec. Sess., aff'd by Recorder Smyth, 1884, 98 Art. 44] CHILDREN [§486 MS. opinion; Ryan v. Buchanan (1885), 37 Hun, 425; People v. Ewer (1892), 141 N. Y. 129, aff'g 8 N. Y. Cr. 383; Matter of Stevens (1893), 70 Hun, 243, 24 N. Y. Supp. 780; People ex rel. Saunders v. Grant (1893), 70 Hun, 233, 24 N. Y. Supp. 776; People v. Mnlone (1901), 63 App. Div. 117, 71 N. Y. Supp. 224; People v. Lochner (1904). 177 N. Y. 153; see also Matter of Donahue, 1 Abb. N. C. 1. § 488. Prohibited acts; destitute children. Any child actually or apparently under the age of sixteen years who is found: 1. Begging or receiving or soliciting alms, in any manner or under any pretense ; or gathering or picking rags, or collecting cigar stumps, bones or refuse from markets ; or, 2. Not having any home or other place of abode or proper guardian- ship; or who has been abandoned or improperly exposed or neglected, by its parents or other person or persons having it in charge, or being in a state of want or suffering ; or, 3. Living or having lived with or in custody of a parent or guardian who has been sentenced to imprisonment for crime, or who has been convicted of a crime against the person of such child, or has been adjudged an habitual criminal; or, 4. Frequenting or being in the company of reputed thieves or pros- titutes, or in a reputed house of prostitution or assignation, or living in such a house either with or without its parent or guardian, or being in concert saloons, dance houses, theatres, museums or other places of entertainment, or places where wines, malt or spirituous liquors are sold, without being in charge of its parent or guardian; or playing any game of chance or skill in any place wherein or adjacent to which any beer, ale, wine or liquor is sold or given away, or being in any such place; or, 5. Coming within any of the descriptions of children mentioned in section four hundred and eighty-five. Must be arrested and brought before a proper court or magistrate, who may commit the child to any incorporated charitable reformatory, or other institution, and when practicable, to such as is governed by persons of the same religious faith as the parents of the child, or may make any disposition of the child such as now is, or hereafter may be authorized in the cases of vagrants, truants, paupers or disorderly persons, but such commitment shall, so far as practicable, be made to such charitable or reformatory institutions. Whenever any child shall be committed to an institution under this chapter, and the warrant or commitment shall so state, 99 § 486] CHILDREIsT [Art. 44 and it shall appear therefrom that either parent, or any guardian or custodian of such child, was present at the examination before such court or magistrate, or had such notice thereof as was by such court or magistrate deemed and adjudged sufficient, no further or other notice required by any local or special statute, in regard to the committal of children to such institution, shall be necessary, and such commitment shall in all respects be sufficient to authorize such institutions to receive and retain such child in its custody as therein directed. Whenever any commitment of a child shall for any reason be adjudged or found defective, a new commitment of the child may be made or directed by the court or magistrate, as the welfare of the child may require. And no commitment of a child which shall recite therein the facts upon which it is based shall be deemed in- valid by reason of any omission of the court or magistrate by whom such commitment is made to file any documents, papers or proceed- ings relating thereto, or by reason of any limitation as to the age of the child committed, contained in the act or articles of incorpo- ration of the institution to which it may have been committed. If it shall appear to the board of managers, trustees or other officers in charge of any incorporated school, reformatory, chari- table or other institution authorized by law to receive and take charge of minors to which any child has been committed pursuant to any of the provisions of this section or of section twenty-one hundred and ninety-four of the penal law or to the provisions of any general or special law that a child so committed is incorrigible and that his or her presence therein is seriously detrimental to the welfare of the institution or other children therein, or that any child after such commitment shall have been released on parole or probation from such institution and any of the terms or conditions of such release shall thereafter be violated, an application may be made by such board, trustees or officers at any time before such child shall attain the age of twenty-one years to the committing court or magistrate or to a justice of the supreme court in the judicial district in which the said institution is located, for an order 300 Art. 44] CHILDKEN [§ 48G for the transfer and commitment of said child to another incorpo- rated school, reformatory or institution, authorized by law or desig- nated by the state board of charities to take the custody of any such child and governed or controlled by persons of the same religious faith as the parents of the said child, when practicable, or if not practicable, to such public institution as shall be deemed suitable. Such application shall be by petition verified by an officer of the institution to which such child was originally committed and shall state the reasons therefor. On the filing of such petition the court, magistrate or justice may issue a warrant for the arrest and deten- tion of such child pending such application. Due notice of such application with a copy of the petition shall be served personally or by mail at least eight days before the hearing, on the parents or guardian of said child and the officer of the locality chargeable for the support of such child and upon the hearing of said petition such court, magistrate or justice may grant such order of transfer and make such commitment if it appears that such transfer and com- mitment should be made;, and thereupon such child shall be con- fined in the institution to which such transfer and' commitment shall be made as upon the original commitment until released according to law. If the said child has been, released upon parole or probation from any such institution for juveniles and has later been committed to an institution for adult delinquents, and is either serving a term of imprisonment in an institution for adult delin- quents or has been released upon parole therefrom, and is actually at liberty under parole at the time the application is made to the court for an order for the transfer and commitment as hereinbe- fore provided, then notice of such application for transfer and com- mitment must also be served upon the warden, superintendent or keeper of the institution where the said child is undergoing im- prisonment, or upon the official or officials holding jurisdiction over liim while he is at liberty from such institution upon parole. (Last par. of subd. added by L. 1912, ch. 169, and amended by'L. 1917, ch. 430, in effect May 9, 1917.) 6. No child actually or apparently under sixteen years of age 100a § 486] CHILDREN [Art. 44 shall smoke or in any way use any cigar, cigarette or tobacco in any form whatsoever in any public street, place or resort. A violation of this subdivision shall be a misdemeanor, and shall be punished by a fine not exceeding ten dollars and not less than two dollars for each offense. 7. x\ll children actually or apparently under the age of sixteen who desert their homes without good or suificient cause, or keep company with dissolute, immoral or vicious persons, shall be deemed disorderly children. Those actually or apparently under the like age who are not susceptible of proper restraint or control by their parents, guardians, or lawful custodians, or who are habitually disobedient to their' reasonable and lawful commands, shall be deemed ungovernable children. A disorderly or ungov- ernable child may be dealt with as provided in the fifth subdivision of this section. 8. Any magistrate having criminal jurisdiction may commit, temporarily, to an institution authorized by law to receive children on final commitment, and to have compensiation therefor from the city or county authorities, any child under the age of sixteen years, who is held for trial on a criminal charge ; and may, in like manner, so commit any such child held as a witness to appear on the trial of any criminal case; which institution shall thereupon receive the same, and be entitled to the like compensation propor- tionally therefor i.s on final commitment, but subject to the order of the court as to the time of detention and discharge of the child. Any such child convicted of any misdemeanor shall be finally com- mitted to some such institution, end not to any prison or jail, or penitentiary. When such conviction is made in a place or locality where there is a humane society or other similar organization or association authorized to care for children, such child shall be tem- porarily committed to such society or organization until conveyed therefrom to such institution. Whon such conviction is made m a place or locality where there is no such society, organization or as- sociation, it shall be the duty of the officials charged with the con- veying of such child to such institution to which it was committed to immediately cause it to be conveyed • thereto. No child under restraint or conviction, actually or apparently under the age of sixteen years, shall be placed in any prison or place of confine- ment, or in any court room, or in any vehicle for transportation in company with adults charged with or convicted of crime. (Amended by L. 1920, eh. 847, in effect May 19, 1920.) 9. Whenever any child is brought before any court or magis- trate, to be dealt with under any cf the subdivisions of this sec- tion, instead of committing such child to confinement in any institution, the court or magi:,trate may place such child under 100b Art. 44] CHILDREN [§ 486 tlie custody of a probation or parole officer, and at any time within one yiar tlifvpat'ttr sul-Ii court or magistrate, may issue a warrant for siicii child, and after giving such child an opportunity to be board, may make the commitment which could have been made ia tLe first instance as aforesaid. The foregoing provision sliall not apply to a children's court created by special enactment in cities of the first class but this e.xception shall not be construed as taking away or limiting any jurisdiction now possessed by such children's courts. If at any time during the proceedings it shall seem to the magistrate that any child brought before him under any of the subdivisions of this section, appears to be feeble-minded, he may cause the child to be examined by two physicians of at least five years' experience in the treatment of mental disease, and on the written statement of the two examining physicians that in their opinion the child is feeble-minded, he may commit him to a public institution for the feeble-minded, and such child shall be detained therein until duly discharged by direction of the board of mana- gers thereof. (Amended by L. 1915, ch. 480. In effect Sept. 1, 1915.) Derivation: Penal Code. § 291, as amended L. 1884, ch. 46, i 5; subd. 5, as amended L. 1886, ch. 31, § 4, and L. 1888, ch. 145, § 6; subd. 6, aa amended L. 1892, ch. 217, § 1; subd. 7, added L. 1890, ch. 417, § 1; subd. 8, added L. 1903, ch. 50, § 1; subd. 9, added L. 1905, ch. 655, § 3. For re- mainder of section 291 of the Penal Code, see § 487, post. People ex rel. Hoey v. Supt. House of Befuge (1860), Sup. Ct., Apr., 1860, MS. opinion; Matter of Williamson (1867), Sup. Ct., .3 Abb. Pr. (N. S.) 2^4; People ex rel. Tweed v. Liscomb (1875), 60 N. Y. 559, rev'g 3 Hiin, 760, 6 Th. & C. 658; Matter of Haller (1877). 12 Hun, 131, 3 Abb. N. C. 65; Cow- ley V. People (1880), 83 N. Y. 464, aff'g 21 Hun, 415, 8 Abb. N. C. 1 ; People ex rel. McCarthy v. French (1881), 25 Hun, 111; People ex. rel. Coreado v. Catholic Protectory, Sup. Ct. Chambers, Lawrence J., March 27, 1882; Matter of Wright (1883), 29 Hun. 357; People v. Maschke (1884), 2 N. Y. Cr. 168; Matter of Larson (1884), 31 Hun, 539; People ex reL Newby v. N. Y. S. P. C. C, Report of Hon. Xelson J. Waterbury, Referee, confirmed by Sup. Ct., Sp. Term, Donahue, J., D.iilv Reg.. Marcli 27, 1884; Matter of Allegi, Sup. Ct. Cliambcrs, Partlett. J., Daily Reg., August 22, 1884; Matter of (ohen. Daily Beg., Dec. 26, 1884; People ex reL Perkerson v. Sisters of the Order of St. Dominick (1885), 34 Hun. 403, 2 N. Y. Cr. 528, 1 Ilow. Pr. (N. S.) 132; People ex rel. Downey v. Dains (1885), 38 Hun, 43; Matter of Averlino, An- drews, J., Daily Keg.. Mar. 10, 1885; Matter of Barry, Daily Reg., March 10, 18S5; Matter of MolTit, Daily Reg., May 4, 1886; Matter of Maloney (ISS!)), 61 Hun. 372, 4 N. Y. Supp. 428, 6 N, Y. Cr. 248; People ex rel. Brown v. Carpeiter (1890). 123 N. Y. 640; People ex rel. Zccse v. Hasten (1S!)4). 79 Hun, 683, 29 N. Y. Supp. 891; People ex rel. Plot v. Poly (1896), 17 Misc. 162, 40 N. Y. Supp. 990; People v. Giles (1897), 152 N. Y. 136. rev'g 12 App. Div. 495, 42 N. Y. Supp. 749; People ex rel. James v. N. Y. S. P. C. C. (lPn7). 19 MifC. 561, 44 N. Y. Supp. 1098, 12 N. Y. Cr. 86; Matter of Lau- brrtr'cbt, N. Y. L. J., Sept. 28. 1897; Matter of BrafTett (1899), 27 Mise. 3i9, 57 N. Y. Supp. 890; Matter of Knowack (1899), 158 N. Y. 482, aff'g 20 101 § 487] CHILDREN [Art. 44 App. Div. 627, 52 N. Y. Supp. 1144; People ex rel. Amato v. House of Good Shepherd (1899), 29 Misc. 468, 60 K Y. Supp. 771, 14 N. Y. Cr. 304; Matter of Cohn (1899), 28 Misc. 658, 59 N. Y. Supp. 1028; People ex rel. Horton v. Fuller (1899), 41 App. Div. 404, 58 N. Y. Supp. 835; People ex rel. Aikens V. State Industrial School (1900), 33 Misc. 396, 67 N. Y. Supp. 674, 16 N. Y. Cr. 278; Matter of New York Juvenile Asylum, N. Y. L. J., May 8, 1900; People ex rel. Dunlap v. New York Juvenile Asylum (1901), 58 App. Div. 133, 68 N. Y. Supp. 656; People v. Hines (1901), 57 App. Div. 419, 68 N. Y. Supp. 276; People v. Angie (1902), 74 App. Div. 542, 77 N. Y. Supp. 832^ People ex rel. TuUy v. Fallon (1902), 73 App. Div. 471, 77 N. Y. Supp. 292; People ex rel. Bolt v. Society (1905), 48 Misc. 175, 95 N. Y. Supp. 250; People V. O'Neill (1907), 117 App. Div. 827, 102 N. Y. Supp. 988; see also People v. Baker, 3 N. Y. Supp. 530; Matter of Baker, 11 How. Pr. 418, 425; People V. Brown, 23 Wend. 47 ; Matter of Coughlin, 62 How. Pr. 34 ; People v. Degnen, 6 Abb. Pr. (N. S.) 87, 54 Barb. 105; Matter of Diss Debar, 3 N. Y. Supp. 667 ; Matter of Donahue, 1 Abb. N. C. 1 ; People v. Duffy, 5 Barb. 205 ; People ex rel. Eck. v. American Guardian Society, 1 How. Pr. (N. S.) 137; Matter of Forsyth, 66 How. Pr. 180; People v. The Keeper, etc., 37 How. Pr. 494; People ex rel. Day v. Mount Magdalen School of Industry, 28 N. Y. St. 254, 7 N. Y. Supp. 737; Matter of Moses, 13 Abb. N. C. 1; Matter of Nichols, 19 Abb. N. C. 138, 4 N. Y. St. 659 ; Matter of Roach, Gen. Term, 18 Week. Dig. 514; People ex rel. Roddy v. N. Y. Juvenile Asylum, 12 Abb. Pr. 92; People v. The Superintendent, etc., 8 Abb. Pr. (N. S.) 112; Com. v. Allen, 15 B. Monr. 1 ; Com. v. Harvey, 16 B. Monr. 1. § 487. Children's courts. All cases involving the commitment or trial of children, actually or apparently under the age of sixteen years, for any violation of law, in any court shall be heard and determined by such court, at suitable times to be designated therefor by it, separate and apart from the trial of other criminal cases, of which session a separate docket ,tod record shall be kept. All such cases shall, so far as practicable, be heard and determined in a separate court room to be known as the children's court and to be used exclusively for the examination and trial of children, actually or apparently under the age of sixteen years, charged with any offense. And all such cases and cases of offenses by, or against the person of, a child under t^he age of sixteen years shall have preference over all other cases, before all magistrates and in all courts and tri- bunals in this strfte both civil and criminal ; and where a child is committed or detained as a witne^ in any case such case shall be brought to trial or otherwise disposed of without delay, whether the defendant be in custody or enlarged on bail. Derivation: , Penal Code, S 291(7), added L. 1892, ch. 217, § 2. and amended L. 1896, c'l. 410. 5 1 ; L. 1903, oh. 331, § 1. Fox remainder of Penal Code 291(7), see § 486, ante. W2 Art. 44] CHILDKEN" [§§ 488-490 § 488. Sending messenger boys to certain places. A corporation or person employing messenger boys who : 1. Knowingly places or permits to remain in a disorderly house, or in an unlicensed saloon, inn, tavern or other unlicensed place where malt or spirituous liquors or wines are sold, any instru- ment or device by which communication may be had between such disorderly house, saloon, inn, tavern or unlicensed place, and any office or place of business of such corporation or prison ; or, 2. Knowingly sends or permits any person to send any mes- senger boy to any disorderly house, unlicensed saloon, inn, tavern, or other unlicensed place, where malt or spirituous liquors or wines are sold, on any errand or business whatsoever except to deliver telegrams at the door of such house. Is guilty of a misdemeanor, and incurs a penalty of fifty dollars to be recovered by the district attorney. Derivation: Penal Code, § 292a, added L. 1893, eh. 692, § 2. § 489. Furnishing minors in reformatories with tobacco regulated, A person or officer who sells or gives any cigar, cigarette, snuff or tobacco in any of its forms to any minor undergoing confine- ment or sentence in any reformatory, penitentiary or house of refuge in this state, except by the authority of the managers of such institutions, is guilty of a misdemeanor. (Amended by L. 1917,- ch. 263, in effect April 25, 1917.) Derivation: LJ 1897, ch. 256, § 1. § 490. Duty of officers. A constable or police officer must, and any agent or officer of any incorporated society for the prevention of cruelty to children may arrest and bring before a court or magistrate having juris- diction, any person offending against any of the provisions of this article and any, minor coming within any of the descriptions of children mentioned in section four hundred and eighty-five, four hTmdred and eighty-six, or in foiir hundred and eighty-seven. Such constable, police officer or agent may interfere to prevent the perpetration in his presence of any act forbidden by this article. A person who obstructs or interferes with any officer or agent of such society in the exercise of his authority under this article is guilty of a misdemeanor. Derivation: Part Penal Code, § 293, as amended L. 1888, ch. 415, § 7. For remainder of section, see § 491, post. Regents of Univ. of Maryland v. Williams, 9 Gill & Johns. 388; Matter of 103 §§ 491-494] CHILDREN [Art. 44 Corinne, Daily Reg., Dec. 16, 1881; People v. Strickland, 13 Abb. N. C. 473; Davis v. Society, etc., 16 Abb. Pr. (N. S.) 73; People ex lel. Newby v. N. Y. S. P. C. C, Daily Reg., Mar. 27, 1881; People ex rel. James v. N. Y. Society (1897), 19 Misc. 561, 44 N. Y. Supp. 1098, 12 N. Y. Cr. 86; People v. Angle (1902), 74 App. Div. 541, 77 N. Y. Supp. 832; People ex rel. State Board, etc., v. N. Y. Society, etc. (1899), 161 N. Y. 233, rev'g 42 App. Div. 83, 58 N. Y. Supp. 953; People ex rel. N. Y. S. P. C. C. v. Gilmore (1882), 88 N. Y. 626, rev'g 26 Hun, 1. § 491. Fines to be paid to society for prevcnticn of cruelty to children. All fines, penalties and forfeitures imposed or collected for a viola- tion of the piovisions of this chapter, or of any act relating to, or affecting children, now in force or hereafter passed, must be paid on demand to the incorporated society for tlie prevention of cruelty to children in every case where the prosecution shall be instituted or con- ducted by such a society ; and any such payment heretofore made to any such society may be retained by it. Derivation • Part of Peral Code, § 2D3, as amended L. 1888, cli. 415, § 1. For remainder of scciion, sre § 490, uuie. See Penal Law, section 490. § 492. Concealing birth of a child. A person who endeavors to conceal the birth of a child, by any disposition of the dead body of the child, whether the child died before or after its birth, is guilty of a misdemeanor. Derivation : Penal Code', § 296. § 493. Taking apprentice without consent of guardian. A person who takes an apprentice without having first obtained the consent of his legal guardian or unless a written agreement has been entered into as prescribed bv law, i, guilty of a misdemeanor. . Derivation : Penal Code, § 293b. added L. 1898, ch. 692, § 2. § 494. Endangering morals of child; summons; probation; bond; jurisdiction. 1. A parent, guardian or other person having custody of a child actually or apparently under sixteen years of age, who omits to exer- cise reasonable, diligence in the control of such child to prevent such child from becoming guilty of juvenile delinquency as defined by stat- ute, or from becoming adjudged by a children's court in need of the care and protection of the state as defined by statute, or who permits such a child to associate with vicious, immoral or criminal persons, or to grow up in idleness, or to beg or solicit alms, or to wander about the streets of any city, town or village late at night without being in any lawful business or occupation, or to furnish entertainment for gain upon the streets or in any public place, or to be an habitual truant from school, or to habitually wander around any railroad yard or tracks, to enter any house of prostitution or assignation, or any place where gambling is carried on, or any gambling device is operated, or any policy shop, or to enter any place where the m.orals of such child may be endangered or depraved or may be likely to be impaired, and any such person or any other person who knowingly or wilfully is responsible for, encourages, aids, causes, or connives at, or who know- 104 Art. 44] CHILDEEN [§494 ingly or wilfully does any act or acts to produce, promote or con- tribute to the conditions which cause such cliild to be adjudged guilty of juvenile delinquency, or to be in need of the care and protection of the state, or to do any of the acts hereinbefore enumerated, shall be guilty of a misdemeanor. 2. Any magistrate presiding over a court having the jurisdiction hereinafter conferred upon it may upon an oral or written complaint, or upon his own instance, when he has reason to believe that any parent or guardian or other person should be prosecuted under the pro- visions of this act, issue a Eummons directed to such parent, guardian or other person substantially as follows : IN THE NAME OP THE PEOPLE OF THE STATE OF NEW YORK: To You are hereby summoned to appear before court at to the end that an investigation maj be made into the charge that you have contributed to or are re- sponsible for of (state charge) (name of child) and upon your failure to appear at the time and place herein men- tioned you are liable to a fine not exceeding twenty-five dollars. Dated at , this day of , 1910 (Signed by magistrate.) Such summons may be served hy a police officer or by any othe) person designated by the magistrate, and if the person summonetl does not appear such failure to appear shall constitute contempt, ar.tl may be punishable by a fine not exceeding twenty-five dollars. The magistrate may issue subpcenas subject to the same penalties for dis- obedience thereof, nr refusal to testify thereunder, as provided for in the code of civil procedure. Upon the return of the summons the magistrate shall inquire into the subject-matter of the charga. When- ever during the investigation the magistrate is satisfied from sworn testimony that there is sufficient cause for a warrant to issue, instead of issuing the warrant, if he deems it for the best interest of the person summoned and the state, upon the consent of the person sum- moned given in open court, the magistrate may adjourn the investiga- tion frcm time to tim.e for a period aggregating not more than one year and place tl:e person summoned under the oversight of a probation o.Ticer during the adjournment, or may cause the person summoned to give a bond to the people of the state of New York, for not to ex- ceed one year, with or without sureties, in such sum not to exceed two hundred and fifty dollars as he may direct. The probation officer cannot require the person so p'aced under his oversight to do more than to satisfy inquiries regarding the conduct or condition of the child, or regarding the conduct or condition of such person in so far as it relates to the conduct or condition of the child. The condition of such bond shall be that if the obligor shall exercise reasonable dili- gence during the lime fixed in the bond, which cannot exceed the period of adjournment, to prevent a continuance or repetftion of the condi- tion, conduct, act, acts, offense or offenses of such child as was the special cause of the investigation and if charged with the custody of 104-a § 494] CHILDKEK [Art. 44 the child also to exercise reasonable diligence in the discipline and con- trol of such child, and appear in court from time to time as ordered, tlien the bond shall be void, otherwise in full force and effect. On the adjourned day the person summoned must appear in court and if tiie magistrate is satisiied that the person summoned has exercised reasonable diligence to prevent such continuance or repetition of the condition, conduct, act, acts, offense or offenses of such child, and if rharged with the custody of the child has also exercised reasonable diligence in the discipline and control of such child during the period of adjournment he must dismiss the proceeding and cancel the bond, if any. If he is not so satisfied he must either issue the warrant, or upon the consent of the person summoned given in open court he must continue the adjournment, probationary oversight and bond, if any, but all of such adjournments cannot exceed one year from the date of the first adjournment. Nothing herein contained shall interfere with the right of a magistrate to issue the warrant in the first instance upon sworn information, or at the close of the investigation, and the mag- istrate who presides at the investigation, or his successor, may at any time during the adjournment, upon notice to the person summoned to appear and show cause, revoke and cancel the adjournment and issue the warrant. 3. Whenever a person is convicted of the misdemeanor hereinbefore defined and sentence is suspended the court may place the defendant upon probation for a period of not more than one year ; provided that the court may cause the defendant to give a bond to the people of the state of New York, with or without sureties, in a sum not to exceed five hundred dollars. The condition of such bond shall be that if the obligor shall exercise reasonable diligence during the time fixed in the bond, which cannot exceed one year, to prevent a continuance or repeti- tion of the condition, conduct, act, acts, offense or offenses of such child which was the cause of defendant's prosecution, and if charged with the custody of the child also to exercise reasonable diligence in the discipline and control of such child and appear in court from time: to time aa ordered, then such bond shall be null and void, otherwise in full force and effect. The magistrate who presided at the trial, or his successor, if he is satisfied that the defendant has violated the terms and conditions of probation and bond, if any, may at any time revoke and cancel the suspension of sentence and probation and impose sentence. 4. The prosecution of all bonds given during an adjournment of an investigation or after conviction herein shall be upon the order of the magistrate who presided at the investigation or trial, or his successor, and all money collected on such bonds shall in the discretion of such magistrate be deposited in the office of the county treasurer to be ex- pended under the orders of the magistrate or his successor for the benefit of the child or children in whose interest such bond is given. 5. Original and exclusive jurisdiction of all proceedings, inve?ti;<^a- tions and trials instituted under this act is limited to courts of special sessions, police and city courts presided over by magistrates who hr^d or are assigned to children's courts, except in the city of New Y^rk, where the jurisdiction is hereby conferred upon and shall be eyerci"ed 1)V the city magistrates. (Added by L. 1910, ch. 699, in effect June 25, 1910.) 104-b Art. 40J CIVIL EIGHTS [§§ 510-512 ARTICLE 46. civil. RIGHTS. Section 510. Forfeiture of office and suspension of civil rights. 511. Consequence of sentence to imprisonment for life. 512. Forfeiture of property on conviction abolished. 513. Innkeepers and carriers refusing to receive guests and pas- sengers. 514. Protecting civil and public rights. 515. Discrimination against person or class in price for admission. 516. Return of photographs of prisoners after unsuccessful prosecu- tion of criminal action. 517. Discrimination against United States UKitorm. § 510. Forfeiture of office and suspension of civil rights. A sentence of imprisonment in a state prison for any term lees than for life, forfeits all the public offices, and suspends, during the term of the sentence, all the civil rights, and all private trusts, authority, or powers of, or held by, the person sentenced. Derivation: Penal Code, § 707. Bowles v. Haberman (1884), 95 N. Y. 240; Avery v. Everett (1888), 110 N. Y. 317, 6 Am. St. Rep. 386, 1 L. R. A. 264, aif'g 36 Hun, 6; People v. Meakim (1892), 133 N. Y. 214, atf'g 61 Hun, 327, 15 N. Y. Supp. 917, 8 N. Y. Cr. 308; La Chappelle v. Burpee (1893), 69 Hun, 436, 23 N. Y. Supp. 453; Matter of Guden (1902), 171 N. Y. 529, aff'g 71 App. Div. 422, rev'g 37 Misc. 398, 75 N. Y. Supp. 786; see also Miller v. Finkle, 1 Park Cr. 374; Davis v. Duffie, 8 Brosw. 617, 4 Abb. Pr. (N. S.) 478. § 511. Consequence of sentence to imprisonment for life. A person sentenced to imprisonment for life is thereafter deemed civilly dead. Derivation: Penal Code, § 708. Avery v. Everett (1888), 110 N. Y. 317, 6 Am. St. Rep. 368, 1 L. R. A. 264, aff'g 36 Hun, 6 ; .Trust Co. of America v. State Deposit Co. ( 1907 ) , 187 N. Y. 178, 184, aif'g 109 App. Div. 065, 96 N. Y. Supp. 585; and see In re Don- nelly's Estate (Cal.), 58 Pac. 61. § 512. Forfeiture of property on conviction abolished. A conviction of a person for any crime does not work a for- feiture of any property, real or pei-sonal, or of any right or in- terest therein. All forfei+nres to the people of the state, in the 103 . §§ 513-514] CIVIL RIGHTS LArt. 46 nature of deodands, or in a case of suicide, or where a person flees from jutice, are abolished. BeriTation: Penal Code, § 710. People V. Hawker (1897), 14 App. Div. 188, 43 N. Y. Supp. 616, rev'd 152 N. Y. 234, aff'd 170 U. S. 189. § 513. Innkeepers and carriers refusing to reciiva gursti and passengers. A person, who, either on his own account or as agent or officer of a corporation, carries on business as innkeeper, or as common carrier of passengers, and refuses, without just cause or excuse, to receive and entertain any guest, or to receive and carry any passenger, is guilty of a misdemeanor. Derivation: Penal Code, § 381. People V. Drum (1908), 127 App. Div. 242. § 514. Protecting civil and public rights. A person who : 1. Excludes a citizen of this state, Dy reason of race, color, creed or previous condition of servitude, from any public employment or from the equal enjoyment of any accommodation, facility or priv- ilege furnished by innkeepers or common carriers, or by owners, managers or lessees of theatres or other places of amusement, or hy teachers and officers of common schools and public institutions of learning, or by cemetery associations ; or, 2. Denies or aids or incites another to deny to any other person because of race, creed or color, public employment or the full enjoyment of any of- the accommodations, advantages, facilities and privileges of any hotel, inn, tavern, restaurant, public convey- ance on land or water, theatre or other place of public resort or amusement. Is guilty of a misdemeanor, punishable by fine of not less than fifty dollars nor more than five hundred dollars. (Amended by L. 1918, ch. 380, in effect Sept. 1, 1918.) Derivation: Penal Code, § 383, as amended L. 1893, ch. 692, § 1. People V. King (1886), 110 N. Y. 420, 1 L. R. A. 293, 6 Am. St. Rep. 389, aff'g 42 Lun K6; Stay v. Du Bois (1803), 74 Hun 134, 26 N. Y. Su-p. 240; Crcmore v. Huber ( 1S97) , 18 App. Div. 231, 45 N. Y. £upp. 947 ; Pcoile ex rel. Cisco V. School Board (1899), 161 N. Y. 508, 43 L. R. A. 113, a.T'g 44 A;)p. Div. 469, 61 N. Y. Supp. 330; Burks v. Bosso (1903), 81 App. Div. 530, 81 N. Y. Supp. 3£4; People ex rel. Burr.ham v. Flyr.n (1C07), 1C9 N. Y. IT.O. 21 N. Y. Cr 451, 114 App. Div. 578, 100 N. Y. Supp. 31, rev'g 49 Misc. 328, 99 N. Y. Supp. 198. 106 Art. 46j CIVIL RIGHTS [§§ 515-516 § 515. Discrimination against person or cxass in price for ad< mission. If a person who owns, occupies, manages or controls a building, park, inclosure or other place, opens the same to the public gen- erally at stated periods or otherwise, he shall not discriminate against any person or class of persons in the price charged for admission thereto. A person violating the provisions of this sec- tion is guilty of a misdemeanor. Derivation: Penal Code, § 383a, added L. 1809, cli. 724, § 1. § 516. Return of photographs of prisoners after unsuccessful prosecution of criminal action. Upon the determination of a criminal action or proceeding against a person, in favor of such person, every photograph of such person and photographic plate or proof taken or made of sucfh person while such action or proceeding is pending by direction or authority of any police officer, peace officer or any member of any police department, and all duplicates and copies thereof shall be returned on demand to such i)erson by the police officer, peace officer or member of any police department having any such photograph, photographic plate or proof, copy or duplicate in his posspssion or under his control ; and such police officsr, peace officer or member of any police department failing to comply with the requirements hereof, shall be guilty of a misdemeanor. Derivation: Penal Code, § 37na, added L. 1907, cli. 626, § 1. People ex rel. Gow v. Bingham (1907), 57 Misc. 66, 107 N. Y. Supp. 1011, 21 N. Y. Or. 566. § 517. Discrimination against United States uniform. A person who excludes from the equal enjoyment of any ac- commodation, facility or privilege furnished by innkeepers or common carriers, or by owners, managers or lessees of theatres or other places of amusement or resort, any person lawfully wearing the uniform of the army, navy, marine corps or revenue cutter service of the United States, because of that uniform, is guilty of a misdemeanor. (Added by L. 1911, ch. 410, in effect Sept. 1, 1911.) lo: §§ 530-531] COEECION [Art, H ARTICLE 48. COERCION. Section 530. Coercing another person a misdemeanor. 531. Coercion by employers. 532. Compelling woman to marry. 533. No conviction on certain testimony. § 530. Coercing another person a misdemeanor. A person who with a view to compel another person to do or to abstain from doing an act which such other person has a iegal right to do or to abstain from doing, wrongfully 'and unlawfully, 1. Uses violence or inflicts injury upon such other person or his family, or a, member thfereof, or lipon his property or threatens such violence or injury; or, 2. Deprives any such person of any tool, implement or clothing or hinders him in the use thereof ; or, 3. Uses or attempts the intitnida^tioh of such person bj threats or force, Is guilty of a misdemeanor. Derivation: Penal Code, § 653, as amended L. 1882, ch. 384, § 1. People V. Lenhardt (1886), 4 N. Y. Cr. 317; see also People v. Crotty, 9 N. Y. Supp. 938. § 531. Coercion by employers. Any person or employer of labor, and any person of any cor- poration on behalf of such corporation, who shall hereafter coerce or compel any person, employee, laborer or mechanic, to enter into an agreement, either written or verbal from such person, employee, laborer or mechanic, not to join or become a momber of any labor organization, as a condition of such person securing employment, or continuing in the employment of any such person, employer or corporation, shall be deemed guilty of a misdemeanor. ■ The pen'alty for such misdemeanor shall be imprisoned in a penal institution for not more than six months, or by a fine of not more than two hundred dollare, or by both such fine and im- prisonment. DaHTation: Penal Code, | 171a, added L. 1887, ch. 688, § 1. People V. Marcus (1906), 185 N. Y. 257, aff'g 110 App. Div. 225, 255, 256, 262, 97 N. Y. Supp. 322. log Art. 48] COEKClOlSr [§§ 532-533 § 532. Compelling woman to marry. A person who by force, menace or duress, compels a woman against her will to marry him, or to marry any other person, or to be defiled, is punishable by imprisonment for a term not ex- ceeding ten years, or by a fine of not more than one thousand dollars, or by both. DeriTation: Penal Code, § 281, as amended L. 1892, eli. 602, § 11. § 533. No conviction on certain testimony. iSTo conviction can be had for compulsory marriage upon the testimony of the female compelled, unsupported by other evidence. Berivstioai Part of Penal Code, f 283, as amended L. 1886, eh. 663, { I. ^oT remainder of section, see Penal Law, S! 71, 201S. ' 109 §§ 550-552] COMMUNICATIOlSr [Art. 50 ARTICLE 50. COMMTTNICATION. Section 550. Sending lef^er, when deemed complete. 551. Sending threatening letters. 552. Divulging contents of telegraphic or telephonic messages. 553. Opening or publishing a letter, telegram or private paper. § 550. Sending letter, when deemed complete. In the various cases, in which the sending of a letter is made criminal by this chapter, the offense is deemed complete from the time when such letter is deposited in any poet-office or other place, or delivered to any person, with intent that it shall be for- warded. And the party may be indicted and tried in any county wherein such letter is so deposited or delivered, or in which it is received by the person to whoin it is addressed. Derivation: Penal Code, § 183. § 551. Sending threatening letters. A person who, knowing the contents thereof, sends, delivers, or in any manner causes to be sent or received any letter or other writing threatening to do any unlawful injury to the person or property of another, or any person who shall knowingly send or deliver or shall make and for the purpose of being delivered or sent, shall part with the possession of any letter, postal card or writing with or without a name subscribed thereto or signed with a fictitious name or with any letter, mark or other designation, with intent thereby to cause annoyance to any person, or any per- son who shall send, deliver, mail, or in any manner cause to be sent, delivered or mailed any paper or document simulating or intended to simulate a summons, complaint, writ or court process of any kind, is guilty of misdemeanor. (Amended by L. 1917, ch. 348, in effect Sept. 1, 1917.) Derivation: Penal Code, § 559, as amended L. 1891, ch. 120, § 1. Foley V. Xavier (1905), 104 App. Div. 1, 2, 93 N. Y. Supp. 289; People v. Wickes (1906), 112 App. Div. 39, 98 N. Y. Supp. 163; BiggS v. People, 8 Barb. 547; People v. Cadman, 57 Cal. 562; see also Hartnett v. Plumbers' Supplies Assn., 169 Mass. 229; People v. Loveless, 29 N. Y. L. J. 365, 84 N. Y. Supp. 1115. § 552. Divulging contents of telegraphic or telephonic mes- sages. A person who : 1. "Wrongfully obtains, or attempts to obtain, any knowledge of a telegraphic or a telephonic message by connivance with a clerk, 110 Art. 50] COMMUNICATIOIT [§ 553 operator, messenger, or other employee of a telegraph or telephone company; or, 2. Bsing such cleric, operator, messenger or other employee, wilfully devulges to anyone but the persons for whom it was in- tended, the contents or the nature thereof of a telegraphic or telephonic message or dispatch intrusted to him for the trans- mission or delivery, or of which contents he may in any manner become possessed, or occupying such position in a telegraph office shall wilfully refuse or neglect duly to transmit or deliver mes- sages received at such office, except when such telegraphic or telephonic message or dispatch is in aid of or used to abet or carry on any unlawful business or traffic, or to perpetrate any criminal offense, and when it shall appear that any offense at law or unlawful business- or traffic is being carried on or conducted in whole or in part by means of a telegraphic or telephonic mesi- sage or dispatch, it shall be the duty of any corporation or em- ployee having knowledge of the same, to withhold such dispatch from delivery, and to further furnish to any public officer whose duty it is to prosecute any offense at law so aided and abetted, all information in their possession, relating to said unlawful busi- ness or traffic; and to further assist in the identification of any person aiding or abetting in or conducting any such unlawful business or traffic; and any violation of this section, or refusal or neglect to furnish information as provided hereinbefore, is punishable by a fine of not more than one thousand dollars or by. imprisonment for not more than two years, or by both such fine and imprisonment. Dexivation: Penal Code, § 641, as amended L. 18U5, cli. 727, S 1; I^ 1901, ch. 661, § 1. § 553. Opening or publishing a letter, telegram or private paper. A peirson who wilfully, and without authority: 1. Opens or reads, or causes to be opened or read, a sealed letter, telegram, or private paper; or, 2. Publishes the whole or any portion of such a letter, or telegram, or private paper, knowing it to have been opened or read without authority; or, 3. Takes a letter, telegram or private paper, belonging to an- other, or a copy thereof, and publishes the whole or any portion thereof; or, 111 § 553] COMMUlflCATIOISr [Art 50 4. Publishes the whole or any portion of such letter, telegram, or private paper, knowing it to have been taken or copied without authority; or, 5. Publishes or causes to be published, or connives at the publi- cation of any letter, telegram, or .private paper or of any portion of any letter, telegram, or private paper found on, or among the effects of, any person who has been dangerously wounded, or who has committed suicide, or who has died suddenly, or who has been found dead, unless such letter, telegram, or private paper shall have been produced pursuant to law before a coroner at an in- quest, and the publication of such letter, telegram, or private paper, or of such portion of such letter, telegram, or private paper shall have been declared by that coroner in writing to be neces- sary to aid in the discovery of a crime, or of the identity of the wounded or deceased person; or, 6. Any person having or obtaining access, either with or with- out the consent of the lawful owner, to any original list, com- pilation or other collection of the names of customers or sub- scribers not lees than five hundred in number, or to any other original list, compilatioil or other collection of names not less than five hundred in number, used in connection with any lawful business or occupation whatsoever, and who, without the consent of such lawful owner, shall take possession of any such original list, compilation, or other collection, or any part thereof, or shall make or cause to be made, or take possession of, a copy or dupli- cation thereof, or of any part thereof, or who shall aid, abet or incite any other person to take or to copy or to cause to be copied or taken, any .such list, compilation or collection, or any part thereof; or, 7. Any person who may have heretofore obtained or may here- after obtain any such list, compilation or other ooUeotion specified in subdivision six hereof, or any part thereof, or any copy or duplication of such list, compilation or collection or any part thereof, or the information contained in any such list, compila- tion., collection or any part thereof, and who, without the consent of the lawful owner of the original of any such list, oompilatinn or collection, and with notice or knowledge of his rights, may ail any time hereafter, make use of or attempt to make use of any such list, compilation or collection, or any part thereof, or of any copy or duplication of the whole or any part thereof, or of the information contained in any such list, compilation, collection or 112 Art. 50] COMMUmCATION B 553 copy or duplication or any part thereof, for his own benefit or advantage, or that of any person other than said lawful owner, Is guilty of a misdemeanor. Derivation: Penal Code, § 642, as amended L. 1895, ch. 287, § I ; L. 1900, ch. 588, 5 1 ; L. 1905, ch. 441, § 1. MoCormack v. Perry (1888), 47 Hun, 72; Withop t Holmes Co. T. BojM (1908), 61 Miao. 130; see also United States t. Hilbury, 29 Fed. 70S. lit § 570] COMPOUNDIJMG CKIME. [Art 5a ARTICI.E 52. COUPOUNDIIfG CRIME. Section 570. Punishment for compounding crime. 6Vi. Conviction of primary offender not neeessai-y- § 570. Punishment for compounding crime. A person who takes money or other property, gratuity or reward, or an engagement or promise therefor, upon an agreement or understanding, express or implied, to compound or conceal a crime, or a violation of statute, or to abstain from, discontinue, or delay, a prosecution therefor, or to withhold any evidence thereof, ex- cept in a case whe.re a compromise is allowed by law, is guilty: 1. Of a felony, punishable by imprisonment in a state prison for not more than five years, where the agreement or understand- ing relates to a felony punishable by death, or by imprisonment in a state prison for life; 2. Of a felony, punishable by imprisonment in a state prison for not more than three years, where the agreement or under- standing relates to another felony; 3. Of a misdemeanor, punishable by imprisonment in a county jail for not more than one year, or by fine of not more than two hundred and fifty dollars, or both, where the agreement or under^ standing relates to a misdemeanor, or to a violation of a statute for which a pecuniary penalty or forfeiture is prescribed. OeriTatlon: Penal Code, { 126. Kissock V. House (1880), 23 Hun, 35, 38; Buck v. First National Bank, 27 Mich. 293 ; see also Daimouth v. Bennett, 15 Barb. 54 1 ; Conderman v. Trench- ard, 58 Barb. 165; Conderman v. Hicks, 3 Lans. 108; People v. Bishop, 5 Wend. Ill; Collins' Case, 4 C. H. Rec. 130; Gilmore's Case, 2 C. H. Rec. 2D; Plumer v. Smith, 5 N. H. 553; McMahon v. Smith, 47 Conn. 221, 30 Am. Rep. 67; Pearce v. Wilson, 111 Pa. St. 14, 56 Am. Rep. 243; Jones v. Rice, 18 Pick. 440; Kier v. Lehman, C C. B. 308; Gardner v. Maxey, 9 B. Mon. 90; Peed V. McKee, 42 Iowa, 649; Kimbrough v. Lane, 11 Bush. (Ky.) 556; Clark V. Ricker, 14 N. H. 44; Shaw v. Spooner, 9 N. H. 197; Shaw v. Reed, 30 Me. 105; Bowen v. Buck, 28 Ct. 308; Hinesborough v. Summer, 9 Vt. 23; Com. V. Johnson, 3 Cush. 454; Fay v. Oatley, C Wis. 42; Halcomb v. Stimpson, 8 Vt. 141; Price v. Summers, 2 Southard, 578; Robinson v. Crenshaw, 2 Stew. & Port. 276; Maurer v. Mitchell, 9 Watts &, Serg. 0); Bothwell v. Brown, 51 III. 234; Plumer v. Smith, 5 N. IL 553; Com. v. Pease, 16 Mass. 91; Bell T. Wood, 1 Bay (S. C.) 244; HinesburK v. Summer, fl Vt. 23; Reg. v. Burgess, 114 Art. 52./ COMPOUNDING CKIME [§ 571 10 Q. B. Div. 141, 15 Cox C. C. 779, 30 Eng. Rep. 002; Reg. v. Burgess, 10 Q. B. Div. 141, 15 Cox C. C. 779, 30 Eng. Rep. 062. § 571. Conviction of primary offender not necessary. Upon the trial of an indictment for compounding a crime, it is not necessary to prove that any person has been convicted of the crime or violation of statute, in relation to which an agreement or understanding herein prohibited was made. Derivation: Fenal Code, i 120. People V. Buckibnd, 13 Wend. 692. lis. 580] CONSPIRACY [Art M ARTIOIiE 54. CONSPIRACY. ScoTlOlf 580. Definition and punishment of conspirMj. 681. Conspiracies against peace of the state. 682. Punishable conspiracies. 583. Overt act, when necessary. § 580. Definition and punishment of conspiracy. If two or mo(re persons conspire: 1. To commit a crime; or, 2. Falsely and maliciously to indict another for a crime, or to procure another to be complained of or arrested for a crime; or, 3. Falsely to institute or maintain an action or special proceed- ing; or, 4. To cheat and defraud another out of property, by any means which are in themselves criminal, or which, if executed, would amount to a cheat, or to obtain money or any other property by false pretenses ; or, 5. To prevent another from exercising a lawful trade or calling, or doing any other lawful act, by force, threats, intimidation, or by interfering or threatening to interfere with tools, implements, or property belonging to or used by another, or with the use or employment thereof; or, 6. To commit any act injurious to the public health, to public morals, or to trade or commerce, or for the perversion or obstruc- tion of justice, or of the due administration of the laws, Each of them is guilty of a misdemeanor. DerlvatloB: Penal Code, § 168. Elkin V. People (1863), 28 N. Y. 177, 24 How. Pr. 272; Ormsby v. People (1873), 53 N. Y. 472; Kelley v. People (1874), 66 N. Y. 565, 14 Am. Rep. 342, aff'g 2 Th. * C. 157; People ex rel. Lawrence t. Brady (1874), 56 N. Y. 190; People T. Powell (1876), 63 N. Y. 88, aff'g 5 Hun, 169; Adams v. People (1876), 9 Hun, 89; People v. Lyon (1883), 1 N. Y. Cr. 400, 99 N. Y. 219; Buffalo Lubricating Oil Co. v. Everest (1883), 30 Hun, 686; People v. Mur- phy (1885), 3 N. Y. Cr. 339; People v. Basaford (1885), 3 N. Y. Cr. 219; People V. Wilzig (1886), 4 N. Y. Cr. 403; People v. Kostka (1886), 4 N. Y. Cr. 429; People v. Sharp (1887), 45 Hun, 460, 6 N. Y. Cr. 389, 469; People ex rel. Gill T. Smith (1887), 5 N. Y. Cr. 609; State v. Glidden (1887), 65 Conn. 46, 3 Am. St. Rep. 23, 6 N. Y. Cr. 321; People v. Pavlik (1888), 7 N. Y Cr. 80, 3 N. Y. Supp. 232; People r. Squire (1888), 6 N. Y. Cr. 262, 20 Abb .-6 Art. 54] ' CONSPIRACY [§ 580 N. C. 369; People ex rel. Gill v. Walsh (1888), 6 N. Y. Cr. 292; Crump v. Com. (1888), 84 Va. 927, 10 Am. St. Eep. 895, 6 N. Y. Cr. 342, 38 Alb. L. J. 4; Leonard v. Poole (1889), 114 X. Y. 377, aff'g 55 N. Y. Super. 213; People T. Everest (1889), 51 Hun, 19, 25, 3 N. Y. Supp. 612; People v. North River Sugar Refining Co. (sugar) (1889), 54 Hun, 354, aff'd 121 N. Y. 582, 3 N. Y. Supp. 401, 7 N. Y. 406; People v. Snaith (1890), 57 Hun, 334, 10 N. Y. Supp. 689; People v. Flack (1890), 125 N. Y. 324, 8 N. Y. Cr. 88, rev'g 57 Hun, 48, 10 N. Y. Supp. 275; Thomas v. Mut. Protective Union (1890), 121 N. Y. 50, rev'g 49 Hun, 171, 2 N. Y. Supp. 195; People v. Kief (1891), 126 N. Y. 661, aff'g 58 Hun, 337, 11 N. Y. Supp. 926, 12 N. Y. Supp. 896; Deuber Watch Case Co. v. Howard, etc., Co. (1893), 3 Misc. 585, 24 N. Y. Supp. 647 ; Reynolds v. Everett ( 1893 ) , 67 Hun, 294, 22 N. Y. Supp. 306 ; People v. Sheldon (1893), 139 N. Y. 251, 36 Am. St. Eep. 690, 23 L. E. A. 221, aff'g ()6 Hun, 590, 21 N. Y. Supp. 859; Drake v. Seibold (1894), 81 Hun, 178, 30 N. Y. Supp. 697; People v. McKane (1894), 7 Misc. 478, 28 N. Y. Supp. 397; Davis V. Zimmerman (1895), 91 Hun, 489, 36 N. Y. Supp. 303; People v. Duke (1897), 19 Misc. 294, 44 N. Y. Supp. 336; People v. Peckens (1897), 153 N. Y. 576, 12 N. Y. Cr. 433, aff'g 12 App. Div. 626, 43 N. Y. Supp. 1160; Matthews v. Shankland (1898), 25 Misc. 611, 56 N. Y. Supp. 123; People v. Van Tassel (1898), 156 N. Y. 561, aff'g 26 App. Div. 445, 50 N. Y. Supp. 53; People V. Willis (1899), 158 N. Y. 392, aff'g 34 App. Div. 203, 54 N. Y. S. C42; People V. Chandler (1900), 54 App. Div. HI, 15 N. Y. Cr. 165, 66 N. Y. Supp.* 391; People v. Radt (1900), 15 N. Y. Cr. 174, 71 N. Y. Supp. 846; People V. Peterson (1901), 60 App. Div. 118, 15 N. Y. Cr. 421, 69 N. Y. Supp. 1)41; Nat. Protective Assoc, v. Gumming (1902), 170 N. Y. 315; People v. Goslin (1902), 67 App. Div. 18, 73 N. Y. Supp. 520, 6 N. Y. Cr. 257; Park & Sons Co. V. National Wholesale Druggists Assn. (1903), 175 N. Y. 1, aff'g 54 App. Div. 223, 64 N. Y. Supp. 276, 66 N. Y. Supp. 615; People v. Hummel 1906), 49 Misc. 136, 98 N. Y. Supp. 713, 20 N. Y. Cr. 240, 119 App. Div. 153, 105 N. Y. Supp. 869; People v. McFarlin (1904), 43 Misc. 591, 89 N. Y. Supp. 527, 18 N. Y. Cr. 414; People v. Weichers (1904), 94 App. Div. 19, 87 N. Y. Supp. 897, 18 N. Y. Cr. 351, aff'd 179 N. Y. 459; People v. Eathbun (1904), 44 Misc. 93, 89 N. Y. Supp. 746, 18 N. Y. Cr. 461; Kellogg v. Sowerby (1907), 190 N. Y. 370, rev'g 114 App. Div. 916, 100 N. Y. Supp. 1123; People ex rel. Burnham v. Flynn (1907), 189 N. Y. 180, rev'g 114 App. Div. 578, 49 Misc. 328, 99 N. Y. Supp. 198; People v. Klaw (1907), 55 Misc. 72, 106 N. Y. Supp. 341; Eussell & Sons v. Stampers & G. L. L. U. No. 22 (1907), 57 Misc. 96, 107 N. Y. Supp. 303; People v. Miles (1908), 123 App. Div. 862, 108 N. Y. Supp. 510; see also People v. Barrett, 1 Johns. 66; People v. Chase, 16 Barb. 495; People v. Eckford, 7 Cow. 535; Emmanuel's Case, 6 City Hall Rec. 33; People V. Fisher, 14 Wend. 1, 28 Am. Dec. 509 note; Hitchcock's Case, 6 City Hall Rec. 43; Lambert v. People, 9 Cow. 578; Leggett v. Postley, 2 Paige, 599; Lewis' Case, 5 City Hall Rec. 129; Master Stevedores' Assn. v. Walsh, 2 Daly, 1, 13; People v. Mather, 4 Wend. 229; Johnson v. Melnhardt, 61 How. Pr. 168; People V. Melvin Yates, 2 Wheel Cr. Caa. 269, 6 City Hall Eec. 35 ; People v. Olcott, 2 Johns. Cas. 301; Old Dominion Co. v. McKenna, 18 Abb. N. C. 262; Eobbins' Case, 4 City Hall Eec. 1 ; Storm's Case, 1 City Hall Eec. 169 ; People T. Trequecr, 1 Wheel. Cr. Cas. 142; State v. Setter, 54 Conn. 461, 41 Alb. L. J. 129, 14 Am. St. Eep. 121; Spies v. People, 122 111. 1, 3 Am. St. Kep. 320; 117 §§ 581-583] COifSPIEACY [Art. 54 Carew v. Rutherford, 106 Mass. 1; Walter v. Cronin, 107 Mass. 555; People V. Richards, 1 Mich. 216, 51 Am. Dec. 75, 79, note; Sta^e v. Barnum, 15 N. H. 396; State v. Donaldson, 32 J\'. J. L. 151; State v. Stewart, 59 Vt. 273, 59 Am. Rep. 710; People v. Miller, 22 Pae. 934; Com. v. Hunt, 4 Mete. Ill; N yea V. State, 1 Crim. L. Mag. 215; Duprey's Mussel Slough Case, 5 Fed. 680; Beg. V. Rollins, 17 Ad. & El. (N. S.) 671; Slaughter-IIouse Cases, 16 Wall. 36, 116; Bowen v. Hall, 2 Q. B. Div. 333, 337; Gregory v. Duke, etc., 6 M. & G. 205; Gunther v. Aator, 4 J. B. Moore, 12; Mogul Co. v. MacGregor, 15 Q. B. Div. 486; Rafael v. Verein, 2 W. Bl. 1055; Lumby v. Gage, 2 El. & Bl. 216; Reg. V. Bauld, 15 Eng. Rep. 316; Tarston v. McGalliter, Peake, 105. § 581. Conspiracies against peace of the state. If two or more persons, being out of this state, conspire to commit any act against the peace of this state, the commission or attempted commission of whic^h, within this state, would bo treason against the state, they are punishable by imprisonment in a state prison not exceeding ten years. Derivation: Penal Code, § 169. People V. McFarlin (1904), 43 Misc. 593, 89 N. Y. Supp. 527, 18 N. Y. Cr. 414. § 582. Punishable conspiracies. ITo conspiracy is punishable criminally unless it is one of those enumerated in the last two sections, and the orderly and peaceable assembling or co-operation of persons employed in any calling, trade or handicraft for the purpose of obtaining an advance in the rate of wages or compensation, or of maintaining snch rate, is not a conspiracy. Associations, corporate or otherwise, of farmers, gardeners or dairymen, including livestock farmers and fruit grow- ers, engaged in making collective sales or marketing for its mem- bers or shareholders of farm, orchard or dairy products produced by its members or shareholders are not conspiracies. Contracts, agreements, arrangements or combinations heretofore or hereafter made by such associations or the members, officers or directors thereof in making such collective sales and marketing and pre- scribing the terms and conditions thereof are not conspiracies and they shall not be construed to be injurious to trade or commerce. (Amended by L. 1918, ch. 491, in effect May 6, 1918.) Derivation: Penal Code, § 170, as amended L. 1882, eh. 384, § 1. People ex rel. GiU v. Walsh (1888), 6 N. Y. Cr. 292, aff'g 5 N. Y. Cr. 507; People v. Barondess (1891), 61 Hun 577, 8 N. Y. Cr. 234, rev'd 133 N. Y. 118 Art. 54]; CONSPIRACY [§§ 583, 584 649, 8 N. T. Cr. 376, 16 N. Y. Supp. 436; Davia Machine Co. v. Robinson (1903), 41 Miac. 333, 84 N. Y. Supp. 837; People v. McFarlin (1004), 43 Misc. 594, 89 N. Y. Supp. 527, 18 N. Y. Cr. 414; Jacobs v. Cohen (1905), 183 N. Y. 212, rev'g 99 App. Div. 481, 90 N. Y. Supp. 854 ; see also Master Steve- dores' AsEn. V. Welsh, 2 Daly 1; Rogers v. Evarts, 17 N. Y. Supp. 264; Zeig- ler V. Nolan, 2 City Ct. Eep. 54. § 583. Overt act, when necessary. No agreement except to commit a felony npon the person of another, or to commit arson or burglary, amounts to a conspiracy, unless some act beside such agreement be done to effect the object thereof, by one or more of the parties to such agreement. DeriTation: Penal Code, § 171. People V. Flack (1890), 125 N. Y. 324, 43 Alb. L. J. 64; People v. Brickner (1891), 8 N. Y. Cr. 217, 15 N. Y. Supp. 528; Reynolds v. Everett (1803), 67 Hun 304, 22 N. Y. Supp. 306; People v. Sheldon (1893), 139 N. Y. 251, aff'g 66 Hun 590, 21 N. Y. Supp. 859; People v. Willis (1899), 158 N. Y. 395, 14 N. Y. Cr. 72, aff'g 34 App. Div. 203, 54 N. Y. Supp. 642; People v. Petersen (1901), 60 App. Div. 120, 69 N. Y. Supp. 941; People v. Wiechers (1904), 94 App. Div. 19, 87 N. Y. Supp. 807, 18 Crim. Rep. 354, aff'd 179 N. Y. 459; People V. Rathbun (1904), 44 Misc. 91, 89 N. Y. Supp. 746, 18 Crim. Eep. 461; Green v. Davies (1905), 100 App. Div. 359, 91 N. Y. Supp. 470; People ▼. Summerfield (1905), 48 Miac. 246, 96 N. Y. Supp. 502, 19 Crim. Eep. 507; People ex rel. Burnham v. Flynn (1906), 114 App. Div. 580, 100 N. Y. Supp. 31; People v. Klaw (1907), 55 Misc. 72, 106 N. Y. Supp. 341, 21 Crim. Eep. 355; People t. Miles ( 1908), 123 App. Div. 873, 108 N. Y. Supp. 510; see also People V. Chase, 16 Barb. 495; People v. Murray, 95 N. Y. Supp. 107; People V. Squire, 20 Abb. N. C. 375. § 584. Witnesses' privileges. No person shall be excused from attending and testifying, or pro- ducing any books, papers or other documents before any court, magistrate, or referee, upon any investigation, proceeding or trial, for a violation of any of the provisions of this article, upon the ground or for the reason that the testimony or evidence, document- ary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or for forfeiture ; but no per- son shallbe prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation, proceeding or triaL (Added by L. 1910, ch. 395, in effect Jirne 6, 1910.) 119 600] CONTEMPT OF COURT fArt. £« ARTICLE 56. CONTEMPT OF COURT. Sbction 600. Criminal contempt. 601. Punishment for criminal contempt. 602. Indictment for contempt. § 600. Criminal contempt. A person who commits a contempt of court, of any one of the following kinds, is guilty of a misdemeanor: 1. Disorderly, contemptuous, or insolent behavior, committed during the sitting of the court, in its immediate view and presence and directly tending to interrupt its proceelings or to impair the respect due to its authority ; 2. Behavior of the like character, committed in the presence of a referee or referees, while actually engaged in a trial or hearing, pursuant to the order of the court, or in the presence of a jury, while actually sitting for the trial of a cause, or upon an inquest or other proceeding authorized by law; 3. Breach of the peace, noise, or other disturbance, directly tending to inteirrupt the proceedings of a court, jury, or referee; 4. Wilful disobedience to the lawful process or other mandate of a court; 5. Resistance wilfully, offered to its lawful process or other mandate ; 6. Contumacious and unlawful refusal to be sworn as a witness, or, after being sworn, to answer any legal and proper interroga- tory; 7. Publication of a false or grossly inaccurate report of its pro- ceedings. But no pei-son can be punished as provided in this sec- tion, for publishing a true, full, and fair report of a trial, argu- ment, decision, or other proceeding had in court. DerlTation: Penal Code, § 143. Matter of Hackley (1861), 24 N Y. 74, 12 Abb. 150, 21 How. 54; People V. Albany, etc., R. Co. (1862), 20 How. Pr. 358, aff'd 24 N. Y. 261, 37 Barb. 216; People v. Fancher (1874), 2 Hun, 226; Loop v. Gfould (1879), 17 Hun, 686; People ex rel. Sherwin v. Mead (1882), 28 Hun, 227, 92 N. Y. 416; People T. Hovey (1883), 29 Hun, 382, 92 N. Y. 554; Sherwin v. People (1885), 100 N. Y. 361, 3 N. Y. Or. 624; People ex rel. Munsell v. Oyer and Terminer Art. 66j CONTEMPT OF COURT [§ 601 (1885), 101 N. Y. 245, 4 N. Y. Cr. 70, 3 How. Pr. (N. S.) 413, rev'g 36 Hun, 277; King v. Flynn (1885), 37 Hun, 329; People ex rel. Joneg y. Davidaon (1885), 36 Hun, 471; People v. Sharp (1887), 45 Hun, 493, 107 N. Y. 427; Matter of Choate (1890), 56 Hun, 351, 1 N. Y. Cr. 1, 41 Alb. L. J. 287; Peo- ple V. Meakim (1892), 133 N. Y. 225, 8 N. Y. Cr. 414, 308, 15 N. Y. Supp. 917, 21 N. Y. Supp. 1103; People ex rel. Taylor v. Forbes (1894), 143 N. Y. 219, rev'g 77 Hun, 612, 28 N. Y. Supp. 1123; People ex rel. Barnes v. Ct. ot Sess. (1895), 147 N. Y. 290, rev'g 82 Hun, 242, 31 N. Y. Supp. 373; People ex rel. Lewisohn v. O'Brien (1902), 39 Misc. 458, 80 N. Y. Supp. 198, rev'd 81 App. Div. 51, 80 N. Y. Supp. 816, aff'd 176 N. Y. 253; People ex rel. Lewi- sohn V. General Sessions (1904), 179 N. Y. 594, aff'g 96 App. Div. 201, 89 N. Y. Supp. 364; Chappell v. Chappell (1906), 116 App. Div. 574, 101 N. Y. Supp. 846; People v. Blake (1907), 121 App. Div. 619, 106 N. Y. Supp. 319: see also Weeks v. Smith, 3 Afcb. Pr. 211; Conover v. Wood, 5 Abb. Pr. 84; People v. Marston, 18 Abb. Pr. 257; Bergh's Case, 16 Abb. Pr. (N. S.) 266; People V. Court of O. and T., 27 How. 14; Bowen v. Hunter, 45 How. 193; Clapp V. Lathrop, 23 How. Pr. 423; People ex rel. Valieste v. Dyckman, 24 How. Pr. 222; Clark v. Brooks, 26 How. Pr. 254; People v. Hefferman, 38 How. Pr. 402; Klungman's Case, 49 How. Pr. 484; Matter of Griffin, 1 N. Y. Supp. 7; Matter of Watson, 3 Lans. 408; Baker v. State, 82 Ga. 776, 14 Am. St. Eep. 192; Baker v. State, 4 L. E. A. 128, 11 Grim. L. Mag. 635; Bernard V. Leo, 7 Daily Reg. 1069, 1213; Bradley v. State, 111 Ga. 168, 36 S. E. 630, 50 L. R. A. 691, 78 Am. St. Rep. 157; Carter v. Com., 96 Va. 791, 32 S. E. 780, 45 L. R. A. 301; Cheadle v. State, 110 Ind. 301, 59 Am. Rep. 199; Matter of Cheeseman, 49 N. J. 137, 60 Am. Rep. 596; Cuddy's Case, 131 U. S. 33; State V. Frew, 24 W. Va. 416, 49 Am. Rep. 257; Matter of Gannon, 11 Pac. 240; Hale v. State, 55 Ohio St. 210, 45 N. E. 199, 36 L. R. A. 254, 60 Am. St. Rep. 691; Hill v. Crandall, 52 111. 70; Orman v. State, 24 Tex. App. 495; Matter of Percy, 2 Daly, 530; Matter of Savin, 131 U. S. 267; Sharon v. Hill, 24 Fed. 726; Smith v. Speed, 11 Okla. 95, 55 L. R. A. 402; Matter of Terry, 128 U. S. 289; Warner t. State, 12 Lea, 52; Watson v. People, 11 Colo. 4; Matter of Johnson, 20 Q. B. Div. 68, 38 Eng. Rep. 600 ; Plating Co. v. Farqu- harson, 17 Ch. Div. 49, 37 Eng. Rep. 163. § 601. Punishment for criminal contempt. A criminal act is not the less punishable as a crime, because it is also declared to be punishable as a contempt of court. Derivation: Penal Code, § 680. People ex rel. Sherwin v. Mead (1883), 92 N. Y. 415, aff'g 28 Hun, 227; People ex rel. McDonald v. Keeler (1885), 99 N. Y. 475, rev'g 32 Hun, 563; People ex rel. Lewisohn v. Wyatt (1902), 39 Misc. 456, 80 N. Y. Supp. 198, rev'd 81 App. Div. 51, 80 N. Y. Supp. 816, aff'd 176 N. Y. 263; see also Eagan v. Lynch, 3 Civ. Pro. 236. 12X § 602] CONTEMPT OF COUET [Art. 58 § 602. Indictment for contempt. Punishment far a contempt, as prescribed in article nineteen of the judiciary law, do'Cs not bar an indictment for the same offense ; but where a person who has been so punished is convicted on such an indictment, the court, in snntencing him, must take into consideration the previous punisnment. Derivation: Code of Civil Proc.. § i3. 1S>2 Art. 58 ( CONVICTION" [§§ 610-611 ABTICIf 5S CONVICTION. Sbrtion 610. Prisoner indicted may be convicted of lesser crime, or attempt Cll. No conviction on unsupported testimony in certain cases. § 610. Prisoner indicted may be convicted of lesser crime, or attempt. Upon the trial of an indictment, the prisoner may be convicted of the crime charged therein, or of a lesser degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a lesser degree of the same crime. Derivation: Penal Code, S 35. People V. Thompson (1869), 41 N. Y. 1; Keefe T. People (1869), 40 N. Y. 348, 7 Abb. (N. S.) 76; Euloff v. People (1871), 11 Abb. (N. S.) 246, 45 N. Y. 213, aff'g 5 Lans. 261; Murphy v. People (1874), 3 Hun, 114; Cox v. Peo- ple (1880), 80 N. Y. 500, aff'g 19 Hun, 430; Sindram v. People (1882), 88 N. Y. 196, aff'd 1 N. Y. Cr. 448; People v. McTameney (1883), 30 Hun, 505, 1 N. Y. Cr. 437, 66 Haw. Pr. 70, 13 Abb. N. C. 55; People v. McDonnell (1883), 1 N. Y. Cr. 366, 92 N. Y. 657; People v. Petmecky (1884), 2 N. Y. Cr. 452; People v. Sullivan (1885), 4 N. Y. Cr. 193; People v. McCallam (1885), 3 N. Y. Cr. 189; People v. Palmer (1887), 5 N. Y. Cr. 101, 43 Hun, 406; People v. Dartmore (1888), 48 Hun, 321, 2 N. Y. Supp. 310; People v. Willson (1888), 109 N. Y. 347; People v. Giblin (1889), 115 N. Y. 196; People V. O'Connell (1S91), 60 Hun, 113, 14 N. Y. Supp. 485; People ex rel. Young V. Stout (1894), 81 Hun, 336, 30 N. Y. Supp. 898; People v. Brocket* (1895), 85 Hun, 133, 32 N. Y. Supp. 511; People v. Mills (1904), 91 App. Div. 333, 86 N. Y. Supp. 529, 18 N. Y. Cr. 127; People v. Jaffe (1906), 185 N. Y. 497, 19 N. Y. Cr. 281, rev'g 112 App. Div. 516, 98 N. Y. Supp. 486; Matter of Bartholomew (1907), 106 App. Div. 371, 374, 94 N. Y. Supp. 512, 19 N. Y. Cr. 570; People v. Stacey (1907), 119 App. Div. 743, 104 N. Y. Supp. 615; see also People v. Didieu, 17 How. Pr. 224; People v. Lawton, 56 Barb. 126; People v. Lohman, 2 Barb. 216; Kevins v. People, 61 Barb. 307; People V. Long, 2 Edm. Sel. Gas. 129. 123 S 611] CONVICTION [Art. 58 § 611. No conviction on unsupported testimony in certain cases. [Kfepealed by L. 1909, oh. 524. In effect May 27, 1909. See §§ 71, 533, 2013, 2177.;? -m Art. 60] COI^VICT MADE GOODS [ji 620 ARTICLE 60. CONVICT MADE GOOIMSL Section 620. Unlawful dealing in convict made goods. § 620. Unlawful dealing in convict made goods. A person who: 1. Sells or exposes for sale convict made goods, wares or mer- chandise, without a license therefor, or having such license does not transmit to the secretary of state the statement required by article thirteen of the labor law ; or, 2. Sells, offers for sale, or has in his possession for sale any such convict made goods, wares or merchandise without the brand, mark or label required by article thirteen of the labor law; or 3. Removes or defaces or in any way alters such brand, mark or label, Is guilty of a misdemeanor, and upon conviction therefor shall be punished by a fine of not more than one thousand nor less than one hundred dollars, or by imprisonment for not less than ten days or by both such fine and imprisonment. Derivation: Penal Code, § 384b, added L. 18!)3. «li. 692, § 2, and amended L. 1894, ch. 698, § 5; L. 1896, oh. 931, 5 5; L. 1897, ch. 416, § 1. People V. Hawkins (1898), 157 N. Y. 1, 42 L. R. A. 490, 68 Am. St. Rep. 736, aff'g 20 App. Div. 494, 47 N. Y. Supp. 56; People ex rel. Treat v. Coler (1901), 166 N. Y. 144, aflF'g 56 App. Div. 459, 68 N. Y. Supp. 767; People v. Locnner (1903), 177 N. Y. 145, rev'd 197 U. S., aff'g 73 App. Div. 120, 76 N. Y. Supp. 396. 126 g§ C30-643] CONVICTS [Art. «9 ARTICLE 62. CONVICTS. Section 640. Convict protected by law. P41. Inipoiting foreign convict. 642. Master of vessel biingiag foreign convict. 643. Credi or of convict. 644. Convict voting. § 640. Convict protected by law. A convict sentenced to imprisonment is under the protection of the law, and any injury to his person, not authorized by law, is punishable in the same manner as if he were not senttnced or convicted. Derivation: Penal Code, § 709. Alamango v. Supervisors (1881), 25 Hun, 551. § 041. Importing foreign convict. An owner, master or commander of any vessel arriving from a foreign country, who l?nowing]y lands or permits to land at any port, city, harbor, or place within this state, any passenger, sea- man or other person who is a foreign convict of any crime which, if committed within this state, would be punishable therein, with- out giving notice thereof to the mayor of such city, or other prin- cipal municipal officer of such port or place, is guilty of a misdemeanor. DeriTaUon: Penal Code, § 153. § 642. Master of vessel bringing foreign convict. A person, being the master or commander of any vessel, or boat, arriving from a foreign country, who knowingly brings into this state a person who has been, or is a foreign convict of any offense, which if committed in this state would be punishable therein, is guilty of a misdemeanor. OeriTatlon: Penal Code, § 440. § 643. Creditor of convict. A person injured by the commission of a felony, for which the offender is sentenced to imprisonment in a state prison, is deemed 126 Art 621 CONVICTS [§ 644 the creditor of the offender, and of his estate after his death, withia the provisions of the statutes relating thereto. The damages sustained by the person injured by the felonious act, may be ascertained in an action brought for that purpose by him against the trustees of the estate of the offender, appointed under the provisions of the statutes, or the executor or aUuiiuis- trator of the offender's estate. Derivation: Penal Code, §§ 71G-7I7. Mairs v. Railroad Co. (1003), 175 N. Y. 413, afTg 73 App. Div. 2G5, 76 N. Y. Supp. 838. § 644. Convict voting. The prohibition to vote at an election, contained in any statute of the state, shall not apply to a person heretofore or hereafter convicted of any crime, who has been sentenced or committed therefor to one of the houses of refuge, or other reformatories organized under the statutes of the state. Derivation: Penal Code, f 711. People T. Harrington <1884). IS Abb. M. C 183, 1 How. Pr. (S. S.) 37, 3 n. K. Cr. l.'W. 141. §§ 660-6:61J COEPOKATIONS LArt. H4 ARTICLE 64. COBFOBATIONS. Section 660. Frauds in the organization of corporations. 661. Frauds in procuring organization of corporations. 662. Fraudulent issue of stocks and bonds. 663. Acting for foreign corporations not authorized to do business in this state. 664. Misconduct of officers and directors of stock corporations. 666. Misconduct of directors, officers, agents and employees of cor-, porations. 666. Unlawful use of certain titles in connection with corporate name. 667. Presumption of knowledge of corporate condition and busiuesb and of assent thereto by directors; definitions. 668. Misconduct at corporate elections. 669. Misconduct of officers and agents of pipe-line corporations. 670. Misconduct by officers and directors of life or casualty insurance corporations upon the co-operative or assessment plan or of fraternal beneficiary societies, orders or associations. § 660. Frauds in the organization of corporat.ons. A j)^rsoii who: 1. Without authority subscribes the name of another to or inserts the name of another in any prospectus, circular or otHer advertisement or announcement of any corporation or joint-stock association existing or intended to be formed, with intent to permit the same to be published, and thereby to lead persons toj believe that the person whose name is so subscribed ia an ofEcer, agent, member or promoter of such corporation or association ; or, 2. Signs the name of a fictitious person to any subscription for or agreement to take stock in any corporation, existing or pro- posed; or, 3. Signs to any such subscription or agreement the name of any person, knowing that such person does not intend in good faith to comply with the terms thereof, or under any understand- ing or agreement, that the terms of such subscription or agree- ment are not to be complied with or enforced. Is guilty of a misdemeanor. Derivation: Penal Code, § 590, as amended L. 1892, oh. 692, § 1. § 661. Frauds in procuring organization of corporations. An officer, agent or clerk of a corporation, or of persons propos- ing to organize a corporation, or to increase the capital stock of a corporation, who knowingly exhibits a false, forged or altered t?,8 Art. 64J CORPOEATI02fS [§ 662 book, paper, voudier, security or other instrument of evidence to any public oflBoer or board authorized by law to examine the organization of such corporation, or to investigate its afTairs, or to allow an increase of its capital, with intent to deceive such officer or board in respect thereto, is punishable by imprisonment in a state prison not exceeding ten years. DerlTstloat Penal Code, | 692, as amended L. 1892, ch. 662, § 20. People V. Helmer (1898), 154 N. Y. 596, 13 N. Y. Cr. 1; People t. Hegeman (1907), 57 Misc. 295, 109 N. Y. Supp. 539. § 662. Fraudulent issue of stocks and bonds. An officer, agent or other person in the service of any joint-stock company or corporation formed or existing under the laws of this state, or of the United States or of any state or territory thereof, or of any foreign government or country, who wilfully and knowingly, with intent to defraud: 1. Sells, pledges or issues, or causes to be sold, pledged or issued, or signs or executes, or causes to be signed or executed with intent to sell, pledge or issue, or causes to be sold, pledged or issued, any certificate or instrument purporting to be a cer- tificate or evidence of the ownership of any share or shares of such company or corporation, or any bond or evidence of debt, or writing purporting to be a bond or evidence of debt of such com- pany or corporation, without being first thereto duly authorized by such company or corporation, or contrary to the charter or laws under which such corporation or company exists, or in excess of the power of such company or corporation or of the limit imposed by law or otherwise upon its power to create or issue stock or evidences of df bt ; or, 2. Eeissues, sells, pledges or disposes of, or causes to be reis- sued, sold, pledged or disposed of, any surrendered or canceled certificates, or other evidence of the transfer or ownership of any such share or shares, Is punishable by imprisonment for a term not exceeding seven years, or by a fine not exceeding three thousand dollars, or by both. Derivation: Penal Code, § 591, as amended L. 1892, ch. 662, § 19. People V. Hegeman (1907), 57 Misc. 295, 109 N. Y. Supp. 53». 129 §§ 663-664] CORPORATIOIs^S [Art. 64 § 663. Acting for foreign corporations not authorized to do business in this state. Any person, or corporation, who: 1. Acts as agent or representative of any mortgage, loan or investment corporation or building and mutual loan corporation or association or co-operative savings and loan association organ- ized outside of this state, while such mortgage, loan or investment corporation or building and mutual loan corporation or associa- tion or co-operative savings and loan association shall not be authorized under a license of the superintendent of banks to do business in this state; or, 2. Acts as agent or representative in this state of a foreign corporation, other than a moneyed corporation, with the words " trust," " bank," " banking," " insurance," " assurance," " in- demnity," " guarantee," " guaranty," " savings," " investment," " loan," " benefit," or any other words or terms indicating, repre- senting or holding out such company to be a moneyed corporation as a part of its name or corporate title, or who, in connection with such corporation or otherwise, shall put forth any sign con- taining said name, or who shall advertise or publish the said company as doing business in this state, directly or indirectly, through agents or otherwise, while such company shall not be authorized under a certificate procured from the secretary of state pursuant to section fifteen of the general corporation law to do business in this state, Is guilty of a misdemeanor. DeriTBtlon: Penal Code, § .?93, as amended L. 18n2, cli. 002, 5 1 ; L. 1904, ch. 480, S 1; L- 1908, cli. 118. § 664. Misconduct of officers and directors of stock corpora- tions. A director of a stock corporation, who concurs in any vote or act of the directors of such corporation, or any of them, by which it is intended : 1. To make a dividend, except from the surplus profits arisirg from the business of the corporation, and in the cases and manner allowed by law; or, 2. To divide, withdraw, or in any manner pay to the stock- holders, or any of them, any part of the capital stock of the cor- poration; or to reduce such capital stock without the consent of the legislature; or, ISO Art. 64] COEP ORATIONS [§ 665 3. To discount or receive any note or other evidence of debt in payment of an instalment of capital stock actually called in, and required to be paid, or with intent to provide the means of mak- ing such payment ; or, 4. To receive or discount any note or other evidence of debt with intent to enable any stockholder to withdraw any part of the money paid in by him on his stock; or, 5. To apply any portion of the funds of such corporation, except surplus profits, directly or indirectly, to the purchase of shares of its own stock, Is guilty of a misdemeanor. An officer or director of a stock corporation who: 6. Issues, jiarticipates in issuing, or concurs in a vote to is^uo any increase of its capital stock beyond the amount of the capital stock thereof, duly authorized by or in pursuance of law; or, 7. Sells, or agrees to sell, or is directly or indirectly inter- ested in the sale of any share of stock of such corporation, or in any agreement to sell the same, unless at the time of such sale or agreement he is an actual owner of such share, Is guilty of a misdemeanor, punishable by imprisonment for not less than six months, or by a fine not exceeding five thousand dollars, or by both. Derivation: Penal Code, $ 504 and § 610, as amended L. 1892, ch. 092, SI. Berryman v. Bankers' Life Insurance Co. (1907), 117 App. Div. 737, 102 N. Y. Supp. 695. § 665. Misconduct of directors, ofHcers, agents and employees of corporations. A director, officer, agent or employee of any corporation or joint-stock association who: 1. Knowingly receives or possesses himself of any of its prop- erty otherwise than in payment for a just demand, and with intent to defraud, omits to make or to cause or direct to be made a full and true entry thereof in its books and accounts; or, 2. Makes or concurs in making any false entry, or concurs in omitting to make any material entry in its bonks or accounts; or, 3. Knowingly (a), concurs in making or publishing any written report, exhibit or statement of its afFaii's or pecuniary condition containing any material statement which is false, or (b), omits or concurs in omitting any statement required by law to be con- tained therein; or, lyi § 666] CORPORATIONS [Art. 64 4. Having the custody or control of its books, wilfully refuses or neglects to make any proper entry in the stock book of such corporation as required by law, or to exhibit or allow the same to be inspected, and extracts to be taken therefrom by any person entitled by law to inspect the same, or take extracts therefrom ; or, 5. If a notice of an application for an injunction affecting the property or business of such joint-stock association or corporation is served upon him, omits to disclose the fact of such service and the time and place of such application to the other directors, offi- cers and managers thereof; or, 6. Refuses or neglects to make any report or statement law- fully required by a public officer, la guilty of a misdemeanor. Derlvatlont Penal Code, § 611, as amended L. 1892, ch. 692, § I; subds. 2 and 3, as amended L. 1906, ch. 286, §§ 1, 2; subd. 4, as amended L. 1893, cb. 192, § 1. Davenport v. Prentice (1908), 126 App. Div. 458. § 666. Unlawful use of certain titles in connection with cor- porate name. Any person, association or corporation, other than a moneyed corporation, who shall within this state directly or indirectly, or through agents or representatives transact business under, or in anywise use a corporate name or a corporate title with the words " trust," " bank," " banking," " insurance," " assurance," " in- demnity," " guarantee," " guaranty," " savings," " investment," " loan," " benefit," as a part of such name or title, is guilly of a misdemeanor; provided, however, that any domestic corporation, other than a moneyed corporation, heretofore duly organized and heretofore duly authorized by law to use and on April twenty- ninth, nineteen hundred and four, lawfully using either or any of such words as a part of its lawful corporate title, may lawfully continue to use such corporate title, provided and if it, being a corporation other than a moneyed corporation, shall wherever the name shall be printed, written, engraved or displayed, add, in legible English characters, of substantially the same size and style as the name, directly under the said name or immediately in con- nection therewith, wherever so used, the words " not a moneyed corporation." Derivation; Penal Code, § 608, added L. 1904, ch. 489, S 2. 132 Art. 64] CORPORATION'S [§§ 66'7-668 § 667. Presumption of knowledge of corporate condition and business and of assent thereto by directors ; definitions. It is no defense to a prosecution for a violation of the provisions of this article and article twenty-six, that the coi-poration is a foreign corporation, if it carries on business or keeps an office therefor in this state. The term " director " as used in this article and article twenty- six includes any of the persons having, by law, the direction or management of the affairs of a corporation, by whatever name described. A director of a corporation or joint-stock association is deemed to have such a knowledge of the affairs of the corporation or association as to enable him to determine whether any act, pro- ceeding or omission of its directors is a violation of this article and article twenty-six. If present at a meeting of the directors at which any act, proceeding or omission of such directors in violation of this article and article twenty-six occurs, he must be deemed to have concurred therein, unless he at the time causes or in writing requires his dissent therefrom to be entered on the minutes of the directors. If absent from such meeting, he must be deemed to have concurred in any such violation, if the facts constituting such violation appear on the record or minutes of the proceedings of the board of directors, and he remains a director of the corporation for six months thereafter without causing or in writing requiring his dissent from such violation to be entered on such record of minutes. Derivation: Penal Code, § 614, as amended L. 1892, ch. 692, § 1. § 668. Misconduct at corporate elections. Any person who: 1. Being entitled to vote at any meeting of the stockholders or bondholders or both of a stock corporation, sells his vote, or who issues a proxy to vote to any person for any sum of money oi thing of value, except as expressly authorized by law ; or, 2. Acts as an inspector of election at any such meeting and violates an oath taken by him in pursuance of law as such in- spector, or violates the provisions of an oath required by law to be taken by him as such inspector, or is guilty of any dishonest or corrupt conduct as such inspector, Is guilty of a misdemeanor. Derivatian: Penal Code, § 613, as amended L. 1892. ch. 692, § 1, subd, 2, as amended L. 1909, ch. 588, § 3. V6-6 § 669] CORPORATIONS [Art. 64 § 669. Misconduct of officers and agents of pipie-line corpora- tions. Any officer, agent or manager of a pipe-line corporation who: 1. Neglects or refuses to transport any product delivered for transportation, or to accept and allow a delivery thereof in the order of application, according to the general rules of the cor- poration, as provided by law; or, 2. Charges, accepts or agrees to accept for such receipt, trans- portation and delivery, a sum different from the amount fixed by such regulations; or, 3. Allows or pays, or agrees to allow or pay, or suffers to be allowed or paid or repaid, any draw-back, rebate or allowance, so that any person shall, by any device, have or procure any trans- portation of products over such pipe-line at a less rate or charge than is fixed in such regulations. Is guilty of a misdemeanor, punishable by a fine not exceeding one thousand dollars, or by imprisonment not exceeding six months, or by both. Derivaticn: Penal Ciode, { 612, M amended L. 1892, eh. 692, { I. § 670. Misconduct by officers and directors of life or casualty insurance corporations upon the co-operative or assessment plan or of fraternal beneficiary societies, orders or associations. Any ofiBcer or director of a life or casualty insurance corporation upon the co-operative or assessment plan or of a fraternal beneficiary society, order or association, who shall sell his position as such officer or director for any money or valuable consideration, or who shall accept or receive, directly or indirectly, any money or valuable consideration for his resignation as such officer or director, shall be guilty of a felony if the money or valuable consideration accepted or received for the sale or resignation of such position as officer or director shall be more than five hundred dollars, and, if a less amount, shall be guilty of a misdemeanor. (Added by L. 1910, ch. 620, in efi^ect June 24, 1910.) 134 Art. 66] CRIME AGAINST NATURE [§§ 690-69i ARTICI.E 68. CBXBCE AGAINST NATUBE. 8ICTI0N 600. Crime against nature; sodomy, col. Penetration sufficient. § 690. Crime against nature ; sodomy. A person who carnally knows in any manner any animal or bird; or carnally knows any male or female person by the anus or by or with the mouth; or voluntarily submits to such carnal knowledge; or attempts sexual intercourse with a dead body is guilty of sodomy and is punishable with imprisonment for not more than twenty years. DeTlvatlont Penal Code, t 303, as amended L. 1886, ch. 31, S 0; I<- 1802, eh. 325, S 4. People v. Deschessere (1808), 60 App. Div. 217, 16 N. Y. Cr. 340, 74 N. Y. 8upp. 761; People v. Newman (1005), 100 App. Div. 437, 01 N. Y. Supp. 811; see also People v. Deschessere, Russ. & Ryan, 331, 20 Upp. Can. Q. B. 450; Reg. V. Brown, 24 Q. B. Div. 387. § 691. Penetration sufficient. Any sexual penetration, however slight, is sufficient to complete the crime specified in the last section. Dexlvstion: Penal Ole, S 304. 13S §§ 710-711] DISGUISES [Art. 68 ARTICIiE 68. DISGTTISES. SscTKm 710. Disguised and masked persons; masquerades. 711. Allowing masquerades to be held in places of public resort. 712. Leaving state with intent to elude provisions of this article. 713. Witnesses' privilege. § 710. Disguised and masked persons; masquerades. An assemblage in public houses or other places of three or more persons disguised by having their faces painted, discolored, colored or concealed, is unlawful, and every individual so dis- guised, present thereat, is guilty of a misdemeanor; but nothing contained in this section shall be construed as prohibiting any peaceful assemblage for a masquerade or fancy dress ball or enter- tainment, or any assemblage therefor of persons masked, or as prohibiting the wearing of masks, fancy dresses, or other disguise by persons on their way to or returning from such ball or other entertainment; if, when such masquerade, fancy dress ball or entertainment is held in any of the cities of this state, permission is first obtained from the police authorities in such cities respec- tively for the holding or giving thereof, under such regulations as may be prescribed by such police authorities. DeriTatloni fenal Code, $ 452. § 711. Allowing masquerades to be held in places of public resort. A person being a proprietor, manager or keeper of a theatre, circus, public garden, public hall, or other place of public meeting, resort or amusement, for admission to which any price or payment is demanded, who permits therein any assemblage of persons masked, prohibited in this article, is guilty of a misdemeanor, punishable by imprisonment in a state prison not exceeding two years, or in a county jail not exceeding one year, or by a fiiie not exceeding five thousand dollars and not less than one thousand dollars, or by both such fine and imprisonment. T)erlvatloii: Penal Code, $ 453. 136 Art. 68'| DISGUISES [§§ 712-713 § 712. Leaving state with intent to elude provisions of this article. A person who leaves the state, with intent to elude any pro- vision of this article, or to commit any act without the state, which is prohibited by this article, or who, being a resident of this state, does any act without the state, which would be punishable by the provisions of this article, if committed within the state, is guilty of the same offense and subject to the same punishment, a* if the act had been committed within this state. Derivation: Penal Code, § 461. § 713. Witnesses' privilege. No person shall be excused from giving evidence upon an in- vestigation or prosecution for any of the offenses specified in this article, upon the ground that the evidence might tend to convict him of a crime. But such evidence shall not be received against him upon any criminal proceeding. DeriTatlon: Penal Code, § 468. 18T 720-721] DISORDERLY CONDUCT i^Art. 70 ARTICLE 70. DISOBDEKI.Y CONDUCT. Section 720. Disorderly conduct on public conveyances. 721. Eavesdropping. § 720. Disorderly conduct on public conveyances. Any person who shall by any offensive or disorder.y act or language, annoy or interfere with any person in any place or with the passengers of any public stage, railroad car, ferry boat, or other public conveyance, or who shall disturb or offend the occu- pants of such stage, car, boat or conveyance, by any disorderly act, language or display, although such act, conduct or display may not amount to an assault or battery, shall be deemed guilty of a misdemeanor. Serivationt Tart of Penal Coile, § 075, as amenrled L. IS82, cli. 384, J 1; L. 1891, cli. 327, § 1. For remainder of section, see § 43, ante. People v.Hislop (187!)), 77 N.Y.331; Peopleex rcl. Clark v. Keeper (1003), 176 N. Y. 405, afl'g 80 App. Div. 448, 80 N. Y. Supp. 872; People ex rel. Smith v. Van de Carr (1!)03), 86 App. Div. 0, 83 N. Y. Snpp. 245, 17 N. Y. Cr. 455; People v. St. Clair (1904), 90 App. Div. 239, 86 N. Y. Supp. 77; People v. Weiler (1904), 17U N. Y. 46, 31 N. Y. L, J. 1137, rev'g 8S App. Div. 611, 85 N. Y. Supp. 1140. § 721. Eavesdropping, A person, who secretly loiters about a building, with intent t» overhear discourse therein, and to repeat or publish the same to vex or annoy or injure others, is guilty of a misdemeanor. Derivation: Penal Code, { 436. 138 Art 72J DUELING [§§ 730-732 ARTICLE 72. DUELING. Section 730. Challenge defined, 731. Dueling denned; punishment. 732. Challenger or abettor. 733. Attempts to induce a challenge. 734. Posting for not fighting. 736. Duel outside of state. 730. Where such person may be indicted and tried. 737. Witnesses. § 730. Challenge defined. Any word, spoken or written, or any eign, uttered or made to any person, expressing or implying, or intended to express or imply, a desire, request, invitation, or demand, to fight a duel, or to meet for the purpose of fighting a duel, ia deemed a challenge. Derivatloni Penal Code, § 236. Barker v. People, 3 Cow. 686, 20 Johns. 457. § 731. Dueling defined; punishment A person who fights a duel, or engages in any combat with another, with deadly weapons, by previous agreement, or upon a previous quarrel, although no death or wound ensues, is punish- able by imprisonment for a term not exceeding ten years. A per- son convicted under this section is thereafter incapable of holding, or of being elected or appointed to any office or place of trust or emolument, civil or military, within the state. Derivation: Penal Code, § 234, as amended L. 1802, ch. 662, § 10. § 732. Challenger or abettor. A person who challenges another to fight a duel, or who sends a written or verbal message, purporting or intended to be a chal- lenjre to fight a duel, or an invitation to a combat with deadly weapons, or who accepts such a challenge or message, or who know- ingly carries or delivers such a challenge or niessage, or who is present at the time appointed for such a duel or combat, or when such a duel or combat is fought, either as second, aid, or sursreon, or who advises or abets, or gives any coiintcnance or assistance 189 §§ 733-736J DUELING [AH. 72 to such a duel or combat upon previous agreement, is punishable by imprisonment for not more than seven years. Derivation: Penal Code, § 235. § 733. Attempts to induce a challenge. A person guilty of sending or using to another any word or sign whatever, with intent to provoke or induce such person to give or receive a challenge to fight a duel, is guilty of a misde- meanor. DerivatioB: Penal Code, ! 237. § 734. Posting for not fighting. A person who posts or advertises another for not fighting a duel, »r for not sending or accepting a challenge to fight a duel, or who, in writing or in print, uses reproachful or contemptuous language to or concerning any one, for not sending or accepting a challenge to fight a duel, or for not fighting a duel, is guilty of a mia- demeanor. DerlTatlon: Penal Code, f 238. § 735. Duel outside of state. A person who leaves this state with intent to elude any provision of this article, or to commit any act without this state, which is prohibited by this article, or who, being a resident of this state, does any act without this state, which would be punishable by the provisions of this article, if committed within this state, is guilty of the same offense, and subject to the same punishment, as if the act had been committed, or was to have been consummated within this state. DeriTatioB: Penal Code, f 239. § 736. Where such person may be indicted and tried. A person offending against any provision of the last section may be indicted and tried in any county within this state; but the person so offending may plead a former conviction or acquittal in another state or country for the same offense, and if such plea is admitted or established, it shall be a bar to further proceedings against him, for such offense. DerivatlMki Penal Code, | 240. 140 Art. V2] DUELING [§ 737 § 737. Witnesses. A peP9on offending against any provision of this article is a competent witness against any other person offending in the same transaction, and must not be excused from testifying or answering any question, upon an investigation or trial for an offense under this article, upon the ground that his testimony might tend to convict him of a crime. But evidence given by a person so testify- ing, can not be received against him, in any criminal action or proceeding. SeriTMtlsB; P«im1 Cod*, { 241. 141 S§ 750-782] ELECTIVE FEANCHISE [Art. 74 ARTICLE 74. ELECTIVE FRANCHISE. SifCTiON 750. Definitions. V5J. Misdonieanors at, or in connection with, political caucuses, pri- mary elections, enrollment in political parties, committees, and conventions. 752. False registration. 753. Misconduct of registry or election officers. 754. Mutilation, destruction or loss of registry list. 755. Solicitation of money for newspaper soipport. 766. Misdemeanors concerning police commissioners or oflScers or members of any police force. 757. Failure of house-dweller to answer inquiries. 758. Removal, mutilation or destruction of election booths, supplies, poll-lists or cards of instruction. 769. Befusal to permit employees to attend election. 760. Misconduct in relation to certificates of nomination and offi- cial ballnts. 760a. Misconduct in relation to designation petitions. 701. Failure to deliver official ballots. 762. Misconduct of election officers and watchers. 763. Violation of election law by public officer. 764. Misdemeanors in lelation to elections. 765. Illegal voting. 706. False returns. 767. Furnishing money or entertainment to induce attendance at polls. 768. Giving consideration for franchise. 769. Receiving consideration for franchise. 770. Testimony on prosecution. 771. Bribery or intimidation of elector in military service of United States. 77S. Duress and intimidation of voters. 773. Conspiracy to promote or prevent election. 774. Political assessments. 775. Corrupt use of position or authority. 776. Failure to file candidate's statement of expenses. 777. Procuring fraudulent certificates in order to vote. 778. Presenting fraudulent certificates to registry boards to procure registration. 779. Soliciting from candidates. 780. Judicial candidates not to contribute. 781. Limitation of amounts to be expended by candidates. 782. Penalty. 142 Art. 64] ELECTIVE FRx\NCHISE [§§ 750-751 § 750. Definitions. The words " election " or " town meeting," as used in any of the sections of this article, excepting section seven hundred and fifty-one, shall be deemed to apply to and include all general and special elections, municipal elections, town meetings, and primary elections and conventions, and proceedings for the nomination of candidates by petition under the election law. The word " candi- date," as used in said sections, shall be deemed to apply to candi- dates for nomination at a primary election or convention, and candidates for any office to be voted for under the election law, as well as candidates for nomination by petition under the election law. (Amended by L. 1910, ch. 430, "in effect June 8, 1910.) DerivaUon: Penal Code, § 41zzz, added L. 1907, ch. 544, § 1, People V. Foster (1908), 60 Misc. 7. § 751. Misdemeanors at, or in conn3ction with, political cau- cuses, primary elections, enrollment in political parties, commit- tees, and conventions. Any person who : 1. At a political caucus, or at a primary election of a party, wilfully ^otes, or attempts to vote, without being entitled to do so, or votes, or attempts to vote on any other name than his own, or on the same day more than once on his own name ; or, 2. Votes, or offers to vote, at a political caucus, or primary election of a party, having voted at the political caucus or primary election of any other political party on the same day, or being at the time enrolled in a party other than the party at whose primary he votes or offers to voie; or, who causes his name to be placed upon the rolls of a party organization of one party while his name is by his consent or procure- ment upon the rolls of a party organization of another party ; or, 3. At a political caucus, or at" a primary election, for the purpose of affecting the result thereof, votes or attempts to vote two or more ballots, or adds, or attempts to add, any ballot to those lawfully cast, by fraudulently introducing the same into the ballot box before or af- ter the ballots therein have been counted, or who adds to or mixes with, or attempts to add to or mix with, the ballots lawfully cast, another bal- lot or other ballots before the votes have been counted or canvassed, oi while the votes are being counted or canvassed ; or at any time abstracts any ballots lawfully cast, with intent to chan'^e the result of such election or to change the count thereat in favor of or against any person voted for at such election, or to prevent the ballots being re- counted cr used as evidence; or carries away, destroys, loses, con- ceals, f'etains, fecretes, mutilates, or attempts to carry away, de- i8troy, conceal, detai'n, pecrete, or mutilate, any tally lists, ballot?!, ballot betes, enrollment books, certificates of return, or any official docu- 143 10 . § 751] ELECTIVE FRANCHISE [Art U ments provided for by the election law or otherwise by law, for the purpose of affecting or invalidating the result of such election, or of destroying evidence; or in any manner interferes with ihe officers holding any primary election or conducting the canvass of the votes cast thereat, or with voters lawfully exercising, or seeking to exercise, their right of voting at such primary election; or, 4. For the purpose of securing enrollment as a member of a political party, or for the purpose of being allowed to vote at a primary election as a member of a political party, makes and ae- posits or files, or makes or deposits or files with a board of primary inspectors, or with any public officer or board, a false declaration of .party affiliation or wilfully makes a false declaration of resi- dence, either by an enrollment blank or otherwise, or falsely an- swers any pertinent question asked him by the board of primary inspectors, or the board of election inspectors, or by a member thereof ; or knowingly, on any day of registration or in the interval between any such day and the next ensuing day of general elec- tion, reveals or discloses the names or number of the enrolled electors of any party, or makes, publishes, or circulates a list of such names, or of any thereof, or does or permits any act by which the name of the party with which an elector has enrolled, or the number of electors enrolled with a party, may be disclosed ; or, 5. Fraudulently or wrongfully does any act tending to affect the result of any election at a political caucus or of any primary election or convention ; or, 6. Induces or attempts to. induce any officer, teller, canvfu^ser, poll clerk, primary election inspector, election inspector, custodian of primary records, -or clerk or employee of or in the office of a custodian of primary records at a political caucus, or primary election, or convention, or while discharging any duty or perform- ing any act required or made necessary by the election law, to do any act in violation of his duty, or in violation of the election law; or, 7. Directly or indirectly, by himself or through any other per- son, pays, or offers to pay, money or other valuable thing, or prom- ises a place or position, or offers any other consideration or maizes any other promise, to any person, to induce any voter to vote, or refrain from voting, at a political caucus, primary election, or convention, for or atrainst any particular person ; or does or offers to do, anything to binder or delay any elector from takino; part in or voting at, a political caucus, — at a primary election; or, A44 Alt 74] ELECTIVE FRANCHISE [§ 751 8. By menace or other unlawful or corrupt means, directly or indirectly, influences or attempts to influence, the vote of any per- son entitled to vote at a political caucus, primary election, or con- vention, or obstructs such person in voting, or prevents him from voting thereat; or, 9. Directly or indirectly, by himself or through any other per- son, receives money or other valuable thing, or a promise of a place or position, before, at, or after anj- political caucus, primary election, or convention, for voting or refraining from voting for or against any person, or for voting or refraining from voting at a political caucus, primary election, or convention ; or, 10. Being an officer, teller, canvasser, primary inspector, at a political caucus, or at a primary election, knowingly permits any fraudulent vote to be cast, or knowingly receives and deposits in the ballot box any ballots offered by any person not qualified to vote ; 'or permits the removal of ballots from the polling place be- fore the close of the polls, or refuses to receive ballots intended for the electors of the district, or refuses to deliver to any elector ballots intended for the electors of the district which have been delivered to the board of inspectors, or permits electioneering within the polling place or within one hundred feet therefrom, or fails to keep order within the polling place, or permits any person other than the inspectors to accompany an elector into a voting booth, or enters the voting booth with any elector, except one en- titled to receive assistance in the preparation of his ballot, or per- mits any person other than a voter, who has not voted, or watcher to come within the guard rail or removes or permits another to remove any mark placed upon a ballot for its identification; or, 11. Being an officer, custodian of primary records, clerk or em- ployee of or in the office of a custodian of primary records, elec- tion inspector, primary inspector, or poll clerk, knowingly puts opposite the name of an elrctor in an enrollment book any enroll- ment number other than the number opposite such name on the registration books of such district, or knowingly delivers to or re- ceives from any elector on any day of registration an enrollment blank or envelope on which is any other enrollment number than that so opposite his name on such books of registration, or know- ingly transcribes from an enrollment blank to the enrollment hooks any refusal to enroll or enrollment not indicated on the en- rollment blank of the elector of such district whose enrulhncnt number appears on the same, or refuses or wilfully neglects to 145 § 751] ELECTIVE EEANCHISE [Art. 74 transcribe from any enrollment blank to the proper cnrollmont books any refusal to enroll or enrollment indicated on the enioU- ment blank of such an elector, enrolls or attempts to enroll as a member of a political party, npon any of the enrollment bcukg, any person not qualified to enroll as such, or fraudulently enters thereupon the name of any person who has not enrolled as a member of any political party, or refuses or willfully neglects to enroll upon any of the enrollment books the name of qny qualified person who has demanded to be enrolled as a member of a politi- cal party, or at any time strikes from any of the enrollment books the name of any person duly enrolled, or at any time adds to any of the enrollment books the name of any person not qualified to be enrolled as a member of a political party, or the name of any per- son who in fact has not enrolled as such ; or makes marks upon, mutilates, carries away, conceals, alters, or destroys any enroll- ment blank or enrollment envelope used or deposited by an elector on a day of registration for the purpose of enrolling or refusing to enroll himself as a member of a political party; or mutiintcs, carries away, conceals, alters, or destroys, any statement or drclara- tion made by a qualified voter for the purpose of enrolling as a member of a party ; or, prior to the close of the last meeting for registration in any year, mutilates, carries away, conceals, alters, or destroys any enrollment blanks or enrollment envelopes not then delivered to electors; or, 12. Being an officer, teller, canvasser, election inspector, primary inspector, custodian of primary records, clerk or employee of or in the office of a custodian of primary records, or any officer of a political committee or a convention, wilfully omits, refuses or neglects to do any act required by the election law or otherwise by law, or violates any of the provisions of the election law, or makes or attempts to make any false canvass of the ballots cast at a political caucus, primary election, or convention, or a false statement of the result of a canvass of the ballots cast thereat; or, 13. Being a custodian of primary records, or an officer of a political committee, or of a convention, who is charged with, or as- sumes, the duty of making up the preliminary roll of any conven- tion, wilfully includes in such roll the name of any person not certified to be elected thereto in accordance with the provisions of law, or who wilfully omits from such roll the name of any person who is so certified to be a delegate to such convention. Is guilty of a misdemeanor. DeriTation: Penal Code, § 41 (original), repealed L. 1800, c'.i. 04, { i; 14G Art. 74] ELECTIVE FKANCHISE [§§ 752-753 new § 41, added L. 18D0, cli. 94, § 1, and amended L. 1802, cli. 603, § 1 ; L. 1896, ch. 721, § I ; L. 1807, cli. 255, i 1; L. 1808, cli. 107, § 1 ; L. 180!), cli. 530, § 1; subds. 2, 6, as amended L. 1905, ch. G25, §§ 1, 2; subd. 10, as auiuiiJi-d L.- 1901, ch. 371, § 1. People V. Cleary (1895), 13 Misc. 552, 35 N. Y. Supp. 588; People v. Eng- land (1895), 91 Hun, 152, 11 N. Y. Cr. 156, 36 N. Y. Supp. 534; People v. Jackson (1901), 36 Misc. 286, 73 N. Y. Supp. 461; People v. Poster et ul. (1908), 00 Misc. 7. § 752. (Am'd, 1909.) False registration. Any person who : 1. Eegisters or attempts to register as an elector in more than one election district for the same election, or more than once in the same election district ; or, 2. Eegisters or attempts to register as an elector, knowing that he will not be a qualified voter in the district at the election for which such registration is made ; or, 3. Eegisters or attempts to register as an elector under any- other name than his own ; or, 4. Knowingly gives a false residence within the election dis- trict when registering as an elector ; or, 5. Knowingly permits, aids, assists, abets, procures, commands or advises another to commit any such act, Is guilty of a felony, punishable by imprisonment in a state prison for not more than five years. Derivation: Penal Code, § 41a, added L. 1890, ch. 94, § 1, amended L. 1892, eh. 603, § 1; L. 1897, ch. 255, § 1; L. ISOl, ch. 371, § 2; L. 1905, ch. 625, S 3. Am'd by L. 1909, ch. 306, in effect Sept. 1, 1909. People V. Acritelli ( 1908), 57 Miso. 574, 110 N. Y. Supp. 430. § 753. Misconduct of registry or election ofEcers. Any member or clerk of a registry board or other election oflScer who wilfully refuses to accord to any duly accredited watcher or challenger or to any voter or candidate any right given him by the ejection law, or who wilfully violates any provision of the election law relative to the registration of electors or to the taking, record- ing, counting, canvassing, tallying or certifying of votes, or wilfully neglects or refuses to perform any duty imposed on him by law, or is guilty of any fraud in the execution of the duties of his office, or connives in any electoral fraud, or knowingly permits any such fraud to be practiced, is guilty of a felony, punishable by imprisonment for not more than three years, or by a fine of not more than three thousand dollars, or both. (Amended by L. 1919, ch, 415, in effect May 5, 1919.) Derivation: Penal Code, § 41e, added. L. 1890, ch. 94, § 1, and amended L. 1892, ch. 693, § 1 ; L. 1893, ch. 602, § 1 ; le-numibered § 41aa and amended L. 1905, ch. 625, § 4. People V. McKane (1894), 143 N. Y. 455, aff'g 80 Hun, 322; McAvoy v. Press Publis'hing Co. ( 1906), 114 App. Div. 645, 99 N. Y. Supp. 1041. 147 §§ 754-756] ELECTIVE FKANCHISE [Art 74 § 754. Mutilation, destruction or loss of registry list. Any person who wilfully loses, alters, destroys or mutilates the list or register of voters in any election district, or a certi- fied copy thereof, or removes from the place of registration the public copy of such registration, after the making of the same and before the closing of the polls of the election for which the same is made, is guilty of a misdemeanor. Derivation: Penal Code, § 41b, added L. 1890, cli. 94, § 1, as amended L. 1892, ch. 693, § 1; I-.. 1905, cli. 625, § 5. 8 755. Solicitation of money for nev^spaper support. Any person who solicits from a candidate for an elective ofRoe money or other property as a consideralion for a newspaper or other publication supporting any candidate for an elective office, is guilty of a misdemeanor. Derivation: Penal Code, § 41bb, added L. 1900, ch. 70, § 1. § 756. Misdemeanors concerning police commissioners or offi- cers or members of any police force. Any person who, being a police commissioner or an officer or member of any police force in this state: 1. Uses or threatens or attempts to use his official power or authority, in any manner, directly or indirectly, in aid of or against any political party, organization, association or society, or to control, affect, influence, reward or punish, the political adherence, affiliation, action, expression or opinion of any citi- zen ; or, 2. Appoints, promotes, transfers, retires or punishes an officer or member of a police force, or asks for or aids in the promo- tion, transfer, retirement or punishment of an officer or member of a police force, because of the party adherence or affiliation of such officer or member, or for or on the request, direct or indirect, of any political party, organization, association or so- ciety, or of any officer, member of committee or representative official or otherwise of any political party, organization, asso- ciation or society ; or, 3. Contributes any money, directly or indirectly, to, or solicits, collects or receives any money for, any political fund, or joins or becomes a member of any political club, association, society or committee, Is guilty of a misdemeanor. 148 Art. 74] ELECTIVE FRANCHISE [§§ 757-758 Derivation: Penal Code, § 41aa, added L. 1890, oh. 529, § 1 ; re-numberea I 41c, L. 1905, ch. 625, § 4. People ex rel. McShane v. Hagen (1900), 48 App. Div. 204, aff'd 164 N. Y 570, 62 N. Y. Supp. 816; McAvoy v. Press Publishing Co. (1906), 114 App. Div. 545, 99 N. Y. Supp. 1041. § 757. Failure of house-dweller to answer inquiries. Any person dwelling in a building in a city who wilfully refuses to truly answer any question or who shall give falsa answers to any questions asked by any elector of such city, be- tween the first meeting of the boards of registry therein for any election and the closing of the polls at such election, relating to the residence and qualifications as a voter of any person dwelling in such building, or of any person who appears upon the list or registry of voters made by a board of registry as residing at such building, or who knowingly harbors or conceals any person who has falsely registered as a voter, or who shall rent any room or bed to any person to be used by such person for himself or any other person for the purpose of unlawfully roistering or voting therefrom is guilty of a misdemeanor. Derivation: Penal Code, § 41d, added L. 1890, ch. 94, § 1, amended L. 1892, ch. 693, § 1; L. 1901, ch. 371, § 3; L. 1905, ch. 625, § 6. People ex rel. Perry v. Hagan (1898), 13 N. Y. Cr. 418, 54 N. Y. Supp. 826; People v. Acritelli (1908), 57 Misc. 574, 110 N. Y. Supp. 430. § 758. Removal, mutilation or destruction of election booths, supplies, poll-lists or cards of instruction. Any person who: 1. During an election or town meeting, wilfully defaces or injures a voting booth or compartment, or wilfully removes or destroys any of the supplies or other conveniences placed in the voting bix)ths or compartments in pursuance of law ; or, 2. Before the closing of the polls, wilfully defaces or destroys any list of candidates to be voted for at such election or town meeting, posted in accordance with the election law ; or, 3. During an election or town meeting, wilfully removes or defaces the cards for the instruction of voters, posted in accord- ance with the election law, Is guilty of a misdemeanor. Derivation: Penal Code, § 41e, added L. 1890, ch. 94, 5 1; amended I* 1892, ch. 693, 8 1; L. 1894, ch. 714, " " 149 §§ 759-760-a] ELECTIVE FEANCHISE [Art. 74 § 759. Befusal to permit employees to attend election. A person or corporation who refuses to an employee entitled to vote at an election or town meeting, the privilege of attending thereat, as provided by the election law, or subjects such employee to a penalty or reduction of wages because of the exercise of such privilege, is guilty of a misdemeanor. Derivation: Penal Code, § 41f, added L. 1890, ch. 94, § 1, amended L. 1892, ch. 693, § 1. § 760. Misconduct in relation to certificates of nomination and official ballots. A person who: 1. Falsely makes or makes oath to, or fraudulently defaces or destroys, a certificate of nomination or any part thereof; or, 2. Files or receives for filing a certificate of nomination, know- ing that any part thereof was falsely made ; or, 3. Suppresses a certificate of nomination which has been duly filed, or any part thereof; or, 4. Forges or falsely makes the official indorsement of any ballot; 01', 5. Having charge of official ballots, destroys, conceals or sup- presses them, except as provided by law, Is punishable by imprisonment for not more than five years. Derivation: Penal Code, § 41g, added L. 1890, ch. 94, § 1, amended L. 1892, ch. 693, § 1; L. 1903, ch. 625, § 7. § 760-a. Uiscondnct in relation to designation petitions. Any person who : 1. Pays, lends, contributes or promises to pay, lend or contri- bute any money or other valuable consideration to or for any voter, or to or for any other person, to induce such voter to sign 150 Art. 74] ELECTIVE FRANCHISE [§ 760-a a petition for the designation of a candidate for party nomination or for election to a party position to be voted for at a primary election; or 2. Gives, offers or promises any office, place or employment, or promises to procure or endeavor to procure any office, place or employment to or for any voter, or to or for any other person, in order to induce such voter to sign a petition for the designation of a candidate for party nomination or for election to a party position to be voted for at a primary election ; or 3. Receives, agrees or contracts for any money, gift, loan or other valuable consideration, office, place or employment for him- self or any other person, for signing a petition for the designation of a candidate for party nomination or for election to a party position to be voted for at a primary election; or 4. Pays or agrees to pay money or other valuable consideration, to any person for his services in canvassing for or otherwise pro- cnring the signatures of voters to a petition for the designation of a candidate or candidates for party nomination or for election to a party position to be voted for at a primary election, upon the basis of the number of names to such petition procured by Buch person, or at a fixed amount per name ; or 5. Represents to any person as an inducement for signing a petition for the designation of a candidate for party nomination or for election to a party position to be voted for at a primary election, that the person soliciting such signature is to be com- pensated upon the basis of the number of names procured by such person, or at a fixed amount per name, Is guilty of a misdemeanor. (Added by L. 1912, ch. 207 ; in effect Apr. 9, 1912.) 150a §§ 761-763] ELECTIVE FRANCHISE [Art 74 § 761. Failure to deliver official ballots. Any person who has undertaken to deliver official ballots to any city, town or village clerk, or inspector, as authorized by the election law, and neglects or refuses to do so, is guilty of a mis- demeanor. Derivation: Penal Code, § 41h, added L. 1892, ch. 693, { 1. § 762. Misconduct of election officers and watchers. Any election officer or watcher who : 1. Eeveals to another person the name of any candidate for whom a voter has voted; or, 2. Communicates to another person his opinion, belief or im- pression as to how or for whom a voter has voted ; or, 3. Places a mark upon a ballot, or does any other act by which one ballot can be distinguished from another, or can be identi- fied; or, 4. Before the closing of the polls, unfolds a ballot which a voter has prepared for voting. Is guilty of a misdemeanor. Derivation: ii'enal Code, § 41i, added L. 1892, ch. 693, S I, u amended L. 1894, ch. 714, § 2; L. 1905; ch. 625, § 8. § 763. Violation of election law by public officer. A public officer who omits, refuses or neglects to perform any *ct required of him by the election law, or refuses to permit the doing of any act authorized thereby, is, if not otherwise provided by law, punishable by imprisonment for not more than UOh Art 74] ELECTIVE FRANCHISE [§ 764 three years, or by a fine of not more than three thousand dollars, or both. Derivation: Penal Code, § 41 j, added L. 1892, ch. 693, § 1. People V. Gleason (1896), 18 Misc. 511, 12 N. Y. Cr. 192, 42 N. Y. Supp- 1084; Matter of Hearst (1905), 110 App. Div. 346, 96 N. Y. Supp. 341. § 764. Misdemeanor in relation to elections. Any person who: 1. Acts as an inspecstor of election, poll olerk . or ballot clerk, without being able to read and write the English language, or without being otherwise qualified to hold such duced, is guilty of a misdemeanor. Derivation: Penal Code, § 110, amended L. 1890, ch. 378, § 3. Stearns v. Titus (1908), 193 N. Y. 274, rev'g 119 App. Div. 885. 104 N. Y. Supp. 1148. § 813. Inducing another to commit perjury. A person who without giving, offering or promising & bribe, incites or attempts to procure another to commit perjuj.*y, or to give false testimony as a witness, though no perjury is committed or false testimony given, or to withhold true testimony, is guilty of a misdemeanor. Derivation: Penal Code, § 112. McCoy V. Munro (1902), 76 App. Div. 439, 78 N. Y. Supp. 849. § 814. Suppressing evidence. A person who maliciously practices any deceit or fraud, or uses any threat, menace or violence, with intent to prevent any party to an action or proceeding from obtaining or producing therein any book, paper, or other thing which might be evidence, or from procuring the attendance or testimony of any witness therein, or with intent to prevent any person having in his possession any book, paper, or other thing which might be evidence in such suit or proceeding, or to prevent any person being cognizant of any fact material thereto from producing or disclosing the same, is guilty of a misdemeanor. Derivation: Penal Code, § 128. § 815. Presumption of responsibility in general. * A person is presumed to be responsible for his acts. The burden of proving that he is irresponsible is upon the accused person, ex- cept as otherwise prescribed in this chapter. Derivation: Penal Code, § 17. Murphy v. Perlstein (1902), 73 App. Div. 256-261, 76 N. Y. Supp. 657. § 816. Presumption as to child under seven years. A child under the age of seven years is not capable of coinniit- ting crime. Derivation: Penal Code, § 18. Ivloebus v. Herrmann (1888), 108 K. Y. 353, aCg 38 Hun, 370; Stone v. 166 Art. 76] EVIDENCE [§ 817 Dry Dock, etc., R. Co. (1889), 115 N. Y. 104, 23 N. Y. St. 551, rev'g 46 Hun, 184; LafiFerty v. Third Ave. R. R. Co. (1903), 85 App. Div. 599, 83 N. Y. Supp. 405; People v. Taylor (1908), 192 N. Y. 400; see also People v. Davis, 1 Wheel Car Cas. 230; Walker's Case, 5 City Hall Rec. 137; Stage's Case, 5 City Hall Rec. 177; State v. Aaron, 7 Am. Dec. 592; Marsh v. Loader, 14 B. C. (N. S.) 535, 3 Lawson Crim. Def. 119; Willet v. Com., 13 Bush, 230. § 817. Presumption of responsibility in general as to child of seven years or more. A child of the age of seven years, and under the age of twelve years, is presumed to be incapable of crime, but the presumption may be removed by proof that he had sufficient capacity to under- stand the act or neglect charged against him and to know its wrongfulness. Whenever in any legal proceedings it becomes necessary to de- termine the age of a child, the child may be produced for personal inspection, to enable the magistrate, court or jury, to determine the age thereby; and the court or magistrate may direct an ex- amination by one or more physicians, whose opinion shall also be competent evidence upon the question of age. A copy of the record of baptism of any child in any parish register, or register kept in a church, or by a clergyman thereof, or a crtificate of baptism duly authenticated by the person in charge of such register, or v^ho administered said baptism, and also a transcript of the record of birth recorded in any bureau of vital statistics or board of health, duly authenticated by its secretary or under its seal, and the entries made in a family Bible, shall also be com- petent evidence upon the question of the age. Derivation: Penal Code, § 19, as amended L. 1884, ch. 46, § I; L. 1888, ch. U5f § 1. People ex rel. Zeigler v. Special Sessions (1877), 10 Hun, 224; People v. Cardillo, N. Y. Gen. Sess., Jan.. 1883; People v. Plath (1885), 3 N. Y. Cr. 129; People v. Stntt (1886), 4 N. Y. Cr. 306; People v. Sheppard (18S7), 5 N. Y. Cr. 132, 44 Hun. .'5n.'5; Stnne v. Dry Dock Co. (1SS9), 115 N. Y. 104, 23 N. Y. St. 551, rev'g 46 Hun, 184; People v. Ragone (1900), 54 App. Div. 498, 67 N. Y. Supp. 23. 15 Crim. Ren. 193: Murphy v. Perlstein (1902), 73 App. Div. 256, 261, 76 N. Y. Supp. 657; Hill v. Bait. & N. Y. R. Co. (1902), 75 App. Div. 325, 32S, 78 N. Y. Supp. !34: People v. Squazza (1903), 40 Misc. 71, 81 N. Y. Supp. 2.54; Laffevty v. Third Ave. R. R. Co. (1903), 85 App. Div. 599. 83 N. Y. Supp. 405; People v. Demenico (1904), 45 Misc. 309, 92 N. Y. Supp. 390, 19 Crim. Rep. 8; People v. O'Brien (1908), 125 App. Div. 255, 109 N. Y. Supp. 267; see also Bullnek v. Rabcoek, 3 Wend. 391; People v. Kendall, 25 Wend. 399; Matter of Serafino, 66 How. Pr. 178; People v. Townaend. 3 167 S 817] EVIDENCE [Art. 76 Hill, 470; People v. Itandolpli, 2 Park, 174; People v. Walker, 6 City Hall Bee. 137; Stage's Case, 5 City Hall Ree. 177, Barb. Crim. Law, 262; Peo- ple V. Davis, 1 Wheel. Cr. Cas. 230; People v. Teller, 1 Wheel. Cr. Cas. 231; Banks v. Metcalfe, 1 Wheel. Cr. Cas. 331; Godfrey v. State, 31 Ala. 323; Irby V. State, 32 Ga. 490; Centra! R. Co. v. Cogg'n, 73 Ga. 089; Whart. Ev. (3d Ed.), sec. 208; Angelo v. People, 90 HI. 29, 30 Am. Rep. 132, 3 Lawson Crim. Def. 123; Shinger v. State, 53 Ind. 251, 28 Eng. Rep. 510; Cheever v. Congdon, 34 Mich. 290; Morrison v. Emsley, S3 Mieh. 504; State v. Tice (Mo.), 6 West, 077; State v. Adams, 70 Mo. 355; Law v. Com., 75 Va. 885, 40 Am. Rep. 750; Doran v. Smith, 49 Vt. 353; Rex v. York, Foster, 70, 1 Ben- nett & Heard Lead Cas. 71; Wilet v. Com., 13 Bush. 230; Reg. y. Viasani, 31 Justice of the Peace, 200, 15 L. T. (N. S.) 240; Com. v. Green, '4 Viek. 380; State V. Arnold, 13 Ired. 184. 168 Art. 78] EXHIBITIONS [§§ 830-831 ABTICI.E 7a EXHIBITIONS. Section 830. Acrobatic exhibitions. 831. Knife ttirowing; sliooting; life saving apparatus at bathing places. 832. Contests of skill, speed or endurance; time of riding limited. 833. Certain exhibitions prohibited. 8341 Prohibiting certain exhibitions without permission of town authorities. 835. Booths in rooms where pool and billiards are played in incorpo- rated villages and) towns. § 830. Acrobatic exhibitions. The proprietor, occupant or lessee of any place where acrooatic exhibitions are held, who permits any person to perform on any trapeze, rope, pole or other acrobatic contrivance, without net- work or other sufficirnt means of protection from falling or other accident, and any person who makes or attempts to make an ascen- sion by means of a balloon, with a trapeze or parachute attachment, or any other device for the purpose of making a descent from such balloon, is guilty of a misdemeanor punishable for the first oflFense by a fine of two hundred and fifty dollars, and for each subsequent offense by a fine of two hundred and fifty dollars and imprisonment not less than three months nor more than one year. Derivation: Penal Code, § 384, amended L. I8!I2, ch. 2G8, § 1. People V. Lochner (1904), 177 N. Y. 174, aff'g 73 App. Div. 120, 76 N. Y. Supp. 396, 10 N. Y. Cr. 525; People v. Schermerhorn (1908), 69 Misc. 140, 112 N. Y. Supp. 222. § 831. Knife throwing; shooting; life saving apparatus at bathing places. A person who: 1. Being lessee or occupant of any place of amusement, or any plot of ground or building, uses it or allows it to be used for the exhibition of skill, in throwing any sharp instrument at or toward any human being; or, 2. Aims or discharges any bow-gun, pistol or fire-arm of any description whatever, or allows one to be aimed or discharged at or towards any human being; or. 339 §§ 832-834] EXHIBITIONS [Art. 78 3. Being owner, lessee, proprietor or manager of any surf-bath- ing place, neglects at any time during the bathing season to maintain surf or lifa-boats, or other life saving apparatus, duly equipped and manned in the manner and to the extent prescribed by law. Is guilty of a misdemeanor. Derivation: Penal Code, § 427. § 832. Contests of skill, speed or endurance; time of riding limited. In a bicycle race, or other contest of skill, speed or endurance, wherein one or more persons shall be a contestant or contestants, it shall be unlawful for any contestant to continue in such race or contest for a longer time than twelve hours during any twenty- four hours. The proprietor, occupant or lessee of the place where such race or contest tal^es place, consenting to, allowing or permitting any violation of the foregoing provisions of this section is guilty of a misdemeanor. The jnanager or superin- tendent of such race or contest consenting to, permitting or allow- ing any violation of the provisions of the first sentence of this section is guilty of a misdemeanor. Derivation: Penal Code, § 383a, added L. 1899, ch. 316, § 1. § 833. Certain exhibitions prohibited. No person shall exhibit or perform for gain or profit, any puppet-show, any wire or rope-dance, or any other idle shows, acts or feats which common showmen, mountebanks or jugglers usually practice or perform ; and no owner or occupant of any house, out- house, yard, field, shed or other place, shall furnish or allow the same to be used for thp accommodation of such exhibition or prr- formance. Whoever shall offend against either of these pro- visions, shall forfeit twenty-five dollars for each offense, tn be recovered by and in the name of the overseers of the poor of tho town where the offense shnil be committed. Derivation: R. S., pt. I, ch. 20, tit. 8, § 1. § 834. Prohibiting certain exhibitions without permission of town authorities. The penalties in the preceding section shall also apply to and be t?0 Art. 78] EXHIBITIONS ' [§§ 834-835 recovered of any person who shall exhibit for gain or profit any painting, any animal or other natural or artificial curiosity, or any other thing not prohibited in the foregoing section, in any town, without having first obtained permission in writing for that purpose, signed by two justices of the peace of the town, in which license the nature of such exhibition shall be described, and for the granting of which no fee or reward shall be taken. DeriTationi a.. 8., pt. 1, cb. 20, tit.. 8, § 2. § 835. Booths £n rooms where pool and billiards are played in incorporated villages and towns. In any incorporated village or town, a person who is the proprietor, manager, lessee or person in charge of any building, structure, room, outbuilding or any other place whatsoever, in which the games of pool and billiards are played, except in clubs, fraternal or religious organizations or associations, and who shall have at any time in any room where such games are played any inclosed booth, box or stall or any obstruction which prevents a full view of the entire room by every person present therein, is guilty of a misdemeanor. (Added by L. 1919, eh. 412, in effect Sept. 1, 1919.) m §§ 850-851] EXT0ETI02T AND THKEATS [Art 80 ARTICIiE 80. EXTOBXION AND THREATS. Section 850. Extortion defined. 851. What threats may constitute extortion. 852. Punishment of extortion. 853. Compulsion to execute instrument. 854. Extortion committed under color of official right. 855. Public officer taking illegal fees commits extortion. 856. Blaclcmail. 857. Attempts to extort money or property by verbal threats. 858. Threat referring to act of tliird person. 859. Eule as to person acting under threats. 860. Intimidating public ofiicer or a person authorized to determine a controversy. 861. Agreements or contracts for privileges to deal •with, occupants of tenements or apartment houses. § 850. Extortion defined. Extortion is the obtaining of property from another, or the obtaining tlie property of a corporation from an officer, agent or employee thereof, with his consent, induced by a wrongful use of force or fear, or under color of official right. (Amended by L. 1917, ch. 518, in effect Sept. I 1917.) Derivation: Penal Code, § 552. People v. Wilzig (1886), 4 N. Y. Cr. 403; People v. Barondess (1891), l.?J; N. Y. 649, rev'g 61 Hun, 571, 16 N. Y. Supp. 436; People v. Gardner (1S94), 144 N. Y. 119, mod'f'g 73 Hun, 66, 25 N. Y. Supp. 1072; People v. Jackson (1905), 47 Misc. 60, 95 N. Y. Supp. 286; People v. Jaffe (1906), 185 N. Y. 497; 19 N. Y. Cr. 283, rev'g 112 App. Div. 521, 98 N. Y. Supp. 486; People V. Weinseimer (1907), 117 App. Div. 604, 102 N. Y. Supp. 579. § 851. What threats may constitute extortion. Fear, such as will constitute extortion, may be induced by an oral or written threat: 1. To do an unlawful injury to the person or property of the indi- vidual threatened, or to any relative of his or to any member of his family or to a corporation of which he shall be an officer, stockholder, emplo'-ee or agent; or, 2. To accuse him, or any relative of his or any member of his family, of any crime ; or, 3. To expose, or impute to him, or any of them, any deformity or disgrace ; or, 4. To expose any secret affecting him or any of them ; or, 5. To kidnap him or any relative of his or member of his family ; or, 6. To injure his person or property or that of any relative of his or member of his family by the use of weapons or explosives. (Amended by L. 1911, chs. 121 and 602; L. 1917, ch. 518, in effect Sept. 1, 1917.) DeriTBtion: Penal Code, § 553. People V. Jaffe (1906) , 185 N. Y. 497, 19 N. T. Cr. 283, rev'g 112 Ann. Div. 521, 98 N Y. SupT). 486; People v. Weinseinrer (1907), 117 App. Div. 604, 102 N. Y. Supp. 579, 20 N. Y. Cr. 539. 172 Art. 80] EXTORTION AND THEEATS [§§ 852-855 § 852. Punishment of extortion. A person wlio extorts any money or other property from another, under circumstances not amounting to robbery, is punishable by im- prisonment not exceeding fifteen years, if the same is done by means of force or a threat mentioned in section eight hundred and fifty or in either of the first four subdivisions of section eight hundred and fifty- one, and by imprisonment for not less than five years nor more than twenty years if the same is done by means of a threat mentioned in subdivisions five or six of the latter section. (Amended by L. 1909, eh. 368; L. 1911, ch. 603, in effect Sept. 1, 1911.) Derivation: Penal Code, § 554. People V. Hughes (1893), 137 N. Y. 30, aff'g 46 N. Y. S. Rep. 413, 19 N. Y. S. 550; People v. Borges, 6 Abb. Pr. 132. § 853. Compulsion to execute instrument. The compelling or inducing of another, by such force or threat, to make, subscribe, seal, execute, alter or destroy any valuable security, or instrument or writing affecting or intended to affect any cause of action or defense or any property is an extortion of property within the last two sections. Derivation: Penal Code, § 555, amended L. 1882, ch. 384, § 1. § 854. Extortion committed under color of ofBcial right. A public officer, or a person pretending to be such, who, unlawfully and maliciously, under pretense or color of official authority : 1. Arrests another, or detains him against his will ; or, 2. Seizes or levies upon another's property ; or, 3. Dispossesses another of any lands or tenements; or, 4. Docs any other act, whereby another person is injured in his per- son, property, or rights, Comir.its oppression and is guilty of a misdemeanor. Derivation: Penal Code, § 556. People V. Jefferey (1894), 82 Hun, 409, 31 N. Y. Supp. 267; People ex rel. Devery v. Jerome (1901), 36 Misc. 259, 73 N. Y. Supp. 306; People v. Sum- mers (1903), 40 Misc. 384, 17 N. Y. Cr. 321, 82 N. Y. Supp. 297; Hale v. Burns (1905), 101 App. Div. 107, 91 N. Y. Supp. 929; People v. Jackson (1905), 47 Misc. 60, 95 N. Y. Supp. 286; McGorie v. MoAdoo (1906), 49 Miso. 603, 99 N. Y. Supp. 1107; Delaney v. Flood (1906), 183 N. Y. 329, rev'g 105 App. Div. 642, 94 N. Y. Supp. 1143; Eden Musee Co. v. Bingham (1908), 125 App. Div. 783, 110 N. Y. Supp. 210; Fairmont Athletic Club v. Bingham (1908), 61 Misc. 423; People ex rel. Eeardon v. Flynn (1908), 58 Miso. 623, 111 N. Y. Supp. 1065. § 855. Public officer taking illegal fees commits extortion. A public officer who asks, or receives, or agrees to receive, a fee or other compensation for his official service : 1. In excess of the fee or compensation allowed to him by statute therefor; or, 2. Where no fee or compensation is allowed to him by statute therefor. Commits extortion and is jruilty of a misdemeanor. Derivation: Penal Code, § 557. 173 §§ 856-859] EXTOETION AND THEEATS [Art. 80 § 856. (Am'd, 1909.) Blackmail. A person who, Imowing the contents thereof, and with intent, by means thereof, to extort or gain any money or other property, or to do, abet, or procure any illegal or wrongful act, sends, delivers, or in any manner causes to be forwarded or received, or makes and parts with for the purpose that there -may be sent or delivered, any letter or writing, threatening : 1. To accuse any person of a crime ; or, 2. To do any injury to any person or to any property ; or, 3. To publish or connive at publishing any libel ; or, 4. To expose or impute to any person any deformity or disgrace. Is punishable by imprisonment for not more than fifteen years. Derivation: Penal Code, § 558. Amended by L. 1909, oh. 368. In effect Sept. 1, 1909. People V. Thompson (1884), 97 N. Y. 313, 2 N. Y. Cr. 526; People v. Wight- man (1887), 104 N. Y. 598, aff'g 43 Hun, 358; People v. Gillian (1889), 115 N. Y. 643, aff'g 50 Hun, 37, 2 N. Y. Supp. 476; People v. Eiohler (1894), 75 Hun, 26, 26 N. Y. Supp. 998; People v. Wlckes (1906), 112 App. Div. 39, 98 N. Y. Supp. 163, 20 Grim'. Rep. 23; People v. Triscoli (1907), 117 App. Div. 120, 102 N. Y. Supp. 328, 21 Grim. Rep. 1 ; see also People v. Loviless, 84 N. Y. Supp. 1115; Edsall v. Brooks, 17 Abb. Pr. 226; People v. Griffin, 2 Barb. 427. § 857. Attempts to extort money or property by oral threats. A person who, under circumstances not amounting to robbery, or an attempt at robber}', with intent to extort or gain any money or othei* property, orally makes such a threat as would be criminal under any of the foregoing sections of this article or of section five hundred and fifty-one, if made or communicated in writing, is guilty of a misde- meanor. The provisions of this section do not apply to matters gov- erned by section eight hundred and fifty one of this act. (Amended by L. 1911, ch. 121. In effect Sept. 1, 1911.) Derivation: Penal Code, § 560. § 858. Threat referring to act of third person. It is immaterial whether a threat, made as specified in the foregoing sections of this article, and in section five hundred and fifty-one, is of things to be done or omitted by the offender, or by any other person. Derivation: Penal Code, § 561. Pcop'e V. Weinseimer (1907), 117 App. Div. 605, 102 N. Y. Supp. 579, 20 Crim. Rep. 539. § 859. Rule as to persons acting under threats. Where a crime is committed or participated in by two or more per- sons, and is committed, aided, or participated in by any one of tliem, only because, during the time of its commission, he is compelled to do, •or to aid or participate in the act, by threats of another person engaged in the act or omission, and reasonable apprehension on his part of instant death or grievous bodily harm, in case he refuses, the threats and apprehension constitute duress, and excuse him. Derivation: Penal Code, § 25. 174 Art. 80] EXTORTION AND THREATS [§§ 860, 861 § 860. Intimidating public officer or a person authorized to determine a controversy. A person who directly or indirectly addresses any threat or intimi- dation to a public officer, or to a juror, referee, arbitrator, appraiser, or assessor, or to any other person, authorized by law to hear or de- termine any controversy or matter, with intent to induce him, contrary to his duty, to do or make, or to omit or delay, any act, decision or determination, is guilty of a misdemeanor. Derivation: Penal Code, § 127. Smith V. Botena, 13 N. Y. Supp. 223; Matter of Tyler, 71 Cal. 351. § 861. Agreements or contracts for privileges to deal with occupants of tenements or apartment houses. 1. A contract, agreement or arrangement entered into or executed by and between the owner of an apartment house or a tenement, or any of his agents, employees or servants and a dealer in or seller of fuel, ice or food, or his agents, employees, or representatives for the purpose of giving to such dealer or seller the privilege of selling or delivering fuel, ice or food, to the persons occupying such apartment house or tenement is against public policy and void. 2. Any person who shall, directly or indirectly, either as the owner of such apartment house or tenement, or as an agent, employee or ser- vant of such owner, accept any money, property or thing of value for permitting or giving to any person, or his agents, employees or repre- sentatives, the privilege of selling or delivering fuel, ice or food, to the persons occupying such apartment house or tenement, and any person who shall, directly or indirectly, either as a seller of, or dealer in, fuel, ice or food, as an agent, employee, or representative of such seller or dealer, pay or give any money, property or thing of value, for such privilege shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than ten nor more than one hundred dollars, or by imprisonment for not less than thirty days nor more than one year, or by both such fine and imprisonment in the discretion of the court. If a corporation is convicted of a violation of this section, it shall be punished by a fine of not less than fifty nor more than one thousand dollars. 3. A person occupying an apartment house or tenement, to whom fuel, ice or food, shall be sold or delivered by a seller or dealer who has paid or given any money, property or thing of value for the privilege of selling or delivering fuel, ice or food, to the persons occupying such apartment house or tenement, may recover of such seller or dealer for his benefit a penalty, in the sum of two hundred and fifty dollars, in a civil action brought in a court of comr)etent jurisdiction. (Added by L. 1917, ch. 703, in effect June 1, 1017.) §§ 870-871] FEllKIES |.Att 83 ARTICLE 82. FEBBIES. Section 870. Ferries. 871. Penalty for neglect to post stihedule of ferry rates. § 870. Ferries. A person who: 1. Maintains a ferry for profit or hire upon any of the waters of this state without authority of law; or, 2. Having entered into a recognizance to keep or maintain a ferry, violates the condition of such recognizance, J guilty of a misdemeanor. Where snch ferry is upon waters dividing two counties, the offender may be prosecuted in cither coimty. Derivation: Penal Code, § 415, amended L. 1802, ch. 092, S 1. Aikin v. Railroad Co. (1850), 20 N. Y. 370; Mayor, etc., v. Starin (1887), 100 N. Y. 1; People v. Mago (1893), 09 Hun, 659, 23 N. Y. Supp. 038; People T. Babcock, 11 Wend. 687. § 871. Penalty for neglect to post schedule of ferry rates. A person, corporation or association operating any ferry in this state, or between this state and any other state, operating from or to a city of five hundred thousand inhabitants or over, posting a false schedule of ferry rates, or neglecting to post in a conspicuous and accessible place in each of its ferry-houses, in plain view of the passengers, a schedule, plainly printed in the English language, of the rates of ferriage charged thereon and authorized by law to be charged for ferriage over such ferry, is guilty of a misdemeanor. Derivation: Penal Code, § 415a, added L. 1893, oh. 092, § 2. § 872. Motor vehicles on ferryboats. A chauffeur or operator in charge of a motor vehicle who leaves it unattended at any time when it is being carried on any ferry- boat operating in this state, or between this state and another state, and from or to a city of five hundred thousand inhabitants or over, is guilty of a misdemeanor. Within the meaning of this section, a motor vehicle is left unattended unless such chauffeur or operator in charge is on or immediately near such motor vehicle and at a place which affords easy and immediate access to the operating, guiding and braking appliances (Added by L. 1917, ch. 173, in effect June 1, 1917.) 17G Art. 84J FORGERY [§ 880 article: 84. FORGERT. SnmoN 880. definitions. 881. LJttci'ln*; forged instruments is forgery. 882. Falsely indicating person us corporate officer. 883. Uttering writing signed vvitli wrong-doer's name. 8*1''. l''orgery in first degree. 885. False certilicute to certain instiuments is forgery. 88(1. Punislinient for forgery in first degree. 882. Forgery in second degree 888. Punishment for forgery in second degree. 8b!). Forgery in third degree. 8!)U. Ullicur of corporation selling fraudulent shares. 8U1. Forging passage tickets. 892. Forging United States or state stamps. 803. Punislinient for forgery in tliird degree. 8U4. Having possession of counterfeit coin. 8!)5. Advertising counterfeit money and stamps. § 880. Definitions. Terms forge, forged and forging. — The expressions " forge," "forged" and "forging," as used in this article, include false making, counterfeiting and the alteration, erasure, or obliteration of a genuine instrument, in whole or in part, the false making or counterfeiting of the signature, of a party or witness, and the placing or connecting together with intent to defraud different parts of several genuine instrumrnts. Definition of written instrument. — An instrument partly writ- ten and partly printed, or wholly printed with a written sis^ature thereto, and any signature or Avritins; purporting to be a signature of, or intended to bind an individual, a partnership, a corpo- ration or association or an officer thereof, is a wril;en instrument or a writing, within the provisions of this article. DerlTatlon: Penal Code, §§ 513, 520. People V. Underliill (1804), 142 N. Y. 38, rev'g 75 Hnn, 329, 20 N. Y. Snpp. 1030; People v., Drayton (1809), 41 App. Div. 40, 58 N. Y. Snpp. 4.'?9, lev'd ]CS N. y. 10; Marden v. Dortliy (1R09), 160 N. Y. 39, alT'g 12 App. Div. 188, 42 N. Y. Supp. 827; People v. Mingey (1907), 118 App. Div. 662, 103 M. Y. Supp. 627, g. Crim. Rep. 110. 177 §§ 88 1-883 J FORGERY [Art. 84 § 881. Uttering forged instruments is forgery. A person who, knowing the same to be forged or altered, and ■with intent to defraud, utters, offers, disposes of or puts oil as true, or has in his possession, with intent so to utter, offer, dispose of, or put off: 1. A forged seal or plate, or any impression of either; or, 2. A forged coin ; or, 3. A forged will, deed, certificate, indorsement, record, "instru- ment or writing, or other thing, the false making, forging, or altering of which is punishable as fnygcry, Is guilty of forgery in the same degree as if he had forged the same. Derivation: Penal Code, § 521. People V. Martin (18S5), 30 Hun, 462, 3 N. Y. Cr. 122; People v. Adler (18!)3), 140 N. Y. 331, afl'g 53 N. Y. S. R. 036, 25 N. Y. Supp. 1132; People V. Wiman (1894), 9 Misc. 441, 29 N. Y. Supp. 1034, 85 Hun, 320, 32 N. Y. Supp. 1037, 148 N. Y. 2!»; People v. Undeiliill (1894), 142 N. Y. 38, 9 N. Y. Cr. 172, rev'g 75 Hun, 329, 20 -N. Y. Supp. 1030; People v. Altman (1895), 147 N. Y. 473, rev'g 80 Hun, 508, 33 N. Y. Supp. 905; Harden v. Dorthy (1S99), 160 N. Y. 50, afl'g 12 App. Div. 188, 42 N. Y. Supp. 827; People v. Alderdice (1907), 120 App. Div. 368; People v. Browne (1907), 103 N. Y. Supp. 903, 118 App. Div. 793, 21 N. Y. Cr. 93; People v. Mingey (1907). 118 App. Div. 652, 103 N. Y. Supp.' 627, 21 N. Y. Cr. 110; see also People v. Camp, 17 N. Y. Supp. 396; Paige v. People, 3 Abb. Dec. 439, 3 Parli, 683; Watson v. People, 64 Barb. 1-^0; People v. Caton, 25 Mich. 392; Smith v. State, 20 Nebr. 284, 57 Am. Rep. 832. § 882. Falsely indicating person as corporate ofRcer. The false making or forging of an instrument or writing, pur- porting to have been issue d by or in behalf of a corporation or association, state or government, and bearing the pretended sig- nature of flny person, therein falsely indicated as an agent or officer of such corporation, is fnrgi ry in the same degree, as if that person were in truth such officer or agent of the corporation or associa- tion, state or government. Derivation: Penal Code, § 519. Manhattan Life Ins. Co. v. Railroad Co. (1893), 139 N. Y. 149. § 883. Uttering writing signed with wrong-doer's name. Whenever the false making or uttering of any instrument or -writing is forgery in any degree, a person is guilty of forgery in the Bame degree, who, with intent to defraud, offers, disposes of, or Art. 84] FORGERY [§ 884 puts off such an instrument or writing subscribed or indorsed in his own name, or that of any other person, whether such signature be genuine or fictitious, under the pretense that such subscription or indorsement is the act of another person of the same name, or of a person not in existence. Derivation: Penal Code, § 522. Manhattan Life Ins. Cq. v. Railroad Co. (1893), 139 N. Y. 149; Third Nat. Bank v. Merchants' Nat. Bank (1894), 76 Hun, 475, 27 N. Y. Supp. 1070; People V. Browne (1907), 118 App. Div. 799, 103 N. Y. Supp. 903, 21 N. Y. Cr. 93. § 884. Forgery in first degree. A person is guilty of forgery in the first degree who with intent to defraud, forges: 1. A will or codicil of real or personal property, or the attesta- tion thereof, or a deed or other instrument, being or purporting to be the act of another, by which any right or interest in prop- erty is or purports to be transferred, conveyed, or in any way charged or affected; or, 2. A certificate of the acknowledgment or proof of a will, codi- cil, deed, or other instrument, which by law may be recorded or given in evidence when duly proved or acknowledged, made or purporting to have been made by a court or officer duly authorized to make such a certificate; or, 3. A certificate, bond, paper writing, or other public security, issTied or purporting to have been issued by or under the authority of this state, or of the United States, or of any other state or territory of the United States, or of any foreign government, country or state, or by any officer thereof in his official capacity, by which the payment of money is promised absolutely or upon any contingency, or the receipt of any money or property is ac- knowledged, or being or purporting to be evidence of any debt or liability, either absolute or contingent, issued or poirporting to have been issued by lawful authority; or, 4. An indorsement or other instrument, transferring or put^ porting to transfer the right or interest of any holder of such a certificate, obligation, public security, evidence of debt or lia- bility, or of any person entitled to such right or interest ; or, 5. A certificate of stock, bond or other writing, bank uote^ bill of exchangre, draft, check, certificate of deposit, or other ob^ ligation or evidence of debt, issued or purporting to be issued 179 § 884] FORGERY [Art. 84 by any bank, banking association or body corporate existing undur the laws of this state, or of the United States, or of any other state, government, or country, declaring or purporting to declare any right, title or interest of any person in any portion of the capital stock, or property of such a body corporate, or promising or purporting to promise or agree to the payment of money, or the performance of any act, duty, or obligation; or, G. An indorsement or other writing, transferring or purport- ing to transfer the right or interest of any holder of such a cer- tificate, bond, or writing obligatory, or of any person entitled to such right or interest. Derivation: Penal Code, § 509. People V. Corbin (1874), 56 N. Y. 363; Kerrains v. Peopln (1875), 60 N. Y. 221, in Am. Rep. 153; Brown v. People (1870), 8 Hun, 562, alT'd 72 N. Y. 671; Mann v. People (1878), 15 Hun, 155, aff'g 75 N. Y. 480; Mayer v. Peo- ple (1880), 80 N. Y. 364; People v. D'Argencour (1884), 95 N. Y. 024. 028, 2 N. Y. Cr. 207; People v. Dewey (1885), 35 Hun, 308; People v. Brie (1887), 43 Hun, 317, aff'd 105 N. Y. 618; People v. Everhardt (1887), 104 N. Y. .501, N. Y. Cr. 232, alT'd 5 N. Y. Cr. Eep. 91, 25 W. Dig. 300; People v. De Kro.vft (1888), 49 Hun, 71, 76, 1 N. Y. Supp. 692; People v. Altman (1895), 147 N. Y. 473, rev'g 80 Hun, 568, 33 N. Y. Supp. 005; People v. Wiman (1895), 148 N. Y. 29, 12 N. Y. Cr. 77, aff'd 85 Hun, 320, 32 N. Y. Supp. 1037; People v. Drayton (1901), 108 N. Y. 12, 14 N. Y. Cr. 141, rev'g 41 App. Div. 40, 58 N. Y. Supp. 439; People v. Filkin (1903), 83 App. Div. 589, 82 N. Y. Supp. 15, 17 N. Y. Cr. 348; People v. Weaver (1903), 177 N. Y. 434, rev'g 81 App. Div. 567, 81 N. Y. Supp. 519; People v. Alderdice (1907), 120 App. Div. 308; People V. Colmey (1907), 188 N. Y. 573, aff'g 116 App. Div. 516, 101 N. Y. Supp. 1010; People v. Browne (1907), 118 App. Div. 799. 103 N. Y. Supp. 903; see also Billings v. State, 107 Ind. 54, 57 Am. Rep. 77; Bougli v. t'eople, 1 Week. Dig. 182; Conner's Case, 3 City Hall Rec. 59; People v. Flanders, 18 Johns. 163; People v. Harrison, 8 Barb. 560; People v. Jones, 27 N. Y. Week. Dig. 222; Paige v. People, 3 Abb. Dec. 439, 488, 6 Parit, 683; People v. Pea- cock, 6 Cow. 72; People v. Stearns, 21 Wend. 409; Vincent v. People, 5 Park, 88; State v. Wheeler, 43 Alb. L. J. 257; Rex v. Arscott, Car. & Payne, 408, 2 Bish. Cr. Law (7th ed.), and see. 582, 2 Whart. Cr. Law (7th ed.), sec. 1432, 2 Arch. Crim. Pr. & PI. (7th ed.), 819, Pomeroy's ed. of Arcli., vol. 2, p. 1584; Abbott v. Rose, C2 Me. 194; Com. v. Baldwin, 11 Gray, 197; Barton V. State, 23 Wis. 587; Slate v. Cenham, 7 Com. 414; Peopla v. Blake, 05 Cal. 275; Heilbronner's Case, 1 Park, 149; U. S. v. Long, 3t) Fed. 678; Com. v. McDonald, 5 Cush. 365; State v. McKiernan, 17 Nev. 228; Rex v. Story, Euss & Ryan, 81 ; Queen v. White, 1 Den. Cr. Cas. 208, 2 Cox Cr. Cas. 210, 2 C. & IC 404; Witliaup v. United States, 127 Fed. 532; State v Young, 46 N, H. 266. 180 Art. 84] FORGEEY [§§ 885-887 § 885. False certificate to certain instruments is forgery. An officer authorized to take the proof or acknovledgmeDt of an instrument which by law may be recorded, who wiliully certifies falsely that the execution of such an instrument was acknowledged by any party thereto, or that the execution of any such instrument was proved, is guilty of forgery in the lirst degree. DeriTation: Penal Code, § 610. People V. Hayes (1893), 24 N. Y. 201, 70 Hun, 111, 24 N. Y. Supp. 134} Albany County Savings Bank v. MoCarty (1896), 149 N. Y. 82, rev'g 71 Hun, 227, 24 W. Y. Gapp. 935; Harden v. Dorthy (1809), 160 N. Y. 50, aff'g 12 App. Div. 188, 42 N. Y. Supp. 827. § 886. Punishment for forgery in first degree. Forgery in the first degree is punishable by imprisonment for a term not exceeding twenty years. Derivation: Penal Code, § 523, amended L. 1802, eb. 002, { 14. § 887. Forgery in second degree. A person is guilty of forgery in the second degree who, with in- tent to defraud: 1. Forges the great or privy seal of this state, the seal of any court of record, or of any public office or officer authorized by law, or of any body corporate created by or existing under the laws of this state, or of the United States, or of any other state or any territory of the Uuited States, or of any other state, government, or country, or any impression of such a seal ; or any gold or silver coin, whether of the United States, or of any foreign state, gov- ernment or country; or, 2. Forges a record of a will, conveyance, or instrument of any kind, the record of which is by the law of this state made evi- dence, or of any judgment, order, or decree of any court or officer, or a certified or authenticated copy thereof; or, A jndgment roll, judgment, order, or decree of any court or offiner, or an enrollment thereof, or a certified or authenticMted copy thereof, or any document or writing purporting to be such jm^'rment, order, decree, enrollment, or copy; or, An entry made in any bonk of record or aeconnts, kept by or 'Ti the oflice of anv officer of this state, or of any villa^p, city, town, or eminty of the state, by which anv demand, claim, obli- gation, or interest, in favor of or against the people of the states 181 § 887] FOKGERY [Art. 84 or any city, village, town or county, or any officer thereof, is or purports to be created, increased, diminished, discharged, or in any manner affected; or an entry made in any book of records or accounts kept by a corporation doing business within the state, or in any account kept by such a corporation, whereby any pe- cuniary obligation, claim, or credit is or purports to be created, increased, diminished, discharged, or in any manner affected; or. An instrument, document, or writing, being or purporting to be, a process or mandate issued by a competent court, magistrate, or officer of the state, or the return of an officer, court or tribunal, to such a process or mandate; or a bond, recognizance, under- taking, pleading, or proceeding, filed or entered in any court of the state, or a certificate, order or allowance by a competent court, or officer, or a license or authority granted pursuant to any stat- ute of the state or a certificate, document, instrument, or writing, made evidence by any law or statute; or. An instrument or writing, being or purporting to be the act of another, by which a pecuniary demand or obligation is or pur- ports to be or to have been created, increased, discharged, or diminished, or in any manner affected, or by which any rights or property whatever are or purport to be or to have been created, transferred, conveyed, discharged, increased, or diminished, or in any manner affected, the punishment for forging, altering, or counterfeiting which is not hereinbefore prescribed, by which false making, forging, altering, or counterfeiting, any person may be bound, affected or in any way injured in his person or prop- erty; or, 3. Makes or engraves a plate in the form or similitude of a promissory note, bill of exchange, bank note, draft, check, cer- tificate of deposit, or other evidence of debt, issued by a banker, or by any banking corporation or association, incorporated or carrying on business under the laws of the state, or of the United States, or of any other state or territory of the United States, or of any foreign government, or country, without the authority of such banker, or banking corporation or association ; or, "Without like authority, has in his possession or custody such a plate, with intent to use, or permit the same to be used, for the purpose of taking therefrom any impression to be uttered ; or. Without like authority, has in his possession or custody any impression taken from such a plate, with intent to have the same filled up and completed for the purpose of being uttered; or, 182 Art. 84] FOEGERY [§§ 888-889 Makes or engraves, or causes to be made or engraved, upon any plate, any figures or words, with intent that the same may be used for the purpose of falsely altering any evidence of debt here- inbefore mentioned. A plate, specified in this section, is in the form and similitude of the genuine instrument imitated, if the finished parts of the engraving thereupon resemble and conform to similar parts of the genuine instruments. Derivation: Penal Code, §§ 511, 512. Graves v. American Exchange Bank (1858), 17 N. Y. 205; Noakes v. Peo- ple (1862), 25 N. Y. 380, aff'g 5 Park, 2!)1; People v. Clements (1863), 26 N. Y. 194; Miller v. People (1873), 52 N. Y. 304, 11 Am. Rep. 70G; Rose- krans v. People (1874), 3 Hun, 287; Parmelee v. People (1876), 8 Hun, 623; People V. Mann (1878), 75 N. Y. 484, 31 Am. Rep. 482, 19 Alb. L. J. 28; People V. D'Argencour (1884), 32 Hun, 178, aff'd 95 N. Y. 624; People v. Dewey (1885), 35 Hun, 308; People v. Elmore (1885), 3 N. Y. Cr. 264; Peo- ple V. Wheeler (1888), 47. Hun, 484; People v. Reinitz (1889), 7 N. Y. Or. 71, 6 N. Y. Supp. 672; People v. Tower (1892), 135 N. Y. 457; People v. Adler (1893), 140 N. Y. 331, aff'g 53 N. Y. S. R. 936, 25 N. Y. Supp. 1132; People V. Altman (1895), 147 N. Y. 473, rev'g 86 Hun, 568, 33 N. Y. Supp. 905; People v. Wiman (1895), 148 N. Y. 129, 12 N. Y. Cr. 77; People v. Oishei (1897), 20 Misc. 163, 45 N. Y. Supp. 49, 12 N. Y. Cr. 362; People v. Mersbon (1899), 43 App. Div. 541, 60 N. Y. Supp. 115; Matter of Van Orden (1900), 32 Misc. 215, 65 N. Y. Supp. 720, 15 N. Y. Cr. 79; People v. Hertz (1901), 35 Misc. 177, 71 N. Y. Supp. 489; People v. Martin (1902), 38 Misc. 67, 76 N. Y. Supp. 953; People v. Weaver (1903), 177 N. Y. 434, 18 Crim. Rep. 187, rev'g 81 App. Div. 567, 81 N. Y. Supp. '519; People v. Herzog (1905), 47 Misc. 50, 93 N. Y. Supp. 357, 19 Crim. Rep. 375; People v. Gian- v^ochio (1907), 188 N. Y. 561, aff'g 113 App. Div. 903, 98 N. Y. Supp. 1110; People V. Mingey (1907), 118 App. Div. 652, 103 N. Y. Supp. 627, 21 Crim. Kep. 110; see also People v. Farrington, 14 Johns. 348; People v. Graham, 1 Buff. Super. Ct. 151, 6 Park, 135; Harris v. People, 9 Barb. 664; Martin's Case, 6 City Hall Rec. 27; People v. Osmer, 4 Park, 244; People v. Peacock, 6 Cow. 72; Quinn's Case, 6 City Hall Rec. 63; People v. Shaw, 5 Johns. 236; State v. Covington, 94 N. C. 913, 55 Am. Rep. 650; Montgomery v. State, 12 Tex. App. 323. § 888. Punishment for forgery in second degree. Forgery in the second degree is punishable by imprisonment for a term not exceeding ten years. Derivation: Penal Code, § 524, amended L. 1892, ch. 662, § 15. § 889. Forgery in third degree. A person who : 1. Being an officer or in the employment of a corporation asso- 183 § 8S9J rOEGERY [Art 8i ciation, partnership or individuals falsifies, or unlawfully and cor- ruptly alters, erases, obliieraies or destroys any accounts, books of accounts, records, or other writing, belonging to or appertaining to the business of the corporation, association or partnershii> or indi- viduals; or, 2. With intent to injure or defraud, shall falsely make, alter, forge or counterfeit, or shall cause, aid, abet, assist or other- wise connive at, or be a party to the making, altering, forging or couuterfeiliug, of any lelter, telegram, or other written conniiuni- cation, paper, or instrument by which making, altering, forging or counterfeiting, any other person shall be in any manner injured in his good name, standing, position or general reputation: or, 3. Shall alter, or shall cause, aid, abet, oi otherwise connive at, or be a party to the uttering of any letter, telegram, report or other written communication, paper or instrument purporting to have been written or signed by another pei'son, or any paper pur- porting to be a copy of any such papr or Aviuting where no original existed, which said letter, telegram, report or other writ- ten communication, paper or instrument, or paper purporting to be a copy thereof, as aforesaid, the person uttering the same sliall know to be false, forged or counterfeited, and by the uttering of which the sentiments, opinions, conduct, character, prospects, iii- ^•rests or rights of such other person shall be misrepresented or otherwise injuriously aflFectrd ; or, 4. With intent to defraud, shall forge, counterfeit or falsely alter and wrongfully utter any ticket, contract or other paper, or writing entitling, or pui'porting to entitle, the person whose name appears therein, or the holder or bearer thereof, to entrance upon the grounds or prcuiisos of any men:bership corporation, or being thereupon, to remain upon such grounds or premises; or, with like intent, shall use any such ticket, contract or other paper or writing, to effect an entrance or as evidence of his right to veuiaiu upon such grounds or premises ; or, with like intent, shall sell, ex- change or deliver, or keep or offer for sale, exchange or delivery, or receive upon any purchase, exchange or delivery, any such ticket, contract or other paper or writing, knowing the same to have been forged, counterfeited or falsely altered, ]s guilty of forgery in the third degree. A person who, with intent to defraud or to conceal any larceny or misappropriation by any person of any money or property: 1. Alters, erases, obliterates, or destroys an account, book of 184 Art. 84] FOEGERY [§ 890 accounts,, record, or writing, belonging to, or appertaining to the business of, a corporation, association, public office or officer, partner- Bhip, cr individual; or, 2. Makes a false entry in any such account or book of accounts ; or, 3. Wilfully omits to make tiue entry of any material particular in any such account or book of accounts, made, written, or kept by him or under his direction. Is guilty of forgeiy in the third degree. 4. The altering, eiasing, obliterating, or destruction of any account, book of account, recoid, or writing, or the making of a fake entry in an aceoimt, statement of financial condition, or book of accounts, or the willful omission of material entries in such account, statement or books of account, by any person, whether by his own hand or the hand of another, if made with intent to defraud creditors cr to conceal a crime, or to conceal from creditors or stockholders or other pereons interested matters materially affecting the financial condition of any individual, corporation, association, or partnership; or to provide a basis for the obtaining of credit or property by or for such individual, coiporation, association, or partnership, shall render such person guilty of forgery in the third degree, within the meaning of this section ; but this prevision shall not apply to any clerk, bookkeeper, or other employee, who, without personal profit or gain, merely executes the orders of his employer. (Subd. 4 amended by L. 1918, eh. 343, in effect Sevit 1, 1913.)' DeHvation: Penal Code, § 514, amended L. 1884, ch. 378, § 1; L. 1892, ch. 69?, § 1; Pe!ial Code, § 515. Phelps V. People (1878), 72 N. Y. 371, aff'g 6 Hun, 428; People v. Under- hill (1894), 142 N. Y. 38, 44, rev'g 75 Hun, 329, 26 N. Y. Supp. 1030; People V. Her-og ( 1905 ) , 47 Misa. 50, 93 N. Y. Supp. 357, 19 N. Y. Cr. 372, 375, 380, 382; People v. Abeel (1905), 182 "N. Y. 415, 19 N. Y. Cr. 525, aff'g 100 App. Div. 516, 91 N. Y. Supp. 1107; People v. Hegeman (1907), 57 Misc. 295, 107 N. Y. Supp. 261, 21 N. Y. Cr. 535; People v. Curtiss (1907), 118 App. Div. 259, 103 N. Y. Supp. 395; People ex rel. Hegeman v. Corrigan (1908), 129 App. Div. 76 ; People v. Luhrs ( 1908 ) , 127 App. Div. 637 ; see also Phelps' Case, 49 How. Pr. 462, 72 N. Y. 365; Wright v. Henkel, 190 U. S. 47. § 890. Officer of corporation selling fraudulent shares. An officer, agent or other person employed by any company or cor- poration existing under the laws of this state, or of any other state or tenitory of the United States, or of any foreign government, who wil- fully and with a de?ign to defraud, sells, pledges or issues, or causes to be fold, pledged or issued, or signs or procures to be signed with intent to sell, pledge or issue, or to be sold, pledged or issued, a false, forged or fraudulent paper, wiiting or instrument, being or purport- ing to be a scrip, certificate or other evidence of the ownership or transfer of any share or shares of the capital stock of such company or corporation, or a bond or other evidence of debt of such company or corporation, cr a certificate or other evidence of the ownership or of the transfer of anv such bond or other evidence of debt, is guilty of forsrerv in the third desrree, and unon conviction, in addition (o the P'mi^hn'ent prescribed in section eight hundred and ninety-three of thiB p>iaT)ter for that off°Ti^p. may also be sentenced to pay a fine not tixrpprlincr three tVon'-fi-nd dollars. Derivation: Penal Cods. § 518. 185 §§ 891-894] FORGERY [Art. 84 § 891. Forging passage tickets. A person who, with intent to defraud, forges, counterfeits, or falsely alters any ticket, check or other paper or writing, entitling or purporting to entitle the holder or proprietor thereof to a pas- sage upon any railway or in any vessel or other public conveyance ; and a person who, with like intent, sells, exchanges or delivers, or keeps or offers for sale, exchange or delivery, or receives upon any purchase, exchange or delivery, any such ticket, knowing the same to have been forged, counterfeited or falsely altered, is guilty of forgery in the third degree. Derivation: Penal Code, § 51G. People V. Harrison, 8 Barb. 560; People v. Shall, 9 Cow. 778; State v. Weaver, 84 N. C. 836, 55 Am. Eep. 647; Com. v. Bay, 3 Gray, 441; Reg. v. Boult, 3 Carr. & K. 604. § 892. Forging United States or state stamps. A person who forges, counterfeits or alters any postage or revenue stamp of the United States, or any tax or revenue stamp of the state of New York, or who sells, or offers, or keeps for sale, as genuine or as forged, any such stamp, knowing it to be forged, counterfeited or falsely altered, is guilty of forgery in the third degree. Derivation: Penal Code, § 517, amended L. 1905, cli. 242, § 1. § 893. Punishment for forgery in third degree. Forgery in the third degree is punishable by imprisonment for not more than five years. Derivation: Penal Code, § 525. § 894. Having possession of counterfeit coin. A person who has in his possession a counterfeit of any gold or silver coin, whether of the United States or of any foreign counfry or government, knowing the same to be counterfeited, with intent to sell, utter, use, circulate or export the same, as true or as false, or to cause the same to be so uttered or passed, is punishable by imprisonment not inore than five years, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment. Derivation: Penal Code, § 520. Weaver's Case, 2 City Hall Rec. 57; Mose's Case, 2 City Hall Rec. 84; Murphy's Case, 4 City Hall Rec. 42; Gallagher's Case, 5 City Hall Rec. I; 186 Art. 84] FORGERY [895 Oorsett's Case, 5 City Hall Rec. 77; Lampier's Case, 5 City Hall Rec. 79; Quinn's Case, 6 City Hall Rec. 93; Stewart v. Jessup, 51 Ind. 411, 19 Am. Rep. 738. § 895. Advertising counterfeit money and stamps. A person who. prints, writes, nttei-s, publishes, sells, lends, gives away, circulates or distributes any letter, writing, circular, paper, pamphlet, hand bill or any other written or printed matter, ad- vertising, offering or purporting to advertise or offer for sale, loan, exchange, gift or distribution, or to furnish, procure or distribute any counterfeit coin, paper money, internal revenue stamp, post- age stamp or any other token of value, or what purports to be counterfeit coin, paper money, internal revenue stamp, postage stamp or any other token of value, or giving, or purporting to give, either directly or indirectly, information where, how, of whom or by what means any counterfeit coin, paper money, internal revenue stamp, postage stamp, or token of value, can be procured or had, or what purports to be counterfeit coin, paper money, internal revenue stamp, postage stamp or other token of value, can be pro- cured or had, or whoever shall aid, assist or abet in any manner, in any scheme or device v/hatsoever, offering or purporting to offer, for sale, loan, gift, exchange or distribution, any counter- feit coin, paper money, internal revenue stamp, postage stamp or other token of value, whether called " green articles," " queer coin," " paper goods," " bills," " spurious treasury notes," " United States goods," " grren paper goods," " business that is not legitimate," " cigars," " green cigai-s," or by any other name or title, or any other device of a similar character, shall be guilty of a felony and on conviction shall be punished by iuiprisonmcnt for not less than one year nor more than five years, and by a fine of Tint less than one hundred dollars nor more than one thousand dollnrs for each offense. Whoever in and for executing, operating, promoting, carrying on, or in the aiding, assisting or abetting in the promoting, operat- ing, carrying on, or executing of any scheme or device whatsoever to defraud, by use or means of, any papers, writings, letters, cir- culars or written or printed matters concerning the offering for sale, loan, gift, distribution, or exchange, of counterfeit cuin, paper money, internal revenue stamps, postage stamps or other tokens of value as provided in this section, shall use any fictit'ous, false or assumed name or address, or name or address other than 3 37 § 895] FOEGERY [Art. 84 Bis own right, proper and lawful name; or whoever in the executing, operating, promoting, carrying on, aiding, assisting or abetting in the execution, promotion or carrying on of any scheme or device offering for sale, loan, gift, or distribution, or purporting to offer for sale, loan, gift or distribution, or giving or purporting to give information directly or indirectly, whore, how, of whom, or by what means any counterfeit coin, paper monry, internal revenue stamp, postage stamp, or other token of value, can be obtained or had, or who shall knowingly rrccive or take from the mails of the United States any letter or package ad- dressed to any such fictitious, false or assumed name or address or name other than his own right, proper or lawful name shall be guilty of a felony, and on conviction shall be punished by im- prisonment for not less than one year, nor more than five years, and by a fine of not less than one hundred dollars nor more than two thousand dollars. Any letter, circular, writing, or paper, offering or purporting to offer for sale, loan, gift, or distribution or giving, or purporting to give information directly cr indirectly, where, how, of whom, or by what means any counterfeit coin, paper money, internal revenue stamp, postage stamp, or token of value, may be obtained or had, or concerning any similar scheme or device to defraud the public, whether such article, matter or thing is called " green articles," " queer coins," " paper goods," "queer," "articles," "bills," "business that is not legitimate," " spurious treasury notes," " United States goods," " green paper goods," " green articles," " cigars," " green cigars," or by any other name device or title of a similar character, shall be deemed presumptive proof of the fraudulent character of such scheme. DerlTatlon: Penal Code, § 527, amended L. 1887, oh. 687, § 1. People V. Reilly (1889), 51 Hun 024, 4 N. Y. Supp. 81; People v. AlhoiT (1803), HO N. Y. 130, rev'g 71 Hun, 123, 24 N. Y. Supp. 519; People v. Marvie (1894), 79 Hun, 310, 29 N. Y. Supp. 381. im Art 861 FRAUDS AND CHEATS [§§ 920-923 ARTICLE 86. FRAtmS AND CHEATS. SBcnON d20. Fraud in aifairs of limited partnership. .L. intent ti> defraud. 922. Production of pretended heir. i'i'S. Substituting one cliild for another. U24. Fictitious cupaitnersliip names. 925. Frauds on hotel-icnte it, shall be presumptive evidence against the person on whom snch notice shall be served of a violation of the provisions of section nine hundred and seventy-four. And in case the person giving said notice shall make an application as hereinbefore provided, and a final order shall be made as specified in section twenty-rwo hundred and forty-nine of the code of civil procedure, such order shall be evidence of a violation of the provisions of section nine hundred and seventy-four by the occupant of said premises and by the person on whom the notice herein provided for shall have been served. For the purpose of such applications, summary pro- ceedings to recover possession of the premises so used or occu])ird may be maintained under the provisions of chapter seventeen, title two, of the code of civil procedure. Derivation: Penal Code, § 344c, added L. 1001, cli. 190, § 1. § 977. Seizure of gambling implements authorized. A person, who is required or authorized to arrest any person for a violation of the provisions of this article, is also authorized and required to seize any table, cards, dice or other apparatus or article, suitable for gambling purposes, found in the possession or nndcr the control of the person so arrested, and to deliver the same to the magistrate before whom the person arrested is required to bo taken. Derivation: Penal Code, § 345. Willis V. Warren, 17 How. Pr. 100, 1 Hilt. 500. § 978. Gambling implements to be destroyed or delivered to district attorney. The magistrate, to whom any thing suitable for gambling pur- poses is delivered pursuaTit to the last section, must, upon the examination of the defendant, or if snch examination is delayed or prevented, without awaiting such examination, determine the character of the thing so delivered to him, and whether it was actually employed by the defendant in violation of the provisions of this article; and if he finds that it is of a character suitable for gambling purposes, and that it has been used by the defendant in 20G Art. 88] GAMBLING [§§ 979-981 violation of this article, he must cause it to be destroyed, or to be delivered to the district attorney of the county in which the de- fendant is liable to indictment or trial, as the interests of justice may, in his opinion, require. Derivation: Penal Code, § 34G. Lawton v. Steele (1890), 119 N. Y. 226, aiTg 5 N. Y. Supp. 953; see also Willis V. Warren, 17 How. Pr. 100, 1 Hilt. 590; Lowry v. Rainwater, 70 Mo. 152, 35 Am. Rep. 420, 21 Alb. L. J. 73; State v. Robliina, 124 Ind. 303, 8 L. R. A. 438. § 979. Gambling implements to be destroyed upon convic- tion. Upon the conviction of the defendant, the district attorney must cause to be destroyed every thing suitable for gambling purposes, in respect whereof the defendant stands convicted, and which re- mains in the possession or under the control of the district attorney. Derivation: Penal Code, § 347. Willis V. Warren, 17 How. Pr. 100, 1 Hilt. 500. § 980. Persuading person to visit gambling places. A person, who persuades another to visit any building or part of a building, or any vessel or float, occupied or used for the purpose of gambling, in consequence whereof such other person gambles therein, is guilty of a misdemeanor; and in addition to the punishment prescribed therefor, is liable to such other person in an amount equal to any money or property there lost by him at play, to be recovered in a civil action. Derivation: Penal Code, § 348. People V. Todd (1880), N. Y. Or. 222, 4 N. Y. Supp. 26. § 981. Duty of masters to suppress gambling on board their vessels. If the commander, owner or hirer of any vessel or float, know- ingly permits any gambling for money or property on board sucl vessel or float, or if he does not, upon his knowledge of the fact^ immediately prevent the same, he is puni-shable by a fine not ex- ceedingly five hundred dollars; and in addition thereto is liable to any party losing money or property by means of gambling in 207 14 §§ 982-984] GAMBLING [Art. 88 violation of this section, in a sum equal to the money or property, to be recovered in a civil action. Derivatiom: Penal Code, § 350.' People V. Todd (1889), 6 N. Y. Cr. 222, 4 N. Y. Supp. 26. § 982. Keeping slot machines. Any person who has in his possession, or under his control, or who permits to be placed, maintained or kept in any room, space, in closure or building, owned, leased or occupied by him, or under his management or control, any machine, apparatus or device, into which may be, or might have been, inserted any piece of money or other object, and from which, as a result of such insertion, or as a result of such insertion and the application of physicial or mechanical force, may issue, or might have issiied, any piece or pieces of money, or any check or memoranda calling for any monry, and which machine, apparatus or device is commonly knovioi as a slot machine, is guilty of a misdemeanor. Derivation: Penal Code, § 337a, added L. 1899, ch. 655, { 1. § 983. Seizures of slot machines and arrest of person in pos- session. It shall be th3 duty of every officer authorized to make arrests to seize every machine, apparatus or device answering to the de- scription contained in the last section and to arrest the person actually or apparently in possession or control thereof or of the premises in which the same may be found, if any such person be present at the time of the seizure, and to bring the machine, ap- paratus or device, and the prisoner, if there be one, before a committing magistrate. Derivationi Penal Code, § 337b, added L. 1899, ch. 655. § 984. Destruction of slot machines by magistrates. The magistrate before whom any machine, apparatus or dei ice is brought pursuant to the last section must, if there be a prisonrr, and if he shall hold such prisoner, cause the machine, apparatus or device to be delivered to the district attorney of the county to be used as evidence on the trial of the said prisoner. U there 208 Art. 88] GAMBLIN"G [§§ 985-986 be no prisoner or if the magistrate does not hold the prisoner, he mnst cause the immediate destruction of the machine, apparatus or device. DeriTation: Penal Code, § 337c, added L. 1899, ch. 655, § 1. § 985. Destruction of slot machines by the trial court. It shall be the duty of the district attorney of the county to see that every person held in pursuance of the last section shall be brought to trial within thirty days from the date of his final examination before the magistrate ; and the machine, apparatus or device shall be produced in court on the trial. It shall be the duty of the trial court, after the disposition of the case, and whether the defendant be convicted, ac- quitted or fails to appear for trial, to cause the immediate destruction of the machine, apparatus oir device. Derivation: Penal Code, § 337d, added L. 1899, ch. 655, § 1. § 985-a. Disposition of contents of destroyed slot machine. The officer destroying a slot machine pursuant to the provisions of sections nine hundred and eighty-four and nine hundred and eighty- five of this chapter shall pay over any moneys found therein to the police pension fund of the city in which such destruction occurs, or, if there be no such fund or such destruction occurs in any town outside of a city, such money shall be paid into the poor fund of such town or city. If such machine have contents of value other than money, the same shall be sold by the officer destroying the machine and the pro- ceeds disposed of as above provided for the disposition of money con- tents. (Added by L. 1917, ch. 188, in efEect Sept. 1, 1917.) § 986. Pool-selling, book-making, bets and wagers. Any person who engages in pool-selling, or book-making, with, or without writing at any time or place ; or any person who keeps or occu- pies any room, shed, tenement, tent, booth, or building, float or vessel, or any part thereof, or who occupies any place or stand of any kind, upon any public or private grounds, within this state, with books, papers, apparatus or paraphernalia, for the purpose of recording or registering bets or wagers, or of selling pools, and any person who records or registers bets or wagers, or sells pools or makes book, with, or without writing upon the result of any trial or contest of skill, speed or power of endurance, of man or beast, or upon the result of any political nomination, appointment or election; or upon the result of any lot, chance, casualty, unknown or contingent event whatsoever ; or any per- son who receives, registers, records or forwards, or purports or pre- tends to receive, register, record or forward, in any manner what- soever, any money, thing or consideration of value, bet or wagered, or offered for the purpose of being bet or wagered, by or for any other person, or sells pools, upon any such result ; or any person who, being the owner, lessee or occupant of any room, shed, tenement, tent, booth or building, float or vessel, or part thereof, or of any grounds within this state, knowingly permits the same to be used or occupied for any of these purposes, or therein keeps, exhibits or employs any device or 209 § 987] GAMBLING [Art. 88 apparatus for the purpose of recording or registering such hats or wagers, or the selling of such pools, or becomes the custodian or de- positary for gain, hire or reward, of any money, property or thing of value, staked, wagered or pledged, or to be wagered or pledged upon any sucli result ; or any person who aids, assists or abets in any manner in any of the said acts, which are hereby forbidden, is guilty of a mis- demeanor, and upon conviction is punishable by imprisonment in a penitentiary or county jail for a period of not more than one year (Amended by L. 1910, ch. 488, in effect Sept. 1, 1910.) Derivation: Penal Oode, § 351, as amended L. IS&S, ch. 572'; L. 1901, ch 636; L. 1908, ch. 507. People V. Bauer (1885), 37 Hun, 407, 3 N. Y. Cr. 433; People v. Kelly (1885), 3 N. Y. Cr. 272, 22 Week. Dig. 04; People ex rel. Ottolengui v. Bar- bour (1S87), 5 N. Y. Cr. 384; Brennan v. Brighton Beaeli Assn. ( 181)0) , 50 Hun, 188, 9 N. Y. Supp. 220; De Lacy v. Arlams (1893), 3 Misc. 432, 2;i N. Y. Supp. 297: Gideon v. Dwyer (1895), 87 Hun, 240, 254, 33 N. Y. Supp. 754; People V. Cleary (1895), 13 Misc. 540, 35 N. Y. Supp. 588; People ex rel. Weaver v. Van De Carr (1890), 150 N. Y. 439, aff'g 7 App. Div. 008, 39 N. Y. Supp. 581; Grannan v. Westchester, etc., Assn. (1897), 10 App. Div. 8, 44 N. Y. Supp. 790; People ex rel. Sturgis v. Fallon (1897), 152 N. Y. 1, 12 N. Y. Cr. 273; People v. Levoy (1902), 72 App. Div. 55, 16 N. Y. Cr. 496, 70 N. Y. Supp. 783; People ex rel. Clifton v. DeBragga (1902), 73 App. Div. 579, 17 N. Y. Cr 12, 77 N. Y. Sapp. 7; People e\ rel. Allen v. Hagan (1902), 170 N. Y. 40, 16 N. Y. Cr. 309; People v. Stedeker (1902), 75 App. Div. 450, 78 N. Y. Supp. 316, rev'd 175 N. Y. 57; People v. Shannon (1903), 87 App. Div. 32, 17 N. Y. Cr. 532, 83 N. Y. Supp. 1061; People v. MeCue (1903), 87 App. Div. 72, 83 N. Y. Supp. 1088, 17 N. Y. Cr. 534; People ex rel. Sterling V. Sheriff (1908), 00 Misc. 326; People v. Ebel (1904), 93 App. Div. 270, 90 N. Y. Supp. 628; People v. Corhalis (1904), 178 N. Y. 516, rev'g 86 App. Div, 531. 83 N. Y. Supp. 782.; People v. Canepi (1905), 181 N. Y. 400, 19 N. Y. Cr. 384, rev'g 93 App. Div. 379, 87 N. Y. Supp. 773; Cranshaw v. McAiloo (1905), 47 Misc. 420, 421, 94 N. Y. Supp. 380; Matter of Cullen v. N. Y. Tel. Co. (1905), 106 App. Div. 250, 251, 94 N. Y. Supp. 290; Matter of Joerns (1900). 51 Misc. 305, 100 N. Y. Supp. 503; Stevens v. McAdoo (1900), 112 App. Div. 459, 98 N. Y. Supp. 553; Cleary v. McAdoo (1906), 113 App. Div. 179. 99 N. Y. Supp. CO; Devlin v. McAdoo (1906), 110 App. Div. 22li, 101 N. Y. Supp. 640; Murray v. Tnterurhan S'. By. Co. (1907), 118 App. D'v. 37, 102 N. Y. Supp. 1020; People ox rel. Collins v. McLaughlin (190S), 12S App. Div. (iOl, 60 Misc. 307; see also Corrigan v. Coney Island Jockey Club, 27 Abb. N. C. 300; Gibbons v. Gouverneur, 1 Den. 170. § 987. Racing animals for stake. All racing or trial of speed between horses or other animals for any bet, stalf such gaming or betting aforesaid, or lent or advanced at the time and place of such play, to any person so gaming or betting aforesaid, or to any person who, during such play, shall play or bet, shall be utterly void, except where such securities, conveyances or mortgages shall affect any real estate, when the same shall be void as to the grantee therein, so far only as here- inafter declared. When any securities, mortgages or other conveyances, executed for the whole or part of any consideration specified in the pre- 212 Art. 88J GAMBLING [§§ 994-995 ceding paragraph shall affect any real estate, they shall mure for the sole benefit of such person as would be entitled to the said real estate, if the grantor or person incumbering the same, had died, immediately upon the execution of such instrument, and shall be deemed to be taken and held to and for the use of the person who would be so entitled. All grants, covenants ar.d conveyances, for preventing such real estate from coming to, or devolving upon, the person hereby intended to enjoy the same as aforesaid, or in any way incumbering or charging the same, so as to prevent such person from enjoying the same fully and entirely, shall be deemed fraudulent and void. Derivation: 1 R. S. 663, §§ 16-17. § 994. Property staked may be recovered. Any person who shall pay, deliver or deposit any money, prop- erty or thing in action, upon the event of any wager or bet pro- hibited, may sue for and recover the same of the winner or person to whom the same shall be paid or delivered, and of the stake^ holder or other person in whose hands shall be deposited any ?uch wager, bet or stake, or any part thereof, whether the same shall have been paid over by such stakeholder or not, and whether any such wager be lost or not. Derivation: 1 B. S. 662, § 9. § 995. Losers of certain sums may recover them. Every person who shall, by playing at any game, or by betting on the sides or hands of such as do play, lose at any time or sitting, the sum or value of twenty-five dollars or upwards, and shall pay or deliver the same or any part thereof, may, within three calendar months after such payment or delivery, sue for and recover the money or value of the things so lost and paid or delivered, from the winner thereof. In case the person losing such sum or value shall not, within the time aforesaid, in good faith and without collusion, sue for the sum or value so by him lost and paid or delivered, and prose- cute such suit to effect without unreasonable delay, the overseers of the poor of the town where the offense was committed, may sue for and recover the sum or value so lost and paid, together with treble the said sum or value, from the winner thereof, for the benefit of the poor. Serivation: 1 B. S. 662-663, §§ U-15. 313 §§ 996-997] GAMBLING [Art. 88 § 996. Witnesses' privileges. 1. No person shall be cxciiscd from attending and testifying, or producing any books, papers or other docnnunts before any court or magistrate, upon any investigation, proceeding or trial, for a violation of any of the provisions of this article, npnn the ground or for the reason that the testimony or evidence, dncnnicnt- ary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture; but no pcrsson shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may so testify or produce evidence, documintary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proccedinj;. 2. Any person offending against any of the provisions cnn- tainrd in section nine hiindrrd and ninety-one of this article, who shall be admitted and examined as a witness, in any court of record, to sustain any suit or prosecution authorized by sections nine hundred and ninety-four. and nine hundred and ninety-five, may be discharged by the court from all penalties by reason of such offense, if such person has not before been convicted thereof, or of a similar offense, and if it appear to the court satisfactorily, that such person was duped or enticed into the commission of the offense, by those against whom he shall testify. DerlTation: Siibd. ], Penal Code, § 342, as amended L. 1004, cli. 640. Subd. 2, 1 R. S. (!G4, S 21. People ex rel. Lewisnhn v. O'Brien (1003). 176 N. Y. 253, aff'g 81 App. Div. 51, rev'g 3n Misc. 4fiO, 80 N. Y. Supp. 810; People ex rel. Lewisohn v. Court of Gen. Sessions (1!)04), !)G App. Div. 201, SO N. Y. Supp. 364, aff'd 179 N. Y. 594; Matter of Birdsall (1005), 49 Misc. 56, 96 N. Y. Supp. 462. § 997. Officers directed to prosecute offenses. It is the duty of all sheriffs, constables, police officers, and prosecuting or district attorneys to inform against-, and prooccure, all persons whom they have reason to believe offenders against the provisions of this article; and any omission so to do is punishable by a fine not exceeding five hundred dollars. DeriTatiomi Penal Code, t 340. 214 'Art. 901 HABITUAL CRIMINALS [§§ 1020-1022 ABTICI.E 90. HABITUAI. CBIMINALS. Section 1020. When a person may be a(ljn(?o;e(l an linlii'nni criminal. 1021. Person uf habitual criminal subject to supervision. 1022. Kil'ect of pardon of habitual criminal. § 1020. When a person may be adjudged an habitual crim- inal. Where a person is hereafter convicted of a felony, -who has bpjn, before that conviction, convicted in this state, of any other crime, or where a person is hereafter convicted of a niisdeuieanor who has been already five times convicted in this state of a raisde- mpanor, he may be adjudged by the conrt, in addition to any other punishment inflicted upon him, to be an habitual criminal. Derivation: Penal Code, g COO. People ex rel. Sloane v. Fallon (1890), 27 Misc. 10, 57 N. Y. Supp. 931, 13 N. Y. Cr. 429, 553 ; see also People v. McCarthy, 45 How. Pr. 07. § 1021. Person of habitual criminal subject to supervision. The person of an habitual criminal shall be at all times subject to the supervision of every judicial magistrate of the county, and of the supervisors and overseers of the poor of the town where the criminal may be found, to the same extent that a minor is subject to the control of his parent or guardian. Derivation: Penal Code, § CUl. § 1022. Effect of pardon of habitual criminal. The governor may grant a pardon which shall relieve from judg- ment of habitual criminality as from any other sentence; but upon a subsequent conviction for felony of a person so pardoned, a judgment of habitual criminality may be again pronounced on account of the first conviction, notwithstanding such pardon. Derivation: Penal Code, | C92. People V. Price (1890), 110 N. Y. 650, 53 Hnn, 188, (i N. Y. Supp. 833. 6 N. Y. Cr. 141; Roberts v. State (1899), 160 N. Y. 217, aff'g 30 App. Div. 106, 61 N. Y. Supp. 091. gl5 S 10301, HAZING jrArt. 92 ARTICLE 92. HAZING. Section 1030. Hazing prohibited. § 1030. Hazing prohibited. It shall be unlawful for any person to engage in or aid or al^et what is commonly called hazing, in or while attending any of the colleges, public schools or other institutions of learning in this state, and whoever participates in the same shall be deemed guilty of a misdemeanor, and upon conviction shall be fined not less than ten dollars nor more than one hundred dollars, or imprisonment not less than thirty days nor more than one year, or both, at the discretion of the court. Whenever any tattooing or permanent disfigurement of the body, limbs or features of any person may result from such hazing, by the use of nitrate of silver or any like substance, it shall be held to be a crime of the degree of mayhem, and any person guilty of the same shall, upon conviction, be punished by imprisonment for not less than three nor more than fifteen years. DerivatioB: h. 1894, ch. 265. 316 Art. 94] HOMICIDE [§§ 1040-1041 ARTICLE 94. HOMICIDE. SaonOK 1040. Common law petit treason is homicida. 1041. What proof of death is required. 1042. Homicide defined. 1043. Different kinds of homicide. 1044. Murder in first degree defined. 1045. Punishment for murder in first degree. 1046. Murder in second degree defined. 1047. Duel fought out of this state. 1048. Punishment for murder in the second degree 1049. Manslaughter defined. 1050. Manslaughter in first degree. 1051. Punishment for manslaughter in first degree. 1052. Manslaughter in second degree defined. 1053. Punishment for manslaughter in second degree. 1054. Excusable homicide. 1055. Justifiable homicide. § 1040. Common law petit treason is homicide. The rules of the common law, distinguishing the killing of a master by his servant, and of a husband by his wife, as petit treason, are abolished; and those homicides are punishable, when not justifiable or excusable, as prescribed by this chapter. DeriTAtioa: Penal Code, § 182. § 1041. What proof of death is required. No person can be convicted of murder or manslaughter unless the death of the person alleged to have been killed and the fact of killing by the defendant, as alleged, are each established as inde- pendent facts ; the former by direct proof, and the latter beyond a reasonable doubt. Derivation: Penal Code, § 181, as amended L. 1882, ch. 384. Euloff V. People (1858), 18 N. Y. 179, rev'g 3 Park, 401; People v. Schryver (1870), 42 N. Y. 1, 1 Am. Rep. 480, overruling Patterson v. People, 46 Barb. 625; People v. Bennett (1872), 49 N. Y. 137; People v. Palmer (1888), 109 N. Y. 110, rev'g 46 Hun, 479; People v. Deacons (1888), 109 N. Y. 374, 16 N. E. 676, note; People v. Beckwith (1888), 108 N. Y. 68, aff'g 46 Hun, 222, 7 N. Y. Cr. 146; People v. CNeil (1888), 109 N. Y. 251; People t. Benham (1899), 160 N. Y. 402, 14 N. Y. Cr. 207; People v. Tobin (1903), 176 N. Y. 288; People v. Egnor (1903), 175 N. Y. 430, 17 N. Y. Cr. 398; People v. 217 §§ 1042-1044] HOMICIDE [Art. 94 Patrick (1905), 182 N. Y. 131; see also People v. Badgley, 16 Wend. 53; People V. Hennessy, 15 Wend. 147; People v. Minisci, 12 N. \. St. 720; People V. Wilson, 3 Park, 199; Matthews v. State, 55 Ala. 187, 28 Am. Rep. 698; Lee V. State, 76 Ga. 498; State v. German, 54 Mo. 526, 14 Am. Eep. 481; State V. Moran (Oreg.), 14 Pac. 419; Davis Case, 3 C. H. Hec. 45. § 1042. Homicide defined. Homicide is the killing of one human being by the act, pro- curement or omission of another. Derivation: Penal Code, § 179. Fitzgerrold v. People (1868), 37 N. Y. 413, aff'g 49 Barb. 122; Buel v. People°(1870), 78 N. Y. 498, aff'g 18 Hun, 487; People v. Giblin (1889), 115 N. Y. 196, 7 N. Y. Cr. 130; People v. Greenwall (1889), 115 N. Y. 523; People V. Downs (1890), 123 N. Y. 558; People v. Young (1900), 90 App. Div. 33, 88 N. Y. Supp. 1063, 18 N. Y. Cr. 443. § 1043. DiiTerent kinds of homicide. Homicide is: 1. Murder; cr, 2. Manslaughter; or, 3. E.xcusable homicide; or, 4. Justifiable homicide. Derivation: Penal Code, § ISO. People V. Young (1904), 96 App. Div. 33, 88 N. Y. Supp. 1063, 18 N. Y. Cr. 443; Matter of Joerns (1906), 51 Misc. 396, 100 N. Y. Supp. 605. § 1044. Murder in first degree defined. The killing of a human being, unless it is excusable or justifi- able, is murder in the first degree, when committed : 1. From a deliberate and premeditated design xo effect the death of the person killed, or of another; or, 2. By an act imminently dangerous to ethers, and evincing a depraved mind, regardless of human life, although without a pre- meditated design to effect the death of any individual ; or without a design to effect death, by a person engaged in the commission of, or in an attempt to commit a felony, either upon or affecting the person killed or otherwise; or, 3. When perpetrated in committing the crime of arson in the first degree. 4. A person who wilfully, by loosenin?, removing or displacing a rail, or by any other interference, wrecks, destroys or so injures 218 Art. 94] HOMICIDE [§ 1044 any car, tender, locomotive or railway train, or part thereof, while moving upon any railway in this state, whether operated by steam, electricity or other motive power, as to thereby cause the death of a human being, is guilty of murder in the first degree, and punish- able accordingly. Derivation: Penal Code, § 183, as amended L. 1882, cli. 384, § 1; also, Penal Code, § 183a, added L. 1897, cli. 548, § 1. Stokes V. People (1873), 53 N. Y. 104; Abbott v. People (1881), 80 N. Y. 460, all'g 12 W. Dig. 282; Moett v. People (1881), 86 N. Y. 373, atr'g 23 Hun, CO; Greenfield v. People (1881), 85 N. Y. 75, 39 Am. Rep. C3fl, afl'g 23 Hun, 154; People v. Jackson (1888), 111 N. Y. 362; People v. Giblin (1889), 115 N. Y. 108, 7 N. Y. Or. 132; People v. Kelly (1889), 113 N. Y. 047, 7 N. Y. Cr. 48; People v. Carlton (1889), 115 N. Y. 618; People v. Smith (1R90), 121 N. Y. 579, aff'g 7 N. Y. Supp. 953; People v. Trezza (1890), 125 N. Y. 740; People v. Fish (1890), 125 N. Y. 136; People v. Osmond (1S93), 138 N. Y. 80; People v. Webster (1893), 68 Hun, 11, 22 N. Y. Supp. 034; People V. Johnson (1893), 139 N. Y. 358; People v. Feigenbaum (1895), 148 N. Y. 636, 12 N. Y. Cr. 65; People v. Cassata (1896), 6 App. Div. 386, 39 N. Y. Sipp. 641; People v. Scott (1897), 153 N. Y. 40, 12 N. Y. Cr. 374; People y. Futlierland (1897), 154 N. Y. 345, 12 N. Y. Cr. 495; People v. Place (1898), 157 N. Y. 584; People v. McDonald (1899), 159 N. Y. 314; People v. Ferraro (1899), 161 N. Y. 365; People v. Kennedy (1899), 159 N. Y. 346; People T. De Garmo (1902), 73 App. Div. 46, 76 N. Y. Supp. 477; People v. Flanigan (1903), 174 N. Y. 366, 17 N. Y. Cr. 312; People v. Sullivan (1903), 173 N. Y. 127; People v. Wheeler (1903), 79 App. Div. 396, 79 N. Y. Supp. 454; Petty V. Emery (1904), 98 App. Div. 33. 88 N. Y. Supp. 1063, 18 N. Y. Or. 443; People v. Summerfield (1905), 48 Jtisc. 242, 96 N. Y. Supp. 502, 19 N. V. Cr. 507; People v. Dinser (1905), 49 Misc. 82, 98 N. Y. Supp. 314; People V. Hunter (1900), 184 N. Y. 237, 20 N. Y. Cr. 37, 38; People v. Dinser (1908), J 92 N. Y. 80, aff'g 121 App. Div. 738, 106 N. Y. Supp. 495; see also People v. Lamb, 2 Abb. Pr. (N. S.) 148, 154. Snbd. 1.— People v. Clark (1852), 7 N. Y. 385; People v. Walwo.th (1873), 4 N. Y. Cr. 360; People v. Majone (1883), 91 N. Y. 211, aff'g 12 Abb. N. C. 187; People v. Cornetti (1883), 92 N. Y. 85; People v. Mangano (1883), 29 Hun, 259, 1 N. Y. Cr. 211; Leighton v. People (1882), 88 N. Y. 117, 10 Abb. N. C. 201; People v. Conroy (1884), 97 N. Y. 62, 2 N. Y. Cr. 505: People v. Beckwith (1886), 103 N. Y. 360, lOS N. Y. 67; People v. Druse (1886), 5 N. Y. Cr. 11; People v. Kiernan (1886), 4 N. Y. Cr. 88, 101 N. Y. 618; People v. Van Brunt (1888), 108 N. Y. 650; People v. Haw- kins (1888), 109 N. Y. 408; People v. Deacons (1888), 109 N. Y. 373; People V. Lewis (1889), 7 N. Y. Cr. 140; People v. Wilson (1894), 141 N. Y. 185; People V. Barberi (1890), 149 N. Y. 250; People v. Conroy (1897), 153 N. Y. 174; People v. Constantino (1897), 153 N. Y. 24; People v. Hughson (1897), 154 N. Y. 153; People v. Decker (1898), 157 N. Y. 186; People v. PuUerson (1899), 159 N. Y. 339; People v. Meyer (1900), 102 N. Y. 357; People v. Schmidt (1901 ), 108 N. Y. 568; People v. Pugh (1391), 107 N. Y. 524; Peopte V. Filipelli (1002), 173 N. Y. 509; People v. Koenig (1904), 180 N. Y. 166} 219 5§ 1045-1047] HOMICIDE [£rt. 94 People v. Eimieri (1904), 180 N. Y. 163; People v. Raffo (1904), 180 N. Y. 434; People v. Breen (1905), 181 N. Y. 493; People v. Silverman (1905), 181 N. Y. 235; People v. Nelson (1907), 189 N. Y. 137; People v. Bonier (1907), 189 N. Y. 108; People v. Wenzel (1907), 189 N. Y. 276; People v. Gillette (1908), 191 N. Y. 107; People v. Strollo (1908), 191 N. Y. 42; see also Peo- ple V. Devine, 1 Edm. Sel. Cas. 594; People v. Sullivan, 2 Edm. Sel. Cas. 277; People V. Clark, 2 Edm. Sel. Cas. 273. Snbd. 2.— People v. Gallo (1896), 149 N. Y. 106; see also People v. Hayes, 1 Edm. Sel. Cas. 582; People v. Doyle, 2 Edm. Sel. Cas. 258. Snbd. ,3. — Fitzgerrold v. People (1868), 37 N. Y. 413, aff'g 49 Barb. 122; Euloff V. People (1871), 45 N. Y. 213, aff'g 5 Lans. 261; Buel v. People (1879), 78 N. Y. 492, aff'g 18 Hun, 487; Cox v. People (1880), 80 N. Y. 602, aff'g 19 Hun, 430; People v. Cole (1883), 2 N. Y. Cr. 109: People v. Sweeney (1886), 4 N. Y. Cr. 283, 284, 41 Hun, 340; People v. Willett (1886), 102 N. Y. 251; People v. Johnson (1888), 110 N. Y. 134; People v. Greenwall (1889), 115 N. Y. 623, 7 N. Y. Cr. 299; People v. Giblin (1889), 115 N. Y. 196, 7 N. Y. Cr. 130; People v. Pallister (1893), 138 N. Y. 601; People v. Miles (1894), 143 N. Y. 383; People v. Meyer (1900), 162 N. Y. 357; Peoplev. Wise (1900), 163 N. Y. 440; People v. Sullivan (1902), 173 N. Y. 122; 17 N. Y. Cr. 180; People v. Young (1903), 40 Misc.' 256, 81 N. Y. Supp. 967; People v. Flani- gan (1903), 174 N. Y. 357; People v. Dankberg (1904), 91 App. Div. 67, 86 N. Y. Supp. 423; People v. Huter (1906), 184 N. Y. 237. Snbd. 4.— People v. Greenwall, 115 N. Y. 524, 7 N. Y. Cr. 310. § 1045. Punishment JEor, murder in first degree. Murder in the first degree is punishable by deatL DeriTation: Penal Code, § 186. § 1046. Murder in second degree defined. Such killing of a human being is murder in the second degree, when committed with a design to effect the death of the person killed, or of another, but without deliberation and premeditation. DeriTation: Penal Code, § 184. People V. Walworth (1873), 4 N. Y. Cr. 355; MoKenna v. People (1880), 81 N. Y. 360, rev'g 18 Hun, 580; People v. Donovan (1885), 3 N. Y. Cr. 79; People V. Hill (1888), 49 Hun, 434. 3 N. Y. Supp. 564; People v. Hoch (1896), 150 N. Y. 293; People v. Martin (1898), 33 App, Div. 282, 63 N. Y. Supp. 745; People v. Sullivan (1903), 173 N. Y. 122, 130; People v. Young (1904), 96 App. Div. 33, 88 N. Y. Supp. 1063; Petty v. Emery (1904), 96 App. Div. 35, 88 N. Y. Supp. 1063, 18 N. Y. Cr. 443; People v. Dinser (1908), 192 N. Y. 80, aff'g 121 App. Div. 738, 106 N. Y. Supp. 495; see also People T. Sheriff of Westchester, 1 Park, 659; People v. Skeehan, 49 Barb. 217. § 1047. Duel fought out of this state. A person who, by previous appointment made within the state, 220 Art 94] HOMICIDE [§§ 1048-1050 tights a duel without the state, and in so doing inflicts a wound upon his antagonist, whereof the person injured dies; or who en- gages or participates in such a duel, as a second or assistant to either party, is guilty of murder in the second degree, and may be indicted, tried and convicted in any county of this state. Derivation: Penal Code, § 185. People V. Rochester Ey. & Light Co. (1908), 59 Misc. 351, 112 N. Y. Supp. 362. § 1048. Punishment for murder in the second degree. Murder in the second degree is punishable by imprisonment under an indeterminate sentence, the minimum of which shall be twenty years and the maximum of which shall be for the offender's natural life; and any person serving a term of imprisonment for life, under an original sentence for murder in the second degree, on the first day of September, nineteen hundred and seven, shall be deemed to be thereafter serving under such an indeterminate sentence. Derivation: Penal Code, § 187, as amended L. 1907, ch. 738. § 1049. Manslaughter defined. In a case other than one of those specified in sections ten hun- dred and forty-four, ten hundred and forty-six and ten hundred and forty-seven, homicide, not being justifiable or excusable, is manslaughter. Derivation: Penal Code, § 188. People v. Sullivan (1852), 7 N. Y. 396; Evans v. People (1872), 49 N. Y. 86; People v. Cole (1883), 2 N. Y. Cr. 108; People v. Beckwith (1886), 103 N. Y. 360, 5 N. Y. Cr. 228; People v. McCarthy (1888), 110 N. Y. 310, aff'g 47 Hun, 491; People v. Hill (1888), 49 Hun, 432, 3 N. Y. Supp. 564; see also People V. Austin, 1 Park. 291; Beale's Case, 6 City Hall Rec. 59; People v. Butler, 3 Park, 377 ; People v. Cole, 4 Park, 35 ; People v. Devine, 1 Edm. Sel. Cas. 594; People v. Fitzsimmons, 34 N. Y. Supp. 1102; People v. Fuller, 2 Park, 16; Gtoodwin's Case, 5 City Hall Rec. 52; Goodwin's Case, 6 City Hall Eec. 9; People v. Hammill, 2 Park, 223; McCann v. People, 6 Park, 629; Pat- terson's Case, 3 City Hall Rec. 145; People v. Ryan, 2 Wheel. Cr. Cas. 47; People V. Tannan, 4 Park, 514; People v. Waltz, 50 How. Pr. 204; Wilson v. People, 4 Park, 619. § 1050. Manslaughter in first degree. Such homicide is manslaughter in the first degree, when com- mitted without a design to effect death : 1. By a person engaged in committing, or attempting to oom- 221 § 1051] HOMICIDE [Art. 94 mit, a misdemeanor, affecting the person or property, either of th» person killed, or of another ; or, 2. In the heat of passion, bnt in a cruel and unusual maimer, or by means of a dangerous weapon. The wilful killing of an unborn quick child, by any injury com- mitted upon the person of the mother of such child, is manslaughter in the first degree. A person who provides, supplies, or administers to a woman, whether pregnant or not, or who prescribes for, or advises or pro- cures a woman to take any medicine, drug, or substance, or who uses or employs, or causes to be used or employed, any instrument or other means, with intent thereby to procure the miscarriage of a woman, unless the same is necessary to preserve her life, in case the death of the woman, or of any quick child of which she is pregnant, is thereby produced, is guilty of manslaughter in the first degree. Derivation: Penal Code, S§ 189-101. Lohman v. People (1848), 1 N. Y. 370, 2 Barb. 216; People v. Sullivan (1852), 7 N. y. 390; Darry v. People (1854), 10 N. Y. 120, 2 Park, 608; Evans v. People (1872), 40 N. Y. 80; Bnel v. People (1879), 78 N. Y. 402, 500, aff'g 18 Hun, 487; People v. Rego (1885), 36 Hun, 129, 3 N. Y. Cr. 270; People V. Carlton (1889), 115 N. Y. 618; People v. Webster (1803), 68 Hun, 11, 22 N. Y. Supp. 634; People v. Maine (1000), 51 App Div. 142, 64 N. Y. Supp. 579, lev'd 1C6 N. Y. 50; People v. Van De Garmo (1902), 73 App. Div. 40, 10 N. Y. Cr. 530, 70 N. Y. Supp. 447; People v. Sullivan (1903), 123 N. Y. 122, 130; People v. Flanigan (1903), 174 N. Y. 368, 17 N. Y. Cr. 312; Petty V. Emery (1904), 96 App. Div. 35, 88 N. Y. Supp. 823; People v. Stacy (1905), 119 App. Div. 743, 104 N. Y. Supp. 615, 21 N. Y. Cr. 215; People v. Huson (1906), 187 N. Y. 97, rev'g 114 App. Div. 693, 99 N. Y. Supp. 1081, 20 N. Y. Cr. 338; People v. Mallon (1907), 189 N. Y. 520, aff'g 116 App. Div. 425, 101 N. Y. Supp. 814; People v. Granger (1007), 187 N. Y. 67; People v. Van Gaasbeck (1907), 118 App. Div. 511, 103 N. Y. Supp. 249; People V. Weick (1908), 123 App. Div. 328, iJ7 N. Y. Supp. 968; see also People V. Butler, 3 Park, 377; People v. Cole, 4 Park, 35; Foster v. People, 60 Park, 598; People v. Hammill, 2 Park, 223; People v. Jolinson, 2 Park, 291; McCann v. People, 6 Park, 029; People v. McGonegal, 17 N. Y. Supp. 148; Patterson's Case, 3 City Hall Rec. 145; People v. Rector, 19 Wend. 509; People V. Sheriff, etc., 1 Park. 059; People v. Stockham, 1 Park, 424. § 1051. Punishment for manslaughter in first degree. Jfanslaughter in the first degree is punishable by imprisonment, for a terra not exceeding twenty years. Derivation: Penal Code, § 192, as amended L. 1802, eh. 682, § 3. People V. Hudson (1007), 187 N. Y ^00. 222 Art. 94] HOMICIDE [§ 1052 § 1052. Manslaughter in second degree defined. Such homicide is manslaughter in the second degree, when com- mitted without a design to eilect death: 1. Ey a person committing or attempting to commit a trespass, or other invasion of a private right, either of the person liilled, or of another, not amounting to a crime ; or, 2. In the heat of passion, but not by a dangerous weapon or by the use of means either cruel or unusual ; or, 3. By any act, procurement or culpable negligence of any per- son, which, according to the provisions of this article, does not constitute the crime of murder in the first or second degree, nor manslaughter in the first degree. Woman producing miscarriage. — A woman quick with child, who takes or uses, or submits to the use of any drug, medicine, or substance, or any instrument or other means with intent to produce her own miscarriage, unless the same is necessary to preserve her own life, or that of the child whereof she is pregnant, if the deaih of such child is thereby produced is guilty of manslaughter in the second degree. Negligent use of machinery. — A person who, by any act of negli- gence or misconduct in a business or employment in which he is engaged, or in the use or management of any machinery, animals, or property of any kind, intrusted to his care, or under his control, or by any unlawful, negligent or reckless act, not specified by or coming within the foregoing provisions of this article, or the pro- visions of some other statute, occasions the death of a human being, is guilty of manslaughter in the second drgree. Mischievous animals. — If the owner of a mischievous animal, knowing its propensities, wilfully suffers it to go at large, or keeps it without ordinary care, and the animal, while so at large, and not confined, kills a human being, who has taken all the pre- cautions which the circumstances pennitted, to avoid the animal, the owner is guilty of manslaughter in the second degree. Overloading passenger vessel. — A person navigating a vessel for gain, who wilfully or negligently receives so many passengers or such a quantity of other lading on board the vessel, that, bv ire"n8 thereof, the vessel sinks, or is overset or injured, and Ihevrby a human being is drowned, or otherwise killed, is guilty of man- slauffhter in the second degree. Persons in charge of steamboats. — A person having cbare'p of a steamboat used for the conveyance of passengers, or of a boiler 16 § 1052] HOMICIDE [Art. 94 OT engine thereof, who, from ignorance, recklessness, or gross neglect, or for the purpose of excelling any other boat in speed, creates, or allows to be created, such an undue quantity of steam as to burst the boiler, or other apparatus in which it is generated or contained, or to break any apparatus or machinery connected therewith, whereby the death of a human being is occasioned, is guilty of manslaughter in the second degree. Persons in charge of steam engines. — ^An engineer or other person, having charge of a steam boiler, steam engine, or other apparatus for generating or applying steam, employed in a boat or railway, or in a manufactory, or in any mechanical works, who wilfully, or from ignorance or gross neglect, creates or allows to be created, such an undue quantity of steam as to burst the boiler, engine or apparatus, or to cause any other accident, whereby the death of a human being is produced, is guilty of manslaughter in the second degree. Acts of physicians while intoxicated. — A physician or surgeon, or person practicing as such, who, being in a state of intoxicatioii, without a design to effect death, administers a poisonous drug or medicine, or does any other act as a physician or surgeon, to an- other person, which produces the death of the latter, is guilty of manslaughter in the second degree. Persons making or keeping gunpowder contrary to law. — A person who makes or keeps gunpowder or any other explosive substance within a city or village, in any quantity or maiiTipr prohibited by law, or by ordinance of the city or village, if any explosion thereof occurs, whereby the death of a human being is occasioned, is guilty of manslaughter in the second degree. Derivation: Penal Code, § 193, subd. 2, as amended L. 1887, ch. 23, § Ij also. Penal Code, § 194-201. People V. Melius (1882), 1 N. Y. Cr. 39; People v. Rego (1885), 36 Hun, 129, 3 N. Y. Cr. 275; People v. Buddensieck (1886), 103 N. Y. 490, 5 N. Y. Cr, 69; People v. McCarthy (1888), 47 Hun, 491; People v. Welch (1894), 141 N. Y. 266, 24 L. R. A. 117, aff'g 74 Hun, 474, 26 N. Y. Supp. 694; People V. Maine (1901), 166 N. Y. 50, rev'g 51 App. Div. 142, 64 N. Y. Supp. 579; People V. Wheeler (1903), 79 App. Div. 396, 79 N. Y. Supp. 454; Prttv v. Emery (1904), 96 App. Div. 35, 88 N. Y. Supp. 823; People v. Young (1904), 96 App. Div. 33, 88 N. Y. Supp. 823; People v. Taylor (1904), 92 App. Div. 29, 86 N. Y. Supp. 996; People v. Quimby (1906), 113 App. Div. 793, 99 N. Y. Supp. 330. 224 Art. 94] HOMICIDE [§§ 1053-1055 § 1053. Punishment for manslaughter in second degree. Manslaughter in the second degree is punishable by imprison- ment for a term not exceeding fifteen years, or by a fine ol not more than one thousand dollars, or by both. Derivation: Penal C!ode, § 202, aa amended L. 1892, ch. 662. § 1054. Excusable homicide. Homicide is excusable when committed by accident and mis- fortune, in lawfully correcting a child or servant, or in doing any other lawful act, by lawful means, with ordinary caution, aui without any unlawful intent. Derivation: Penal Code, § 203. People V. Carlton (1889), 115 N. Y. 618; People v. O'Connor (1903), 82 App. Div. 55, 81 N. Y. Supp. 555; People v. Dankberg (1904), 91 App. Div. 67, 86 N. Y. Supp. 423. § 1055. Justifiable homicide. Homicide is justifiable when committed by a public officer, or a person acting by his command and in his aid and assistance : 1. In obedience to the judgment of a competent Cuurt; or^ 2. Necessarily, in overcoming actual resistance to the execution of the legal process, mandate or order of a court or officer, or in the discharge of a legal duty ; or, 3. Necessarily, in retaking a prisoner who has committed, or has been arrested for, or convicted of a felony, and who has escaped or has been rescued, or in arresting a person who has committed a felony and is fleeing from justice; or in attempting by lawful ways and means to apprehend a person for a felony actually com- mitted, or in lawfully suppressing a riot, or in lawfully preserving the peace. Homicide is also justifiable when committed : 1. In the lawful defense of the slayer, or of his or her husband, wife, parent, child, brother, sister, master or servant, or of any other person in his presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony, or to do some great personal injury to the slayer, or to any such person, and there is imminent danger of such de- sign being accomplished ; or, 2. In the actual resistence of an attempt to commit a felony 225 § 1055] HOMICIDE [Art. 94 upon the slayer, in his presence, or upon or in a dwelling or other place of abode in which he is. Derivation: Penal Code, §§ 204-205. People V. Sullivan (1852), 7 N. Y. 30G; People v. Walworth (1873), 4 N. y. Cr. 355: People v. Carlton (1889), 115 N. Y. 618; People v. Downs (1890), 123 N. Y. 558; People v. Hess (1896), 8 App. Div. 143, 40 N. Y. Supp. 486; People V. Cantor (1902), 71 App. Div. 185, 16 N. Y. Cr. 375, 75 N. Y. Supp. 688; People v. O'Connor (1903), 82 App. Div. 55, 81 N. Y. Supp. 555; People V. Rodawald (1904), 177 N. Y. 423, 18 N. Y. Cr. 104; People v. Weaver (1904), 177 N. Y. 434. 18 N. Y. Cr. 189; People v. Dankber^ (1904), 91 App, Div. 07, 80 N. Y. Supp. 423; People v. Ee?.in (1905), 107 App. Div. 608, 94 N. Y Snpp. 841; Masar v. Hammond (1900), 183 N. Y. 390; People v. Governale (1908), 193 N. Y. 587; People v. Jeina (1908), 125 App. Div. 700, 110 N. Y. Supp. 83; People v. Fieri (1008), 123 App. Div. 174, 108 N. Y. Supp. 416. Art. 9G] nORSE RACING [§§ 1080-1081 ARTICLE 93. HORSE RACING. Section 1080. Racing near a court-house. 1082. Fraudulent entries and practices in contosts of ptippA. 1082. Fraudulent entries and practices in contests of speed. § 1080. Racing near a court-house. A person concerned in any racing, running or other trial of speed between horses or other animals, within one mile of the place where a court is actually sitting, is guilty of a misdemeanor ; and it shall not be lawful for any person, association, corporation or copartnership to build, maintain or operate any race track within four miles of any court-house situated in a county adjoining a city of the first class which by the last state enumeration contained not more than seventy-two thousand inhabitants and not less than sixty-eight thousand inhabitants; but nothing in this section shall apply to or affect trials of speed between horses or other animals iipon the groimds of a county agricultural society during the days on which the fairs of such society are held, nor apply to or affect the maintenance and operation of any race track upon which races were conducted in the year nineteen hundred and five under the license of the state racing commission. DerlTatiom: Fenal Code, § 147, as amended L. 1900, cli. 100; L. 1000, eh. 353. § 1081. Fraudulent entires and practices in contests of speed. Any person who: 1. Knowingly enters for competition, or furnishes to another person for entry or competition, or brings into this state for entry or competition for any purse, prize, premium, stake or sweepstakes offered or established by any person, association or corportuinn, any nmning, trotting or pacing horse, mare, gelding, colt or filly under an assumed name, or out of its proper class, or that has been painted or disguised or represented to be any other or different horse, mare, gelding, colt or filly from the one which is purported to be entered where such prize, purse, premium, stake or sweep- stakes is to be decided by a contest of speed ; or, 2. Being the owner, trainer, or other person having the control 387 § 1082] HOKSE KACING [Art. 96 of the racing qualities of any running, trotting or pacing horse, mare, gelding, colt or filly, knowingly allows the same to compete for any such prize, purse, premium, stake or sweepstakes under an assumed name, or out of its proper class, or as any other or different horse, mare, gelding, colt or filly than the one it actually is; or, 3. In any competition for any such purse, prize, premium, stake or sweepstakes, knowingly drives any trotting or pacing horse, mare, gelding, colt or filly which has been entered under an as- sumed name, or out of its proper class or which has been painted or disguised, or represented to be any other or different horse, mare, gelding, colt or filly than the one it actually is. Shall be guilty of a misdemeanor, punishable by a fine of not less than five hundred nor more than fifteen hundred dollars, or by imprisonment for not more than one year, or both. The true name and age, and also the pedigree, unless such pedi- gree is unknown, of every such animal shall be registered with the jockey club before it shall be eligible to compete in any such race conducted under the license of the state racing commission; and such name shall continue to be its true name unless and until the same shall be changed according to the rules and regulations of such jockey club. Any person who shall knowingly cause or procure or aid in any false registration under this' section shall be guilty of a misdemeanor, and upon conviction shall be punished aa hereinabove provided. The class to which any such animal be- longs for the purpose of the entry or competition in any other race shall be determined by the public performance thereof in former contests or trials of speed, as provided by the printed rules of the person, association or corporation under which the proposed contest is advertised to be conducted. DeriTBtioa: Penal Code, § 384-0, added L. 1898, ch. 394, | 1; amended L. 1906, ch. 454. § 1082. Fraudulent entries and practices in contests of speed. 1. It is hereby made unlawful for any person or persons know- ingly to enter or cause to be entered for competition or to compete for any purse, prize, premium, stake or sweepstakes offered or given by any agricultural or other society, association, or person or persons in the state of New York or to drive any horse, mare or gelding, oolt or filly under an assumed name, or out of its proper 228 Art 96] HORSE RACING {§ 1082 class, where such prize, purse, premium, stake or sweepstakes is to be decided by a conteat of speed. 2. Any person or persons found guilty of a violation of sub- division one of this section shall upon conviction thereof be im- prisoned in the state prison for a period of not more than three years, or by imprisonment in the county jail of the county in which he is convicted for a definite period of not more than one year or shall be fined in a sum not exceeding one thousand dollars, and one-half of such fine shall be paid to the society or association upon whose grounds such offense shall be committed. 3. The name of any horse for the purpose of entry for compe- tition in any contest of speed shall not be changed after once having contested for a prize, purse, premium, stake or sweepstake, except as provided by the code of printed rules of the society or associa- tion under which the contest is advertised to be conducted. 4. The class to which a horse belongs for the purpose of an entry in any such contest of speed shall be determined by the public performance of said horse in any former contest or trial of speed, as provided by the printed rules of the society or associa- tion under which the proposed contest is advertised to be con- ducted, and any person or persons knowingly misrepresenting or fraudulently concealing the result of the public performance in any former contest of speed of any horse which he or they propose to enter for competition in any such contest, shall, upon conviction thereof, be liable to the same punishment as is provided in sub- division tvo of this section, whether he or they shall succeed in making such entry or not. DeriratioB: L. 1893, ch. 296. §§ 1090-1092] HUSBAND AND WIFE [Art. 98 ARTICLE 98. HTTSBAND AND WIFE. Section lOflO. Compulsory prostitution of wife. lOUl. Wife a competent witness. 1092. Presence of husband no defense. § 1030. Compulsory prostitution of wife. Any man who by force, fraud, intimidation or threats, places or leaves, or procures any other person to place or leave, his wife in a house of prostitution, or to lead a life of prostitution, shall be guilty of a felony and upon conviction thereof shall be im- prisoned for not more than ten years. DeriTation: Penal Code, § 282b, in part, as added L. lOOG, eh. 133, § 1. For remainder of section, see § 1091, post. § 1091. Wife a competent witness. In all prosecutions under the previous section, the wife shall be a competent witness against the husband, but no conviction under this article shall be had upon the testimony of the wife un- supported by other evidence. Derivation: Penal Code, § 282b, in part, as added L. 190C, eh. 138, { 1. For remainder of section, see § 1090, ante. § 1092. Presence of husband no defense. It is not a defense, to a married woman charged with crime, that the alleged criminal act was committed by her in the presence of her husband. Derivation: Penal Code, § 24. Ori);ina1ly Penal Law, f 1460; renum- bered § 1002 by L. 1909, ch. 524. In effect May 27, 1909. Seller v. People (1879), 77 N. Y. 411; Goldstein v. People (1880), 82 N. Y. 231; People v. Eyland (1884), 97 N. Y. 12B, 28 Hun, 508; see also Bnyd's Case, 3 C. H. Rec. 134; Bra.idon'8 Case, 4 C. H. Rec. 140; Brown's Case, J C. II. Rec. 86; Goodman's Case, 6 C. H. Rec. 21; Quinlan v. People, Parle, 0; Rooney's Case, 3 C. H. Rec. 126; People t. Townwnd, 3 Hill, 479. as'j Art 100] ICE [§ 1100 AHTICIii: 100. ICE. Section 1100. Cutting ice in front of premises of another. § 1100. Cutting ice in front of premises of another. 1. A person who takes possession of or cuts ice in front of the lands of another on any .water except lakes, ponds, the Hudson and Mohawk rivers and the tide waters of Eoudout and Catskill creeks, between the center of such body of water and such lands, after the owner or occupant has posted in a conspicuoiis manner upon such lands near the banks of such waters a written or printed notice of his desire to cut ice in front of such lands ; or, 2. Trespasses upon or takes such ice or any part thereof for commercial purposes ; or, 3. Willfully removes any such notice, Is guilty of a misdemeanor. DerlvaUoa: Penal Code, { C40c, added L. 1803. eh. 092, t 2. § 1110] INCEST [Art. 102 ARTICLE 102. IDTCBST. Section 1110. Incest. § 1110. Incest. "When persons, within the degrees of consangninitj, within which marriages are declared by law to be incestuous and void, intermarry or commit adultery or fornication with each other, each of them is punishable by imprisonment for not more than ten years. DerlTBtion: Penal Code, ! 302. People V. Vedder (1885), 98 N. Y. 630; People t. Powell (1886), 4 N. Y. Ct. 586; People v. Lake (1888), 110 N. Y. 61, 6 Am. St. Rap. 344; Weisberg ▼. Weisberg (1906), 112 App. Div. 231, 98 N. Y. Supp. 260; People v. Block (1907), 120 App. Div. 364; see also People v. Harriden, 1 Park, 344; People V. Murray, 14 Cal. 159; Cook v. State, 11 Ga. 63; StaU v. Markins, 95 Ind. 464, 48 Am. Rep. 733, citing 2 Greenl. Ev., sec. 47; Whart. Grim. Ev., sec. 36; State V. Thomas, 53 Iowa, 214; Chancellor v. State, 47 Miss. 278; State v. Ellis, 74 Mo. 385, 41 Am. Rep. 321; Howard v. State, 11 Ohio, 328; Noble T. State, 22 Ohio St. 541; State t. Brown, 47 Ohio St. 102, 21 Am. St. Rep. 790; Freeman v. State, 11 Tex. Ct. App. 92, 40 Am. Rep. 787; Johnson T. State, 20 Tex. App. 609, 54 Am. Rep. 535; Compton v. State, 13 Tex. \A. App. 271, 44 Am. Rep. 703; State v. Wegman, 59 Vt. 527, 69 Am. Rep. 76S; Com. t. Goodhue, 2 Mete. 193; U. S. t. Hiler, 1 Morris, 330. 233 Art. 104] INCOMPETENT PEESONS [§1120 ARTICLE 104. INCOMPETENT PERSONS. Section 1120. Irresponsibility of idiot or lunatic. 1121. Unlawful .confinement of idiots, lunatics and insane persons, 1122. Maintaining private insane asylums. 1123. Injuring life or health of incompetent persons. § 1120. Irresponsibilty of idiot or lunatic. An act done by a person who is an idiot, imbecile, lunatic or insane is not a crime. A person can not be tried, sentenced to any punishment or punished for a crime while he is in a state of idiocy, imbecility, lunacy or insanity so as to be incapable of understanding the proceeding or making his defense. A person is not excused from criminal liability as an idiot, imbecile, lunatic, or insane person, except upon proof that, at the time of committing the alleged criminal act, he was laboring under such a defect of reason as: 1. Not to know the nature and quality of the act he was doing ; or, 2. Not to know that the act was wrong. DeriTstiont Fenal Code, §§ 20, 21, as amended L. 1882, ch. 384, J 1, Dewitt T. Bailey (1858), 17 N. Y. 348; Walter v. People (1865), 32 N. Y. 147, aff'd 6 Park, 15, 18 Abb. 147; Willis v. People (1865), 32 N. Y. 715, 6 Park, 621; Clapp v. FuUerton (1866), 34 N. Y. 190; O'Brien t. People (1867), 48 Barb, 274, aflf'g 36 N. Y. 276; People V. Schruy. ver (1870), 42 N. Y. 1; Real v. People (1870), 42 N. Y. 270, 8 Abb. Pr. (N. 8.) 814, 65 Barb. 651; People v. Walworth (1873), 4 N. Y. Cr. 355; Brother- ton V. People (1878), 75 N. Y. 159, aflf'g 14 Hun, 486; People v. Moett (1880), 23 Hun, 60; People v. Coleman (1881), 1 N. Y. Cr. 1; O'Connell t. People (1882), 87 N. Y. 377, 62 How. 436, 41 Am. Rep. 379; Sindram r. People (1882), 88 N. Y. 196, aff'g 1 N. Y. Cr. 448; Walsh v. People (1882), 88 N. Y. 458; Walker t. People (1882), 88 N. Y. 86, 1 N. Y. Cr. 27, aflf'g 26 Hun, 67; Casey t. People (1883), 31 Hun, 158, 2 N. Y. Cr. 187; Flanagan v. People (1883), 62 N. Y. 467; People v. Mills (1885), 98 N. Y. 176; People >•. Murphy (1886), 101 N. Y. 126; People v. Carpenter (1886), 102 N. Y. 250, 4 N. Y. Cr. 187, aff'g 38 Hun, 490; People t. Hawkins (1888), 109 N. Y. 408; People T. Barber (1889), 115 N. Y. 475; People v. Packenham (1889), 116 N. y. 200; People v. McElvaine (1890), 126 N. Y. 600, aff'd 142 U. S. 66; People V. McElvaine (1890), 121 N. Y. 266; Eemmler's Case (1890), 119 N. T. 580; People t. Foy (1893), 138 N. Y. 664; People v. Taylor (1893), 138 N. Y. 398; People ▼. Strait (1896), 148 N. Y. 666, 12 N. Y. Cr. 146; People V. Barber! (1896), 149 N. Y. 266, 12 N. Y. Cr. 210; People t. Youngs (1896), § 1121] ^COMPETENT PEKSONS [Art. 104 151 N. Y. 210; People v. Nino (180C), 1-19 N. Y. 318, 12 N. Y. Cr. 228; People V. Kerns (180G), 7 App. Div. 535, 40 N. Y. Supp. 243; People v. Hocli (1800), 150 N. Y. 292, 11 N. Y. Cr. 488; People v. Burgess (1807), 153 N. Y. 50!), 12 N. Y. Cr. 450; People v. Koerner (1807), 154 N. Y. 355; People v. Ferraro (1899), 151 N. Y. 377, 14 N. Y. Cr. 200; People v. Krist (1901), 108 N. Y. 19, 15 N. Y. Cr. 542; People v. Egnor (1003), 175 N. Y. 429, 17 N. Y. Cr. 398; People v. Silverman (1905), 181 N. Y. 230, 19 N. Y. Cr. 300; People r. Pekartz (190G), 185 N. Y. 470, 20 N. Y^. Cr. 109; People v. Furlong (19U7), 187 N. Y. 198, 20 N. Y. Cr. 497; People v. Koener (1907), 117 App. Div. 49, 102 N. Y. Supp. 03, 20 N. Y. Cr. 520, afl'd 191 N. Y. 528; see also People v. Beno Ville, 3 Abb. N. C. 195; People v. Carnell, 2 Edm. Sul. Cas. 200; Clark's Case, 1 C. II. Rec. 176; Cole's Case, 7 Abb. Pr. (N. S.) 321; People v. Devine, 1 Kdm. Sel. Cas. 594; Jenisch's Case, 3 Abb. N. C. 200; People v. Kleine, I Edm. Sel. Cas. 13; McFarland Trial, 8 Abb. Pr. (N. S.) 57; People v. Mon^ gomery, 13 Abb. Pr. (N. S.) 207; Patterson v. People, 40 Barb. 625; Pierro- vis' Case, 3 C. H. Rec. 123; People v. Pine, 2 Barb. 500; Sanchez *. People, 4 Park, 535, 18 How. 72, 22 N. Y. 147; Krom v. Slioonmaker, 3 Barb. 407; People V. Sprague, 2 Park, 43; Stauderman's Case, 3 Abb. N. C. 187; Wagner V. People, 2 Keyes, 684, 4 Abb. Dec. 509; People v. Waltz, 50 How. Pr. 204, 3 Abb. N. C. 209; Parsons v. State, 81 Ala. 577, 60 Am. Rep. 193, 30 Alb. L. J. 249; Boswell v. State, 03 Ala. 307, 35 Am. Rep. 20, 2 Crim. L. Mag. 32; People V. Kerrigan, 73 Cal. 222; People v. Hoin, 62 Cal. 120, 45 Am. Rep. 651; Kearney v. People, U Col. 258; State v. Hoyt, 46 Conn. 330; Cliarci v. State, 31 Ga. 424; Uacey v. People, UG 111. 555; Wartina v. State, 105 Ind. 445; Conway v. State, US Ind. 482, 11 Crim. L. Mag. 640; State v. Mowry, 37 Kan. 309; State v. Lawrence, 67 Me. 674; Cunningham v. State, SO Mlas. 200, 31 Am. Rep. 300; Anderson v. State, 25 Nebr. 550; State v. Jones, 50 N. H. 300; Peacock v. State, 60 N. J. L. 34; State v. Potts, 100 N. C. 4S7; S'ate V. Murray, 11 Oreg. 413; State t. Bundy, 24 S. C. 439, 58 Am. Rep. 202; Erwin v. State, 10 Tex. App. 7C0; Willis v. Com. (Va.), 22 Alb. L. J. 170; Guiteau's Case, 10 Fed. 101, 4 Crim. L. Mag;. 586) Guiteau's Case, 3 Crim. L. Mag. 358; United States v. Faulkner, 35 Fed. 730; United States t. Young, 7 Crim. L. Mag. 732; State v. Lewis, 12 Crim. L. Mag. 72, 85; Reg. v. Davis, 14 Cox Cr. Cas. 563, 28 Eng. Rep. 657; Boiling V. State, 16 S. W. 658. § 1121. Unlawful confinement of idiots, lunatics and insane persons. A pereon, who confines an idiot, lunatic or insane person, in any other manner or in any other place than as authorized by law, and a person guilty of harsh, cruel or unkind treatment of, or any neglect of duty towards, any idiot, lunatic or insane per- son under confinement, whether lawfully or unlawfully confined, is guilty of a misdemeanor. Derlvatloai Penal Code, f 37T. C34 Art. 104] INCOMPETENT PERSONS. [§ 1122, 1123 § 1122. Maintaining private insane asylums. A person who conducts or maintains a private insane asylum, or institution for the care or treatment or persons of unsound mind, without a license issued and granted to such person accord- ing to law, is guilty of a misdemeanor. Derivaticn: Penal Code, § 445. § 1123. Injuring liie or health of incompetent persons. A person who : 1. T7ilfully causes or permits the life or limb of any person, iwho is, from any cause, incompetent to care for himself, to be endangered or his health to be injured, or 2. YTilfully is guilty of harsh, cruel or unkind treatment of, or any neglect of duty towards any person who is from aiiy cause incompetent to care for himself. Is guilty of a misdemeanor. (Added by L. 1921, ch. 427, in effect Sept. 1, 1921.) 235 1140-1140-a] INDECENOiY [Art. 106 ARTICLE 106. INDECElfCT. SaonoN 1140. Exposure of person. 1140-a. Immoral plays and exhibitions and the use and leasing of real property therefor. 1141. Obscene prints and articles. 1141-a. Indecent prints and pictures in public places. 1142. Indecent articles. 1142-a. Advertisements relating to certain dii6eases prohibited. 1143. Mailing or carrying obscene prints and articles. 1144. Warrant to sheriff to search. 1145. Physicians' insitrumenta. 1146. Keeping disorderly houses. 1147. Who may arrest persons violating provisions of this article. I § 1140. Exposure of person. A person who willfully and lewdly exposes his person, or the private parts thereof, in any public place, or in any place where others are present, or procures another so to expose himself, is guilty of a misdemeanor. SeriTation: Penal Code, § 316. i People ex rel. Lee v. Bixby (1875), 4 Hun, 636, 67 Barb. 221; People ex rel. Ryan v. Webster (1895), 86 Hun, 69, 33 N. Y. Supp. 337; People ex rel. Campbell v. Comrs. (1897), 13 App. Div. 69, 43 N. Y. Supp. 118; see also Miller v. People, 5 Barb. 203; Com. v. Wardell, 128 Mass. 52, 35 Am. Rep. 357; Van Houten v. State, 46 N. J. L. 16, 50 Am. Rep. 397; R. v. Holmes, 1 Dears. C. C. 207; R. v. Thallman, L. 4 C. 326, 9 Cox Cr. Cas. 388; Reg. V. Willard, 15 Cox C. Cas. 559, 36 Eng. Rep. 610. § 1140-a. [Added, igog.] Immoral plays and exhibitions and the use and leasing of real property therefor. Any person who as owner, manager, director or agent or in any other capacity prepares, advertises, gives, presents or participates in, any obscene, indecent, immoral or impure drama, play, ex- hibition, show or entertainment, which would tend to the cor- ruption of the morals of youth or others, and every person aiding or abetting such act, and every owner or lessee or manager of any garden, building, room, place or structure, who leases or lets the same or permits the same to be used for the purposes of any such drama, play, exhibition, show or entertainment, knowinajly, or who assents to the use of the same for any such purpose, shall be guilty of a misdemeanor. • Added by L. 1909, ch. 279. In effect Sept. 1, 1909. 236 Art. 106] INDECENCY [§ 1141 § 1141. Obscene prints and articles. 1. A person who sells, lends, gives away or shows, or offers to sell, lend, give away, or show, or has in his possession with intent to sell, lend or give away, or to show, or advertises in any manner, or who otherwise offers for loan, gift, sale or distribution, any obscene, lewd, lascivious, filthy, indecent or disgusting book, magazine, pamphlet, newspaper, story paper, writing paper, pic- ture, drawing, photograph, figure or image, or any written or printed matter of an indecent character ; or any article or instru- ment of indecent or immoral use, or purporting to be for inde^ cent or immoral use or purpose, or who designs, copies, draws, photographs, prints, utters, publishes, or in any manner manu- factures, or prepatres any such book, picture, drawing, magazine, pamphlet, newspaper, story paper, writing, paper, figure, image, matter, article or thing, or who writes, prints, publishes, or utters, or causes to be written, printed, published, or uttered any ad- vertisement or notice of any kind, giving information, directly or indirectly, stating, or purporting so to do, where, how, of whom, or by what means any, or what purports to be any, obscene, lewd, lascivious, filthy, disgusting or indecc.it book, picture, writ- ing, paper, figure, image, matter, article or thing, named in this section can be purchased, obtained or had or who has in his pos- session, any slot machine or other mechanical contrivance with moving pictures of nude or partly denuded female figures which pictures are lewd, obscene, indecent or immoral, or other lewd, obscene, indecent or immoral drawing, image, article or object, or who shows, advertises or exhibits the same, or causes the same to be shown, advertised, or exhibited, or who buys, owns or holds any such machine with the intent to show, advertise or in any manner exhibit the same; or who, 2. Prints, utters, publishes, sells, lends, gives away or shows, or has in his posssession with intent to sell, lend, give away or show, or otherwise offers for sale, loan, gift or distribution, any book, pamphlet, magazine, newspaper or other printed paper de- voted to the publication, and principally made up of oriminal news, police reports, or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime ; or who, 3. In any manner, hires, employs, uses or permits any minor or child to do or assist in doing any act or thing mentioned in this section, or any of them, Is guilty of a misdemeanor, and. upon conviction, sha.n be 237 §§ 1M1-L1M2] IXDECENOY [Art. IOC sentenced to not less than ten clays nor more than one year imprison- ment or be fined not less than fifty dollars nor more tlian one thousand dollars or both fine and imprisonment for each offense. Derivation: Penal Code, § 317, as amended L. 1884, ch. 380, § 1; L. 1887, ch. 692, § 1 ; subd. 1, as amended L. 1900, oh. 731. Pcoixe V. Muller (1884), 96 N. Y. 4C8, 2 N. Y. Cr. 375, aflF'g 32 Hun, 209; Peo-p"e V. Kaufman (1897), 14 App. Div. 305, 43 N. Y. Supp. 1046; People v. liastman (1907), 188 N. Y. 478; aff'g 116 App. Div. 922, 101 N. Y. Supp. 1137; People v. Seliermerliorn (1908), 59 Mise. 149, 112 N. Y. Supp. 222; Ece also In re Worthington Co., 30 N. Y. Supp. 361, 24 L. R. A. 110, com- mented on, 28 Am. L. Rev. 932; Willis v. Warren, 1 Hilt. 590; McNair v. People, 98 in. 441; Com. v. Holmes, 17 Mass. 336; People v. Ketcliura, 103 Midi. 443, 27 L. R. A. 448; State v. Brown, 27 Vt. 619; State v. Milb.rd, 18 Vt. 574; Rosen v. United States, 161 U. S. 29; Com. v. Landis, 8 P'.iila. 453; United States v. Bennett, 16 Blatch. 338; Queen v. Hicklin, L. R. 3 Q. B. 360; United States v. Stenker, 32 Fed. 693; Reg. v. Hicklin, L. R. 2 Q. B. 360; r.zg. V. Grey, 4 Frost & Fin. 73; Knowles v. State, 3 Day, 103; Com. v. Sharpless, 2 Serg. & R. 91; Barring v. Walround, 2 Chan. Cas. 110; Reg. v. Sa'.:nile:s, 13 Cox Cr. Cas. 116; Com. v. Lcndia, 8 Phila. 453; State v. Roper, 1 Dev. & Bat. 208 ; Reg. v. Elliot, Leigh & Cave, 103. § 1141-a. [Added, 1909.] Indecent prints and pictures in public places. Any person who shall expose, place, display, post up, exhibit or TpairA., print or mark, or cause to be exposed, placed, displayed, posted, exhibited or painted, printed or marked in or on any building, struc- ture, billboard, wall or fence, or on the street, or in or upon any public place, any placard, poster, bill or picture, or shall knowingly permit the same to be displayed on property belonging to or controlled by him, which placard, poster, bill or picture shall tend to demoralize the morals of youth or others or which shall be lewd, indecent, or immoral, shall be guilty of a misdemeanor. Added by L. 1909, eh. 280. In effect Sept. 1, 1900. § 1142. Indecent articles. A person wh.o sells, lends, gives away, or in any manner exhibits or offers to sell, lend or give away, or l:as in his possession with intent to sell, lend or give awaj', or advertises, or offers for sale, loan or distribution, any instrument or article, or any recipe, drug or medicine for the prevention of conception, or for causing unlawful abortion, or purporting to be for the prevention of conception, or for causing unlaw- ful aboi-tion, or advertises, or holds out representations that it can be 60 used or applied, or any such description as will be calculated to lead another to so use or apply any such article, recipe, drug, medicine or instrument, or who writes or prints, or causes to be written or printed, a card, circular, pamphlet, advertisement or notice of any kind, or gives information orally, stating when, where, how, of whom, or by what means such an instrument, article, recipe, drug or medicine can be purchased or obtained, or who m.anufactures any such instrument, article, recipe, drug or medicine, is guilty of a misdemeanor, and shall be liable to the same penalties as provided in section eleven hundred and*f orty-one of this chapter. 238 Art. 106] INDECEjSTCY [§§ 1142-a-1144 Derivation: Penal Code, § 318, aa amended L. 1887, ch. 6D2, § 2. Halstead v. Nelson (1885), 36 Hun, 149; People v. Spier (1907), 120 App. Div. 787. § 1142-a. Advertisements relating to certain diseases pro- hibited. Whoever publishes, delivers or distributes or causes to be published, delivered or distributed in any manner whatsoever an advertisement concerning a venereal disease, lost manhood, lost vitality, impoteicy, sexual weakness, seminal emissions, varicocele, self-abuse or excessive sexual indulgence and calling attention to a medicine, article or prepa- ration that may be used therefor or to a person or persons from whom or an office or place at which information, treatment or advice relating to such disease, infirmity, habit or condition may be obtained, is guilty of a misdemeanor and upon conviction thereof shall be punished by imprisonment for not more than six months, or by a fine of not less than fifty dollars nor more than five hundred dollars, or by both such fine and imprisonment. This section, however, shall not apply to didactic or scientific treatises which do not advertise or call attention to any person or persons from whom or any office or place at which information, treatment or advice may be obtained, nor shall it apply to advertisements or notices issued by an incorporated hospital or a licensed dispensary or by a municipal board or department of health or by the department of health of the state of New York. (Added by L. 1917, ch. 487, in effect Sept. 1, 1917.) § 1143. Mailing or carrying obscene prints and articles. A person who deposits, or causes to be deposited, in any post-office within the state, or places in charge of an express company, or of a common carrier, or other person, for transportation, any of the articles or things specified in the last two sections, or any circular, book, pamphlet, advertisement, or notice relating thereto, with the intent of having the same conveyed by mail or express, or in any other manner, or who knowingly or wilfully receives the same, with intent to carry or convey, or knowingly or wilfully carries or conveys the same, by express, or in any other manner except in the United States mail, is guilty of a misdemeanor. Derivation: Penal Code, § 319. Halstead v. Nelson (1885), 36 Hun, 153. § 1144. Warrant to sheriff to search. A magistrate having jurisdiction to issue warrants in criminal cases, upon complaint that any person within his jurisdiction is offending against the provisions of this article, supported by oath or affirmation, must issue a warrant, directed to the sheriff or to any constable, marshall, or police officer within the county, direct- ing him to search for, seize, and take possession of any of the articles specified in this article, in the possession of the person against whom complaint is made. The magistrate must imme- 230 §§ 1145-1146] INDECENCY [Art. 106 diately transmit every article seized by virtue of the warrant, to the dis- trict attorney of the county, who must, upon the conviction of the person from whose possession the same was taken, cause it to be destroyed, and the fact of such destruction to be entered upon the records of the court in which the conviction is had. Derivation: Penal Code, S 320. § 1145. Physicians' instrnments. An article or Instrument, used or applied by physicians lawfully prac- ticing, or by their direction or prescription, for the cure or prevention of disease, is not an article of indecent or immoral nature or use, within this article. The supplying of such articles to such physicians or by their direction or prescription, is not an offense under this article. Derivation: Penal Code, S 321. § 1146. Seeping disorderly houses. Whosoever shall keep or maintain a house of ill-fame or assignation of any description or a place for the encouragement or practice by persons of lewdness, fornication, unlawful sexual interccourse or for any other indecent or disorderly act or obscene purpose therein or any place of public resort at which the decency, peace or comfort of a neighborhood is disturbed shall be guilty of a misdemeanor. When the lessee, proprietor, or keeper of a disorderly house or other building or any other person is convicted under this section, the lease or contract for letting the premises or the part thereof in which such viola- tion occurred shall, at the option of the owner, agent or lessor, become void and the owner, agent or lessor may have the like remedy to recover the possession as against a tenant holding over after the expiration of his term. Whosoever as owner, agent or lessor shall agree to lease or rent or contract for letting any building or part thereof knowing or with good reason to know, that It is intended to be used for any of the uses or pur- poses herein prohibited or whosoever as owner, agent or lessor know- ingly or with good reason to know permits any house or room or other part of any building or premises of which he may be the owner, agent or lessor to be used in whole or in part for any of the uses or purposes here- in prohibited, shall be guilty of a misdemeanor. Upon conviction of any person for a violation of the provisions of this section, the court before whom such conviction shall have been had, or the clerk of such court if there be a clerk, shall forthwith make and file in the office of the clerk of the county, in which said conviction shall have been had, a certified statement of said conviction and sentence, if any; and the clerk of said co"::*-y shall Immediately enter in the judgment dofke* book in said office the amount of the penalty or fine imposed, as a judgmen' against the person so convicted or sentenced. A^! persons convicted under this section in aJl places to which chapter s'x hrnfirecl and fifty-nine of the laws of nineteen hundred and ten ap- plies ?^hall be Identified as provided for in section seventy-eight of that chFP'er, (Amended by L. 1910, ch. 619; L 1913, ch. 591, in effect May 17, 1913.) Derivation: Penal Code, § 322, as amended L. 1887, ch. 690, I 1; L. 1906, ch. 270, § 1. ^. amination of persons arrested, for presence of venereal disease. See Pub- lic Health, §§ 343m, 343n, as added by L. 1918, ch. 264, and amended by L. 1919, ch. 4a Ely v. Supra (1867), 36 N. Y. 297, aff'g 46 Barb. 659; Jaxiobowisky v. People (1876), 6 Hun 524, 64 N. Y. 659; Barnesciotta v. People (1877), 10 Hun 137, 69 N. Y. 612; Berry v. People (1878), 1 N. Y. Cr. 43, aff'd in Ct. of App. 1879; King r. People (1880), 83 N. Y. 590; King v. People (1880), 83 N. Y. 687; 240 Art. 106] INDECEK-CY [§§ 114Y-1148 King V. People (1880), 83 N. Y. 588; People ex rel. Van Houton v. Sadler ( 1884), 97 N. Y. 146, 3 N. Y. Cr. 473; People v. Miller ( 1885) , 3 N. Y. Cr. 476. 38 Hun 83; Lawton v. Steele (1890), 119 N. Y. 239; aS'g 5 N. Y. Supp 953; People V. Upson (1894), 79 Hun., 87, 29 N. Y. Supp. 615; People v. Jamee (1886), 11 App. Div. 609, 43 N. Y. Supp. 315, 12 N. Y. Cr. 196; People v. Burns (1897), 19 Misc. 680, 44 N. Y. Supp. 1106; Plath v. Kline (1897), 18 App. Div. 240, 45 N. Y. Supp. 951; People v. Herlihy (1901), 66 App. Div. «34, 16 N. Y. Cr. 235, 73 N. Y. Supp. 236, rev'g 35 Miso. 711, 16 N. Y. Cr. 33, 72 N. Y. Supp. 389; People ex rel. Warren v. Brady (1902), 37 Misc. 126, 74 N. Y. Supp. 973 ; Ciiy of Buffalo v. Preston ( 1903 ) , 81 App. Div. 480, 80 N. Y. ©upp. 851; People v. Miller (1903), 81 App. Div. 460, 492, 80 N. Y. Supp. 851; People v. Champlin (1907), 120 ApipL Div. 509; Morton v. Knipe (1908), 128 App. Div. 96; People v. Jones (190S), 191 N. Y. 292; see also Arms v. Bic^rdison, 5 N. Y. Supp. 755 ; People v. Carey, 4 Park. 238 ; People v. Erwin, 4 Den. 120; People v. Hatter, 22 N. Y. Supp. 690; Lowenstein v. People, 54 Barb. 299; People v. Mauch, 24 How. Pr. 276; Moody v. Supervisors, 46 Barb. 659; People v. Rowland, 1 Wheel. Cr. Gas. 286; People v. Wallach, 15 N. Y. Supp. 876; Wooster v. State, 55 Ala. 217; State v. Hanchett, 36 Conn. 35; Henson V. State, 63 Md. 231, 50 Am. Rep. 204, 5 Crim. L .Mag. 693; Com. v. Hopkins, 133 Masa. 381, 43 Am. Rep. 527; Handy v. State, 63 Miss. 207, 56 Am. Rep. 803; State v. Fletcher, 18 Mo. 425; State v. Dame, 60 N. H. 479, 49 Am. Rep. 331 ; Troutman v. State, 40 N. J. L. 33 ; State v. Smith, 29 Minn. 195 ; Killman v. State, 2 Tex. App. 222, 28 Am. Rep. 432; H«rzinger v. State, 70 Fed. 278; King v. State, 17 Fed. 190; Com. v. Kimball, 7 Gray, 328; United States V. Gray, 2 Cranoh, C. O. 675 ; Com. v. Harrington, 3 Pick. 26. .§ 1147. Who may arrest persons violating provisions of this article. Any agent of the New York society for the suppression of vice, upon being designated thereto by the sheriff of any county in this state, may within such county make arrests and bring before any court or magistrate thereof having jurisdiction, offenders found violating the provisions of any law for the suppression of the trade in, and circulation of obscene litera,ture and illustra- tions, advertisements and articles of indecent and immoral use, as it is or may be forbidden by the laws of this state, or of the United States. Derivation: L. 1875, ch. 205. § 1148. Male person living on proceeds of prostitution. Every male person who lives wholly or in part on the earnings of prostitution, or who in any public place solicits for immoral pur- poses, is guilty of a misdemeanor. A male person who lives with or is habitually in the company of a prostitute and has no visible means of support, shall be presumed to be living on the earnings of prostitution. (Added by L. 1910, eh. 382, in effect Sept. 1, 1910.) Examination of persons arrested, for presence of venereal disease. S^ Pub- lie Health Law, §§ 343m, 343n, as added by L. 1918, ch. 264, and amended by L. 1919, ch. 40. 241 §§ 1160-llGll INDIANS [Art. 108 ABTICIiE 108. INDIANS. BEcnuiir 1100. Trespasses on Indian land. 1181. Trespasses on Onondaga reservation. § 1160. Trespasses on Indian land. A person who cuts, removes, canscs to be removed or a'ds or assists in removing from the Alleghany, Cattaraugus, Tonawauda or Onondaga reservations any wood, trees, timber, bark or poles, except as authorized by law, is guilty of a misdemeanor. Derivation: Fcnal Code, S C40a, added L. 1803, cl). C02, § 2. § 1161. Trespasses on Onondaga reservation. A person, other than an Onondaga Indian, who cuts or removes from the Onondaga reservation any tree, timber, wood, bark or poles; or an Indian who cnts for the purpose of sale or removal from such reservation, or who removes, causes to be removed or aids in the removal from such reservation of any tree, timber, wood, bark or poles, except on the written permission of a ma- jority of the chiefs of the Onondaga tribe, particularly speci- fying the quantity and kind of trers, timber, wood, bark or poles to be cut or removed, is guilty of a misdemeanor. DerlvBtlon: i^ena] Tode, | 11405, added L. 18G3, eh. 692, { 8. 243 Art. 110 INSOLVENCY [§§ 1170-1171 ARTICLE 110. * nrSOLVENCT Sscnox 1170. Fraudulent conveyances of property. 1171. Fraudulent removal of property to prevent levy. 1172. Knowingly receiving property removed ti defraud creditora 1173. Concealment of clTects of insolvent debtor. § 1170. Fraudulent conveyances of property. A person who : 1. Becomes a party to a conveyance or assignment of real or personal property, or of an interest therein, with intent to de- fraud prior or subsequent purchasers, or to hinder, delay, or de- fraud creditors or other persons; or, 2. Being a party or privy to, or knowing of, such a conveyance or assignment so made, wilfully puts the same in use as having been made in good faith, Is guilty of a misdemeanor. Derivation: Penal Code, § S80. Lapliam v. Marshall (1880), 51 Hun, 30. 40, 3 N. Y. Supp. 601; Loos v. Wilkinson (1889), 113 N. Y. 485, rev'g 51 Hun, 74, 5 N. Y. Supp. 410; Shaf- fer V. Martin (1808), 25 App. Div. 501, 49 N. Y. Supp. 853; Wright v. Hart (1905), 182 N. Y. 330, 347; Loomis v. People (1880), 19 Hun, 601, 46 How. Pr. 247; People v. Schlessel (1908), 127 App. Div. 610; see also People v. Morrison, 13 Wend. 399; Stringfleld v. Fields, 13 Daly, 173; Tliomas v. Peo- ple, 19 Wend. 480. § 1171. Fraudulent removal of property to prevent levy. A person who with intent to defraud a creditor, or to prevent any of his property from being made liabe for the payment of any of his debts, or levied upon by an execution or warrant of attachment, removes any of his property or secretes, assigns, con- veys or otherwise disposes of the same; or with intent to de- fraud a creditor, removes, secretes, assigns, conveys or otherwise disposes of any of his books of account, accounts, vouchers or writings in any way relating to his business affairs, or destroys, obliterates, alters or erases any of such books of account, accounts, vouchers or writings, or any entry, memorandum or minute therein contained, is guilty of a misdemeanor. DeTivation: Penal Code, § 587, as amended L. 1893, ch. CSl, § 1. * Tlie Standard and Leading AVorks are Collier on Bankruptcy and Moore on Fraudulent Conveyances. 243 §§ 1172-1173 INSOLVENCY Art. 110 § 1172. Knowingly receiving property removed to defraud creditors. A person who receives any property from another knowing that the same is transferred or delivered to him in violation of, or with intent to violate, the last section, is guilty of a misdemeanor. Derivation: Penal Code, § 588. § 1 173. Concealment of effects of insolvent debtor. A person who being an applicant, as an insolvent debtor, for a discharge from his debts, or for exoneration or discharge from imprisonment, or having made a general assignment of hia prop- erty far the payment of his debts, wilfully : 1. Conceals any part of his estate or effects, or any book, ac- count, or other writing relative thereto ; or, 2. Omits to disclose, to the court before which his application is pending, any debt or demand which he has collected, or any transfer of property which he has made, since the presentation of his application; or, 3. JTraudulently presents,. or authorizes to be presented in his behalf, such an application, in a case where it is not authorized by law ; or, 4. Makes or presents to the court or officer in support of such an application, a petition, schedule, book, account, voucher, or other paper or document, knowing the same to contain a false state- ment; or, 5. Fraudulently makes and exhibits, or alters, obliterates, or destroys an account or voucher, relating to the condition of his affairs, or an entry or statement in such an account or voucher ; or, 6. Commits any fraud upon a creditor, to induce him to peti- tion for, or consent to such a discharge ; or, 7. Conspires with, or induces another fraudulently to consent as creditor to a petition for such discharge, or to practice any fraud in aid thereof, Is guilty of a misdemeanor. Derivation: Penal Code, § 589. Dickinson t. Benham, 10 Abb. Pr. 390, 19 Abb. Pr. 168; Gasherie ▼. Apple, 14 Abb. Pr. 64; McButt v. Hirsch, 4 Abb. Pr. 441; Ion T. People, 12 Wend. 344; People T. Morrison, 13 Wend. 399; Vanderwerken t. People, 6 Wand. 530. 244 Art. 112 INSUKANCE § 1190 ARTICLE lis. INSUBANCE. Seotioit 1190. Fal«e statementa In applications for membership in fraternal benefit associations. 1191. Discriminations and rebates by life insurance corporations pro- hibited. 1192. Acting as agent of life insurance corporation without certificate of authority. 1193. Fire insurance corporations to use standard policy only. 1194. Over-charges by marine insurance agents. 1196. Misconduct of officers and agents of corporations for the insur- ance of domestic animals. 1196. Transfers to and reinsurance of risks in unauthorized foreign corporations prohibited to co-operative associations. 1197. Misconduct of officers and agents of co-operative insurance companies. 1198. Acts of agents of fire or marine insurance corporation, organ- ized in other countries, after revocation of certificate. 1199. Acting for foreign insurance corporation vfhich has not desig- nated superintendent of insurance as attorney. 1200. Heceiving rebates on life insurance; privileges of witnesses in investigations relating thereto. 1201. Destroying property insured. 1202. Presenting false proofs of loss in support of claim upon policy of insurance. 1203. Issue or circulation of false literature. § 1190. False statements in application for membership in fraternal benefit associations. Any applicant, officer, agent, solicitor, examining physician, surgeon or other person, who knowingly or wilfully makes any false or fraudulent statements or representations in or with ref- erence to any application for membership or reinstatement or any other documentary or other proof for the purpose of obtaining or reinstating membership in or benefit from any fraternal bene- ficiary society, order or association, any corporation, association or society transacting the business of life or casualty insurance or both, upon the co-operative or assessment plan, or a corporation for the insurance of domestic animals, is guilty of a misdemeanor. BerlTatioa: Penal Code, i S77a, added L. 1892, eh. 692, i 1, and amended L. 1893, ch. 692, { 1. 246 §§ 1191-1192 INSUEANCE Art. 112 § 1191. Discriminations and rebates by life insurance cor- porations prohibited. Any life insurance corporation or corporation transacting the business of life insurance on tlie co-operative or assessment plan doing business in this state, or any officer or agent thereof, who: 1. Makes any discrimination in favor of individuals of the samo class or of the same expectation of life either in the amount of the premium charged or in any return of premiums, dividends or other advantages ; or, 2. Makes any contract for insurance or agrc^iment as to such contract other tiian that which is plainly expressed in the policy issued ; or, 3. Pays or allows, or offers to pay or allow as an inducement to any person to insure, any rebate or premium, or any special favor or advantage whatever, in the dividends to accrue thereon or any inducement whatever not specified in the policy ; or, 4. ilakes any distinction or discrimination between white per- sons and colored persons, wholly or partially of African descent, as to the premiums or rates charged for po icies upon the lives of such persons, or in any other manner whatever ; or demands or re- quirts a greater premium from such colored persons than is at that time required by such company from white persons of the same age, sex, general condition of health and prospect of longevity; or makes or requires any rebate, diminution or discount upon the amount to be paid on such policy in case of the death of such colored persons insured, or inserts in the policy any condition, or makes any stipulation whereby such person insured shall bind himself, or his heirs, executors, administrators and assigns to ac- cept any sum less than the full value or amount of such policy in case of a claim accruing thereon by reason of the death of such person insured, other than such as are imposed upon white persons in similar cases, is guilty of a misdemeanor. K'othing in this section shall be construed to require any corporation doing busi- ness under artie es six or seven of the insurance law, which limits and confines its business or membership to the members of a secret or fraternal order or body, to insure or accept any individual who is not a member of such secret or fraternal order or body. (Amended by L. 1913. ch. 180, in effect Sept. 1, 1913.) Derivation: Penal Code, i B77b, added L. 1892, ch. 692, § J. Madden v. Underwriting Pub. Co. (1894), 10 Misc. 27, 30 N. Y. Supp. 1052. § 1192. Acting as agent of life insurance corporation with- out certificate of authority. Any person acting as agent, subagent or broker of a life insurance corporation doing business in this state, except as agent operating 246 Art. 112] INSURANCE [§§ 1193-1194 solely on the weekly payment plan of insurance, who solicits or pro- cures applications for insurance without first procuring a certificate of authority from the superintendent of insurance, is guilty of a misde- meanor. Derivation: Penal Code, § 577c, added L. 1892, ch. 602, § 1. Wyatt V. McNamee (1906), 50 Misc. 348, 98 N. Y. Supp. 749. § 1193. Fire insurance corporations to use standard policy only. Any fire insurance corporation, or any officer or agent. thereof, who makes, issues, delivers, or offers to deliver any policy of fire insurance on property in this state, which does not conform in all particulars as to blanks, size of type, context, provisions, agreements and conditions with the printed form of contract or policy of fire insurance filed in the office of the superintendent of insurance pursuant to the require- ments of section one hundred and twenty-one of the insurance law and known and designated as the " Standard fire insurance policy of the Biate of New York," except as to such exceptions as are specially pro- vided and allowed by law, is guilty of a misdemeanor, punishable by a fine of not less than twenty-five nor more than one hundred dollars for the first offense, and of not less than one hundred or more than two hundred and fifty dollars for each subsequent offense. (Amended by L. 1917, ch. 440, in effect May 15, 1917.) CeriTation: Penal Code, § 577d, adided L. 1892, ch. 692, § 1. Gou^h V. Davis (1898), 24 Misc. 245. 52 N. Y. Supp. 947; Bellinger v. Ger- man Ins. Co. (1906), 51 Misc. 466, 100 N. Y. Supp. 424. § 1194. Over-charges by marine insurance agents. Any agent, shipper or other person, representing or acting for a marine insurance corporatioii doing business in this state who : 1. Charges or receives, directly or indirectly from any person for insurance of any property in transit upon the canals of the state, any greater sum than (ho regular rates of premium fixed by the corporation for the insurance of such property; or, 2. Demands or receives upon any poliey of insurance issued iipon any such property, for the business of obtaining such insur- ance, a sum of money, as compensation or rcnumeration by way of salary, commission or in any other capacity, which includes in any case, over fifteen per centum of the premium, Is guilty of misdemeanor. DerlTation: Penal Code, § 577e, added L. 1892, c^i. 692, § 1. 247 §§ 1195-1197 INSUKANCE Art. 112 § 1195. Misconduct of officers and agents of corporations for the insurance of domestic animals. Any officjer or agent of a corporation organized for the insur- ance of domestic animals who: 1. Refuses to make any report or perform any duty required by law; or, 2. Intentionally makes any false or fraudulent statement or report, Is guilty of a misdemeanor punishable by a fine of not less than one hundred or more than five hundred dollars. Derivation: Penal Code, § 577f, added L. 1892, ch. 692, § 1. § 1196. Transfers to and reinsurance of risks in unauthor- ized foreign corporations prohibited to co-operative associations. Any ofiicer, manager, director or agent of a casualty insurance corporation upon the co-operative or assessment plan, organizu.l under the laws of this state, who transfers its risks or assets or any part thereof to or reinsures its risks or any part thereof, in any insurance corporation or association of another state or coun- try which is not, at the time of such transfer or reinsurance au- thorized by law to do insurance business in this state, is guilty of a misdemeanor. Derivation: Penal Code, § 577g, added L. 1892, ch. 692, § 1. § 1197. Misconduct of officers and agents of co-operative in- siu°ance companies. Any officer, agent or representative of a corporation, associa- tion, or society doing a life or casualty insurance business or both, upon the co-operative or assessment plan, who: 1. Neglects or refuses to perform any duty required of him by law; or, 2. Intentionally makes any false or fraudulent statement or re- port; or, 3. Refuses to permit the superintendent of insurance or any ex- aminer duly authorized by him for the purpose, to make an exami- nation of the condition and business, books, papers and vouchers of any such corporation, association or society ; or, 4. Thirty days after any such corporation has been notified by the superintejident of insurance to designate some person residing in the same city, village or town where the principal business 248 Art. 112 li^SUKAKCE §§ 1198-1199 oiiioe witMn the state of such corporatioii, is located, as a person upon wnom service of legal proct»d ana papers may be niaue, aa provided by law, ooliects any money or issnes any oeruncate in car- rying on such business, auring me failure oi suun corporation to designate such person j or, 5. Being within this state the agent or representative ot any such corporation, association or society, wnicn ua^ ntgieciea or re- fused to comply witn any duty impuseu upon it uy law, ur wmcn has failed or neglected to procure irom tne supei'intenueni ot in- surance the certincate of authority to transact business witliin this state as provided by law, acts as sucn agent, during such period of default, Is guilty of a misdemeanor. DeTiTBtiomi Penal Code, § 577h, added L. 1892, ch. 692, i 1. § 1198. Acts of agents of fire or mcurine insurance corpora- tion, organized in other countries, after revocation of cercincate. Any agent of a fire or marine insurance corporation, incorpor- ated by or existing under the government or laws of another country than the United States, and doing business in this state, who issues any new policy of insurance after having been notitied by the superintendent of insurance that the certificate of such corporation to do business within this state haa been revoked, is guilty of a misdemeanor. Derivatiom: Penal Code, § 577i, added L. 1892, ch. 692, § 1. § 1199. Acting for foreign insurance corporation which has not designated superintendent of insurance as attorney. Any person acting for himseK or for others, who solicits or procures, or aids in the solicitation or procurement of policies or certificates of insurance from, or adjusts losses or in any manner aids the transaction of any business for, any foreign insurance corporation, which has not executed and filed in the ofiice of the superintendent of insurance, a written appointment of the super- intendent to be the true and lawful attorney of such corporation in and for this state, upon whom all lawful process in any action or proceeding against the corporation may be served, is guilty o'i: a misdemeanor. (Amended by L. 1913, ch. 50, in effect Sepr. 1, 1913.) DerlTation: Penal Code, § 577j, added L. 1892, ch. 692, § X. Burgess v. Jackson (1897), 18 App. Div. 296. 46 N. Y. Supp. 326. 249 §§ 1200-1202 INSURANCE Art. 112 § 1200. Receiving rebates on life insurance; privileges of witnesses in investigations relating thereto. Any person knowingly receiving any rebate or allowance or de- duction from any premium, or iiny valuable thing, special favor or advantage whatever, as an inducement to take any policy of life insurance, not s])ecificd iu the policy is guilty of a misde- meanor. No person shall be excused from attending and testifying, or producing any books, papers or other documents before any court or magistrate, upon any investigation, proceeding or trial, for a violation of any of ihe provisions of this section, upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture; but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding. DeriTation: Fenal Code, § S77k, added L. 190C, ch. 231, § 1, and amended L. 1907, ch. 741, § 1. § 1201. Destroying property insured. A person who, with intent to defraud or prejudice the insurer thereof, wilfully burns, or in any manner injures or destroys property not included or described in section fifteen hundred and six, which is insured at the lime against loss or damage by fire or by any other casualty, under such circumstances that the offense is not arson in any of its degrees, is punishable by imprisonment for not more than five years, or by a fine of not more than five hundred dollars, or by both such fine and imprisonment. DcTlTation: Penal Code, § 678. § 1202. Presenting false proofs of loss in support of claim upon policy of insurance. A person who knowing it to be such : 1. Presents, or causes to be presented, a false or fraudulent claim, or any proof in support of such a claim, for the payment of a loss upon a contract of insurance; or, 2. Prepares, makes or subscribes a false or fraudulent account, 250 Art. 112 INSURANCE § 1203 certificate, affidavit or proof of loss, or other document or writing, with intent that the same may bo presented or used in support of such a claim, Is punishable by imprisonment for not more than five years, or by a fine of not more than five hundred dollars, or by both such fine and imprisonment. Derivation: Penal Code, § 570, as amended L. 1832, ch. 384, § 1. People V. Vaughan (1897), 19 Misc. 2!)8, 42 N. Y. Siipp. 95!), 11 N. Y. Cr. 388; People v. Spiegel (1894), 75 Hun, 1G2, 20 N. Y. Supp. 1041. § 1203. Issue or circulation of false literature. Any . insurance corporation, or any officer, director or agent thereof who shall issue or circulate or cause or permit to he issued or circulated in this state any illustration, circular or statement indicating that such corporation can transact in this state any business of a character other than that which it is authorized to transact under the certificate of authority issued to it by the su- perintendent of insurance, shall be guilty of a misdemeanor, and the superintendent of insurance shall revoke the certificate of au- thority of the corporation or agent on a conviction for so offend- ing. (Added by L. 1913, eh. 483, in effect Sept. 1, 1913.) S&l |§ 1210-1212] INTOXICATING LIQUOKS. [Art. Il3 ARTICLE 113. (Article added by L. 1921, ch. 155, in effect April 4, 1921.) INTOXICATING LIQUOR. Section 1210. Definition of intoxicating liquor. 1211. Definition of intoxicating liquor to conform to federal statute. 1212. Prohibited transactions in intoxicating liquor. 1213. Exceptions; application of article. 1214. Sale on a physician's prescription. 1214-a. Prescriptions for intoxicating liquor. 1214-b. Records required. 1214-e. Transportation restrictions. 1214-d. Illegal advertisements in respect of intoxicating liquor. 1214-e. Unlawful utensils et cetera, for manufacture. 1214-f. Unlawful solicitation of orders. 1214-g. Maintenance of place where violations are committed. 1214-h. Possession or taking orders in violation of article. 1214-i. Konbeverage preparations. 1215. Eegister of permit. 1216. Possession as evidence, burden of proof. 1217. Injunction proceedings. 1218. Penalties. § 1210. Definition of intoxicating liquor. When used in this article the phrase " intoxicating liquor " shall be construed to include alcohol, brandy, whiskey, rum, gin, beer, ale, porter and wine, and in addition thereto any spirituous, vinous, malt or fermented liquor, liquids and compounds, whether medicated, proprietary, patented or not, and by whatever name called, containing one-half of one per centum or more of alcohol by volume. (Added by L. 1921, ch. 155, in effect April 4, 1921.) § 1211. Definition of intoxicating liquor to conform to federal statute. Notwithstanding the provisions of the preceding section, the phrase " intoxicating liquor," for the purpose of this article, shall have the meaning defined by the congress from time to time here- after for the purpose of enforcing the provisions of the eighteenth amendment to the constitution of the United States. If this sec- tion be held to be invalid, it is hereby provided that other provi- sions of this article which are not expressly held to be invalid shall continue in full force and effect. (Added by L. 1921, ch. 155, in effect April i, 1921.) § 1212. Prohibited transactions in intoxicating liquor. 1. Any person who manufactures or sells any intoxicating liquor to be used for beverage purposes, or who manufactures or sells any intoxicating liquor for nonbeverage purposes, unless he shall be the 251a Art. 113] INTOXICATING LIQUORS. [§ 1213 holder of a permit therefor from the proper federal authorities and shall have registered such permit as provided in this article, shall be punishable for a first offense by a fine of not more than one thousand dollars, or by imprisonment for not more than six months, and for a second or subsequent offense by a fine of not less than two hundred dollars nor more than two thousand dollars, and by imprisonment for not less than thirty days nor more than five years. 2. Any person who barters, transports, imports, exports, de- livers, furnishes or possesses any intoxicating liquor to be used for beverage purposes, or "who barters, transports, imports, ex- ports, delivers, furnishes or possesses any intoxicating liquor for nonbeverage purposes, unless he shall be the holder of a permit therefor from the proper federal authorities and shall have reg- istered such permit as provided in this article, shall be punish- able upon conviction for the first offense by a fine of not more than five hundred dollars, and upon conviction for a second of- fense by a fine of not less than one hundred dollars nor more than one thousand dollars, or imprisonment for not more than ninety days, and upon conviction for any subsequent offense by a fine of not less than five hundred dollars and imprisonment for not less than three months nor more than two years. (Added by L, 1921, ch. 155, in effect April 4, 1921.) § 1213. Exceptions; application of article. ITothing in this article shall be construed to forbid 1. The possession of intoxicating liquor in one's private dwelling or abode while the same is occupied by him as a dwelling, pro- vided such intoxicating liquor was legally his property before the enactment of this section and is for use only for the personal consumption of the owner thereof and his family residing in such dwelling and of his bona fide guests v^hen entertained by him therein. 2. The manufacture and possession of nonintoxicating cider and fruit juices by a person exclusively for use in his home. 3. The temporary possession of cider by the manufacturer thereof and its sale by him to a manufacturer of vinegar, who is the holder of a permit from the proper authorities of the United States, which he has registered under the provisions of this article, or the possession of such cider by such manufacturer of vinegar during the process of its development into vinegar. 4. The temporary possession by a manufacturer of intoxicating liquor for the purpose of reducing the alcoholic content thereof so that before it is withdrawn from the factory or otherwise dis- posed of it shall contain less than one-half of one per centum of 231b § 1214] IITT0XICATII7G LIQUOES. [Art. 113 alcolicl by volume, if such manufactursr is the holder of a permit from the proper authorities of the United States and such permit is registered as provided in this article. 5. The possession, storage and removal of lawfully acquired liquor for personal consumption by the owner thereof, his family and bona fide guests, where such liqiior was acquired by such OT/ner before the seventeenth day of January, nineteen hundred and twenty. The burden of proof, however, shall be upon the ov/ner, in any action concerning the same, to prove that such liquor was lav/fully acquired, possessed and used. 6. The purchase of sacramental wines by or the sale or gift of sacramental wines to any minister, priest, rabbi, clergyman or officer of a religious society, or the acceptance, manufacture, posses- sien or uee in the state of such wines, or the delivery of such wines in the state or the acceptance thereof for delivery. The term "sacramental wines," as used herein, includes and means wines used for or in religious services. 7. The purchase and sele of warehouse receipts covering intoxi- cating liquor on deposit in government bonded warehouses, [(Added by L. 1921, ch. 155, in e^Fect April 4, 1921.) § 1214. Sale on a physician's prescription. Intoxicating liquor shall not be scld at retail for medical pur- poses except as follows: 1. By a duly licensed pharmacist of the state of "New York in good standing or a corporation, association or copartnership, a member or employee of which is a duly licensed pharmacist of the state of New York in good standing and in personal charge of the premises where such liquor is sold, upon the prescription of a duly licensed physician of the state of New York actively engaged in the practice of his profession. 2. Not more than one pint of spirituous liquor to be taken internally shall be prescribed or sold under a physician's pre- scription for use by the same person within a period of ten days, and no such liquor shall be scld for external use until the same has been made unfit for internal use. 3. No prescription shell be filled more than once. 4. Any pharmacist filling a prescription shall at the time! indorse upon it, over his signature, the word " canceled," together with the date when the liquor was delivered, and make the same a part of the record that he is required to keep as herein provided. 5. The pharmacist shall permanently attach to the container of such liquor so sold a label stating the name and address of the person selling and purchasing such lirjror, the name and address of the physician issuing the prescription and the date of 251c Art. 113] I:DTTOXICATI1TO LIQUORS [C3 1214a-1214c Buck sale, and sucli label shall not be removed frcia such container until the contents of the container are entirely consumed. 6. Every pharmacist who fills a prescription for such liquor shall keep a record, alphabetically arranged, in a bock kept for that purpose, -which record shall show the date of filling, amount and kind of liquor prescribed, to whom sold, the name of the physician issuing the prescription and the numljsr of the prescrip- tion and prescription beck. Such record shall be kept open to inspection by the district attorney or sheriff of the county or any magistrate or peace oScer. (Added by L. 1921, ch. 155, in e.aeet April 4, 1921.) § 1214-a. Prescription for intoxicating liquor. It shall not be lawful to issue a prescription for intoxicating liquor unless the person issuing the prescription is a physician duly licensed to practice medicine in the state of IsTew York, and actively engaged in the practice of such profession, nor unless he be llie holder of a permit to prescribe liquor from the proper federal authorities ; and no physician shall prescribe such liquor unless after careful examination of the person for whose use such prescription is sought, or if such examination is found imprac- ticaLle, then upon the best information obtainable, he in good faith believes that the use of such liquor as a medicine ty such person is necessary and will afTord relief to him from seme known ailment. (Added by L. 1921, ch. 155, in e-7ect April 4, 1921.) § lC14-b. Records required. ITo person shall manufacture, purchase for sale, sell or trans- port any intoxicating liquor without making at the time a perma- nent record thereof showing in detail the amount and kind of si^ch liquor manufactured, purchased, sold or transported, together with the names and addresses of the persons to whom sold, in case of Bale, and the consignor and consignee in case of transportation, and the time and place of such manufacture, sale or transportation. Such record shell at all times be open to inspection as in this article provided. (Added ty L. 192i; ch. 155, in e^ect April 4, 1921.) § 1214-c. Trar-Epcrtaticn restrictions. ITo person shall use or induce any carrier, or any agent or em- ployee thereof, to carry or ship any package or receptacle contain- ing intoxicating liquor without notifying the carrier of the true nature and character of the shipment. No carrier shall transport nor shell any person receive such liquor from a carrier unless there appears on the outside of the package containing such liquor the following information: 251d §§ 1214d-12l4f] mTOXICATING LIQUORS [Art. 113 JSTame and address of the consignor or seller, name and address of the consignee, kind, and quantity of such liquor contained therein. A consignee shall not accept nor receive any package containing any intoxicating liquor upon which there appears a statement known to him to he false, and no carrier nor other person shall consign, ship, transport or deliver any such package, knowing such statement to be false. ITo person shall give to any carrier or any officer, agent or person acting or assuming to act for such carrier an order requir- ing the delivery to any person of any intoxicating liquor or pack- age containing such liquor consigned to, or purporting or claimed to he consigned to a person, when the purpose of the order is to enable any person not an actual bona fide consignee to obtain such liquor. (Added by L. 1921, ch. 155, in effect April 4, 1921.) § 1214-d. Illegal advertisements in respect of intoxicating liquor. No person shall advertise anywhere, or by any means or method, intoxicating liquor, or the manufacture, sale, keeping for sale or furnishing of the same, or where, how, from whom or at what price the same may be obtained. !N^o one shall permit any sign or bill- board containing such advertisement to remain upon one's prem- ises. But nothing in this section shall prohibit manufacturers and wholesale druggists holding permits to sell intoxicating liquor from furnishing price lists, with description of such liquor for sale, to persons permitted to purchase such liquor, or from adver- tising alcohol in business publications or trade journals circulating generally among .manufacturers of lawful alcoholic perfumes, toilet preparations, flavoring extracts, medicinal preparations and like articles. (Added by L. 1921, ch. 155, in effect April 4, 1921.) § 1214-e. Unlawful utensils, et cetera, for manufacture. ISTo person shall advertise, manufacture, sell or possess for sale any utensil, contrivance, machine, preparation, compound, tablet, substance, formula, direction or recipe advertised, designed or in- tended for use in the unlawful manufacture of intoxicating liquor. (Added by L. 1921, ch. 155, in effect April 4, 1921.) § 1214-f. Unlawful solicitation of orders. ISTo person shall solicit or receive, or knowingly permit his em- ployee to solicit or receive, from any person any order for intoxi- cating liquor or give any information of how such liquor may be obtained in violation of this article. (Added by L. 1921, ch. 155, in effect April 4, 1921.) 251e Art. 113] INTOXICATING LIQUOKS [§§ 1214g-12UI § 1214-g. Maintenance of place where violations are com- mitted. No person shall maintain any room, house, building, boat, vehicle, structure or place where intoxicating liquor is manufac- tured, sold, given away, kept or bartered in violation of this article, and all intoxicating liquor and property kept and used in main- taining the same is hereby declared to be a common nuisance, and any person who maintains such a comnaon nuisance shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than one thousanc^ dollars or be imprisoned for not more than one year, or both. If a person has knowledge or reason to believe that his room, house, building, boat, vehicle, structure or place is occupied or used for the manufacture or sale of such liquor contrary to the provisions of this article, and suffers the same to be so occupied or used, such room, house, build- ing, boat, vehicle, structure or place shall be subject to a lien for and may be sold to pay all fines and costs assessed against the person guilty of such nuisance for such violation, and any such lien may be enforced by action in any court having jurisdiction. (Added by L. 1921, ch. 155, in effect April 4, 1921.) § 1214-h. Possession or taking orders in violation of article. No person shall, with intent to effect a sale of intoxicating liquor by himself, his employee, servant or agent, for himself or any per- son, company or corporation, keep or carry around on his person, or in a vehicle, or other conveyance whatever, or leave in a place for another to secure, any intoxicating liquor, or travel to solicit, or solicit, or take, or accept orders for the sale, shipment or de- livery or intoxicating liquor, in violation of this article. (Added by L. 1921, ch. 155, in effect April 4, 1921.) § 1214-i. Nonbeverage preparations. The articles enumerated in this section after having been manu- factured and prepared for the market, shall not be subject to the provisions of this article, if they correspond with the following descriptions and limitations, 'namely : 1. Denatured alcohol or denatured rum produced and used as provided by laws and regulations now or hereafter in force. 2. Medicinal preparations manufactured in accordance with for- mulas prescribed by the United States Pharmacopoeia, National Formulary or the American Institute of Homeopathy that are unfit for use for beverage purposes. 3. Patented, patent, and proprietary medicines that are unfit for use for beverage purposes. 4. Toilet, medicinal, and antiseptic preparations and solutions that are unfit for use for beverage purposes. 251f § 1215] INTOXIOATIITG LIQUOKS [Art. 113 5. Flavoring extracts and syrups that are unfit for use as a beverage or for intoxicating beverage purposes. 6. Vinegar and preserved sweet cider. Provided, however, that any person who shall knowingly sell any of the articles mentioned in subdivisions one, two, three or four of this section for beverage purposes, or any extract or syrup for intoxicating beverage purposes, if the article, extract or syrup contains one-half of one per centum or more of alcohol by volume, shall be guilty of a violation of section twelve hundred and twelve and punishable accordingly. (Added by L. 1921, ch. 155, in effect April 4, 1921.) § 1215. Register of permit. 1. Every person holding a permit from the authorities of the United States under the national prohibition act shall, within thirty days after this article takes effect, and every person there- after obtaining any such permit shall, within ten days after obtain- ing the same, exhibit or cause to be exhibited such permit to the county clerk of the county in which he resides if he be a resident of the state, and if he be a nonresident with the secretary of state, and at the same time deliver a true copy thereof to such of&cer. Such officer shall keep a record of such permits and register therein the name and address of each person to whom such a permit is issued, the date of the permit, the date of its expiration, and a brief description of the nature of the permit, and shall file such copy in his office. Upon the suspension or revocation of any such permit, the person to whom such permit was issued shall, within five days after such suspension or revocation takes effect, serve upon the officer by whom such registration is made, either psr- sonally or by mail, a written notice of such suspension or revoca- tion, which shall be noted by such officer on such record. The officer shall be entitled to collect a fee of one dollar for making the registration provided for in this section. Such register and copies of permits filed as herein provided shall be open to public inspection at all times during office hours. 2. The permit referred to in subdivision one of this section means what is commonly known as the " basic " permit and does not include a subsidiary or installment permit, for a particular transaction, issued to the holder of the basic permit ; but any other provision of this article which refers to a permit, except as to the registration thereof, shall be deemed to mean each and every per- mit required by act of congress to authorize the ti-an^flction to which such provision relates. (Added by L. 1921, ch. 155, in effect April 4, 1921.) 251s '■a Art. 113] INTOXICATING LIQUORS [§§1216, 1217 § 1216. Possession as evidence, burden of proof. The possession of liquors by any person not legally permitted under this article to possess liquor shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished or otherwise disposed of in violation of the provisions of this article ; and the burden of proof shall be upon the possessor in any action concerning the same to prove that such liquor was lawfully acquired, possessed and used- (Added by L. 1921, ch. 155, in effect April 4, 1921.) § 1217. Injunction proceedings. 1. A person who shall maintain a common nuisance, as defined by section twelve hundred and fourteen-g of this chapter, may be enjoined from maintaining such nuisance in the manner prescribed in this section. The attorney-general or the district attorney of the county in which the nuisance is maintained may present a verified petition to a justice of the supreme court or a special term of the supreme court of the judicial district in which such county is situated, or the county court or judge of such county, for an order enjoining the maintenance of such nuisance. Such petition shall state the facts upon which such application is based. Upon the presentation of the petition the justice, judge or court shall grant an order requiring such person to appear before such justice, judge or court, or before a special term of the supreme court of the judicial district, on the day specified therein not more than ten days after the granting thereof, to show cause why such person should not be permanently enjoined from maintaining the nuisance, describing it. A copy of such petition and order shall be served upon the person, in the manner directed by such order not less than five days before the return day thereof. On the day specified in such order, the justice, judge or court before whom the same is returnable shall hear the proofs of the parties and may, if deemed necessary or proper, take testimony as to the allegations of the petition. If the judge, justice or court is satisfied that such person maintains a common nuisance as defined by this article and as alleged in the petition, an order shall be granted enjoining such person thereafter from maintaining such miisance. It shall not be necessary for the court or judge to find that the property involved ■was being unlawfully used at the time of the hearing. On finding that the material allegations of the petition are true the court shall order that no intoxicating liquor shall be manufactured, sold, bartered or stored in the room, bouse, building, boat, vehicle, stmeture or place to which the proceeding relates, or any part thereof The court or judge also may order that such room, house, building, structure, boat, vehicle or place shall not be occupied or 251h § 1218] INTOXICATIJS^G LIQUOES. [Art. 113 used for one year thereafter, or that it shall not be occupied or used during such period for other than dwelling purposes ex- clusively; or the court, in its discretion, may permit it to be occu- pied or used for any lawful purpose if the owner, lessee, tenant or occupant thereof shall give bond, with sufficient surety to be approved by the judge or court making the order, in the penal and liquidated sum of not less than five hundred dollars nor more than one thousand dollars payable to the people of the state and con- ditioned that intoxicating liquor will not thereafter be manufac- tured, sold, bartered, kept or otherwise disposed of therein or thereon and that he will pay all fines, costs and damages that may be assessed for any violation of the provisions of this article upoa such property. A violation of the order made in such proceeding, after such service thereof or of notice of entry as the court or judge may direct, is a contempt of court, punishable as provided in the judiciary law. Costs upon the application for such injunction may be awarded in favor of and against the parties thereto in such sums as in the discretion of the justice, judge or court may seem proper. No bond shall be required to institute any proceeding under this section. 2. Any person who shall with intent to effect a sale of liquor, by himself, employee, servant or agent, for himself or any person, company or corporation, keep or carry around on his person, or in a vehicle or other conveyance whatever or leave at any place for another to secure any intoxicating liquor or who shall travel to solicit, or solicits, or take or accept orders for the sale, shipment or delivery of liquor in violation of the provisions of this article also may be enjoined, in a proceeding taken as provided in subdi- vision one of this section, from doing or continuing to do any of such acts or things. In a proceeding under this subdivision it shall not be necessary to show any intention on the part of the accused to continue such violations if the proceeding is brought within sixty days after they occurred. (Added by L. 1921, ch. 155, in effect April 4, 1921.) § 1218. Penalties. Any person violating any provision of this article for which a penalty has not been specifically provided herein, shall upon con- 251 i Art. 113] INTOXICATING LIQUOKS [§ 1218 viction for the first offense be punished by a fine of not more than five hundred dollars and upon conviction for the second offense shall be punished by a fine of not less than one hundred dollars nor more than one thousand dollars, or imprisonment for not more than ninety days ; and for any subsequent offense, by a fine of not less than five hundred dollars and imprisonment for not less than thres months nor more than two years. (Added by L. 1921, ch. 155, in effect April 4, 1921.). 251j §§ 1220-1221 INTOXICATION Art 114 ARTICX.E 114. INTOXICATIOIT. Section 1220. Intoxication as a detenso. 1221. lnto.R Art. 118 KIDNAPPING § 1250 ABTICIiE 118. KIDNAFPrNG. Section 1250. Kidnapping' defined. 1251. Indictment for kidnapping, where triable. 1252. Consent of Kidnapped person. 1253. Selling services of person kidncpped. 1254. Removing from this state persons held to service in another state. 1255. Penalty imposed on judicial officers. § 1250 Kidnapping defined. A person who wilfully: 1. Seizes, confines, inveigles, or kidnaps another, with intent to cause him, without authority of law, to be secretly confined or imprisoned within this state, or to be sent out of the state, or to be sold as a slave, or in any way held to service or kept or detained, against his will ; or, 2. Leads, takes, entices away, or detains a child under the age of sixteen years, with intent to keep or conceal it from its parents, guardian, or rther person having the lawful care or control thereof, or to extort or obtain money or reward for the return or disposi- tion of the child, or with intent to steal any article about or on the person of the child ; or, 3. Abducts, entices, or by force or fraud unlawfully takes, or carries away another, at or from a place without the state, or pro- cures, advises, aids or abets such an abduction, enticing, taking, or carrying away, and afterwards sends, brings, has or keeps such person, or causes him to be kept or secreted within this state, Is guilty of kidnapping, which is a felony and is punishable, if a parent of the person kidnapped, by imprisonment for not more than ten years and, if a person other than a parent of the person kidnapped, by imprisonment for not less than ten years nor more than fifty years. (Amended by L. 1909, ch. 246; L. 1911, ch. 625, in eilect Sept. 1, 1911.) Derivation: Penal Code, § 211(2), as amended L. 1S88, ch. 145, § 3; Penal Code, § 211 (3), as amended L. 1907, ch. 683, § 1. Hadden v People (1862), 25 N. Y. 373; Kauffman v. People (1877), 11 Hun, 82; People v. Navagh (1886), 4 N. Y. Cr. 289, 41 Hun, 188; People v. De Leon (1888), 109 N Y. 228, 4 Am. St. Rep. 444, afE'g 47 Hun, 308; Peo- ple V. Fltzpatric^ (1890), 57 Hun, 459, 10 N. Y. Supp. 629, 8 N. Y. Cr. 81; People v. Camp (1893). 139 N. Y. 87, sfl'g 66 Hun, 531, 21 N Y. Supp. 741; Matter of Marceau (1900), 32 Misc. 217, 65 N. Y. Supp. 717; People v. 257 §§ 1251-1253] KIDNAPPING [Art. 118 Panyko (1902), 71 App. Div. 324, 75 N. Y. Supp. 945; see also People v. Brunnell, 18 How. Pr. 443; Carpenter v. People, 8 Barb. 603; Mandeville v. Guernsey, 51 Barb. 99; People v. Tinsdale, 10 Abb. Pr. (N. S.) 374; Moody v. People, 20 111. 315; State v. Rollins, 8 N. H. 550; Nutt v. State, 19 Tex. 340; Manes v. State, 20 Tex. 38 ; United States v. Ancarola, 1 Fed. 676, 17 Blatehf. 423; Com. i-. Brooks, 9 Gray, 299. § 1250-a. Enticing inmates from public institutions. Any person who shall entice away or assist to escape an inmate of any public charitable institution or custodial asylum or institu- tion for the feeble-minded, idiots, epileptics or insane, or a reform- atory or reform school, or knowing such person to be such inmate promises to provide a home for or to pay for the service of or to marry such inmate, or who shall keep or harbor any such inmate for the purposes above mentioned without the consent or approval of the board of managers of the institution in which such inmate was kept, shall be guilty of a misdemeanor. (Added by L. 1916, ch. 320, in effect April 26, 1916.) § 1251. Indictment for kidnapping, where triable. An indictment for kidnapping may be tried either in the county in which the offense was committed, or in any county through or in which the person kidnapped or confined was taken or kept, while under confinement or restraint. Derivation : Penal Code, § 212. § 1252. Consent of kidnapped person. Upon a trial for a violation of this article, the consent thereto of the person kidnapped or confined shall not be a defense, unless it appears satisfactorily to the jury that such person was above the age of twelve years, and that the consent was not extorted by threats or duress. Derivation : Penal Code, § 213. People V. De Leon (1888), 109 N. Y. 228, 8 N. Y. Or. 78, alT'g 47 Hun, 308. § 1253. Selling services of person kidnapped. A person who, within this state or elsewhere, sells or in any manner transfers, for any term, the services or labor of any person 258 Art. 118] KIDNAPPING [§§ 1254-1255 who has been forcibly- taken, inveigled, or kidnapped in or from this state, is punishable by imprisonment in a state prison not exceeding ten years. Derivation: Penal Code, § 214. § 1254. Removing from this state persons held to service in another state. A person claiming that he or another is entitled to the services of a person alleged to be held to labor or service in a state or territory of the United States who, except as authorized by special statute, takes, or removes, or wilfully does any act tending towards removing from this state any such person, is guilty of felony, punishable by imprisonment in the state prison not exceeding ten years, and by a penalty of five hundred dollars, recoverable in a civil action by the party aggrieved. Derivation: Penal Code, § 215. § 1255. Penalty imposed on judicial officers. A judge, or other public officer of this state who grants or issues any warrant, certificate or other process, in any proceeding for the removal from this state of any person claimed as held to labor or service in a state or territory of the United States, except in pursuance of the statutes of this state, is guilty of a misdemeanor ; and in addition to the punishment therefor prescribed by law, he forfeits five hundred dollars to the party aggrieved, recoverable in a civil action. Derivation: Penal Code, § 216. 259 §§ 1270,1271 LABOK Art. 120 ARTICLE 120. LABOR. Section 1270. Refusal to admit inspector to mines, tunnels, and quarries; failure to comply wilh requirements of inspector. 1271. Hours of labor to be required. 1272. Payment of wages. 1273. Failure to furnish seats for female employees. [Repealed.] 1274. No fees to be charged for services rendered by free public employment bureaus. 1275. Violationo of provisions of labor law; the industrial code; the rules, regulations or orders of the industrial commissioner and industrial board. 1276. Negligently furnishing insecure scaffolding.- 1277. Neglect to complete or plank floors of buildings constructed in cities. 1278. Fraudulent representation in labor organizations. § 1270. Refusal to admit inspector to mines, tunnels, and quarries; failure to comply with requirements of inspector. A person : 1. Refusing to admit the industrial commissioner, or any person authorized by him, to a mine, tunnel or quarry, and to each and every part thereof, for the purpose of examination and inspec- tion ; or, 2. Neglecting or refusing to comply with the provisions of article fifteen of the labor law upon written notice of the industrial commissioner, Is guilty of misdemeanor, and upon conviction therefor shall be punished by a fine of not less than fifty dollars, or by imprison- ment for not less than thirty days. (Amended by L. 1921, ch. 68, in effect March 9, 1921.) Derivation: Penal Code, § 384g, added L. 1897, ch. 416, § 3, and amended L. 1906, ch. 521, § 1. § 1271. Hours of labor to be required. Any person or corporation : 1. "Who, contracting with the state or a municipal corporation, shall require more than eight hours work for a day's labor ; or, 2. Who shall require more than ten hours labor, including one-half hour for dinner, to be performed within twelve con- secutive hours, by the employees of a street surface and elevated railway owned or operated by corporations whose main line of travel or routes lie principally within the corporate limits of cities of more than one hundred thousand inhabitants ; or, 260 Art 120 LABOE " § 1272 3. Who shall require the employees of a corporation owning or operating a hrick yard to work contrary to the requirements of section one hundred and sixty-three of the labor law ; or, 4. Who shall require or permit any employee engaged in or connected with the movement of any train of a corporation operat- ing a line of railroad of thirty miles in length, or over, in whole or in part within this state, to remain on duty more than sixteen consecutive hours ; or to require or permit any such employee who has been on duty sixteen consecutive hours to go on duty without having had at least ten hours off duty; or to require or permit any such employee who has been on duty sixteen hours in the aggregate in any twenty-four hour period to continue on duty or to go on duty without having had at least eight hours off duty within such twenty-four hour period; except when by casualty occurring after such employee has started on his trip, or by unknown casualty occurring before he started on his trip, and except when by accident or unexpected delay of trains scheduled to make connection with the train on which such employee is serv- ing, he is prevented from reaching his terminal ; Is guilty of a misdemeanor, and on conviction therefor shall be punished by a fine of not less than five hundred nor more than one thousand dollars for each offense. (Amended by L. 1916, ch. 151; L. 1921, ch. 68, in effect March 9, 1921.) Derivation: Penal Code, § 384h, added L. 1897, ch. 416, § 3; amended I<. 1907, ch. 506, § 1. People V. Orange County Road Construction Co. (1903), 175 N. Y. 84, 17 N. Y. Cr. 14, rev'g 73 App. Div. 580, 77 N. Y. Supp. 16, aff'g 37 Misc. 341, 75 N. Y. Supp. 510, 16 N. Y. Cr. 318; People ex rel. Cossey v. Grout (1904), 179 N. Y. 422; People v. Williams (1907), 189 N. Y. 131, affg 116 App. Div. 379, 100 N. Y. Supp. 337, 101 N. Y. Supp. 562, 51 Misc. 385; see also Street v. Varney, etc., Co., 61 L. R. A. 154; Greenwich v. Carroll, 125 Fed. 128. § 1272. [Am'd, 1909.J Payment of wages. A corporation or joint stock association or person carrying on the business thereof, by lease or otherwise, who does not pay the wages of all its employees in accordance with the provisions of the labor law, is guilty of a misdemeanor, and upon conviction therefor, shall be fined not less than one hundred nor more than ten thousand dollars for each offense. An indictment of a person 261 §§ 1373-1275 LABOK Art. 120 or corporation operating a steam surface railroad for an offenae specified in this section may be found and tried in any county within the state in which such railroad ran at the time of suoh offense. BeriTation: Penal Code, § 384i, added L. 1897, ch. 416, { 3. Am'd by L. 1909, ch. 205. In effect April 17, 1909. People V. Schermerhorn (1908), 59 Misc. 149, 112 N. Y. Supp. 222. § 1273. Failure to furnish seats for female employees. (Repealed by L. 1913, ch. 349, in effect April 22, 1913.) DeriTation: Penal Code, § 384j, added L. 1897, ch. 416, 9 3. § 1274. No fees to be charged for services rendered by free public employment bureaus. A person connected with or employed in a free public employ- ment bureau, who shall charge or receive directly or indirectly any fee or compensation from any person applying to suoh bureau for help or employment, is guilty of a misdemeanor. DeriTation: Penal Code, § 384k, added L. 1897, cli. 416, § 3. § 1275. Violations of provisions of labor law; the industrial code ; the rules, regulations or orders of the industrial commis- sioner and industrial board. Any person who violates or does not comply with any provision of the labor law, any provision of the industrial code, any rule, regulation or lawful order of the industrial commissioner or indus- trial board, and any person who knowingly makes a false statement in or in relation to any application made for an employment certificate as to any matter required by the labor law to appear in any affidavit, record, transcript or certificate therein provided for, is guilty of a misdemeanor and upon conviction shall be punished, 262 Art. 120 LABOR § 1276 i except as in this chapter otherwise provided, for a first offense by a fine of not less than twenty nor more than fifty dollars ; for a second offense by a fine of not less than fifty nor more than two hundred and fifty dollars, or by imprisonment for not more than thirty days or by both such fine and imprisonment; for a third offense by a fine of not less than two hundred fifty dollars, or by imprisonment for not more than sixty days, or by both such fine and imprisonment. (Amended by L. 1911, ch. 749; L. 1912, ch. 383; L. 1913, ch. 349; L. 1921, ch. 68, in effect March 9, 1921.) DerlTation: Penal Code, § 3841, added L. 1897, eh. 416; amended L. 1903, ch. 380, § 1 ; L. 1907, oh. 506, § 2. People V. Orange Co. Eoad Const. Co. (1903), 175 N. Y. 94, rev'g 73 App. Div. 581, 77 N. Y. Supp. 16, aff'g 37 Misc. 341, 75 N. Y. Supp. 510; People t. Loclmer (1904), 177 N. Y. 145, aflf'g 73 App. Div. 120, 76 N. Y. Supp. 396; Gallenkamp v. Garvin Machine Co. (1904), 91 App. Div. 147, 86 N. Y. Snpp. 378; Sitts V. Waiontha Knitting Co. (1904), 94 App. Div. 45, 87 N. Y. Supp. 911; People V. Williams (1906), 51 Misc. 385, 100 N. Y. Supp. 337; People V. Williams (1907), 189 N. Y. 131, aff'g 116 App. Div. 379, 100 N. Y. Supp. 510; Graves v. Stickley Co. (1908), 125 App. Div. 136, 109 N. Y. Supp. 266. § 1276. Negligently furnishing insecure scaffolding. A person or coi^oration employing or directing another to do or perform any labor in the erection, repairing, altering or paint- ing, any house, building or structure within this state, who know- ingly or negligently furnishes or erects or causes to be furnished or erected for the performance of such labor, unsafe, unsuitable or improper scaffolding, hoists, stays, ladders or other mechanical contrivances ; or who hinders or obstructs any officer detailed to inspect the same, destroys or defaces any notice posted thereon, or permits the use thereof after the same has been declared unsafe by such ofScer contrary to the provisions of article ten of the labor law, is guilty of a misdemeanor. (Amended by L. 1921, ch. 68, in effect March 9, 1921.) Derivation: Penal Code, § 447a, added L. 1893, ch. 692, § 2; amended L. 1897, ch. 416, § i. Wingert v. Krakauer (1902), 76 App. Div. 34, 78 N. Y. Supp. 664. 263 §§ 1277-1278 LABOE Srt. 120 § 12T7. Neglect to complete or plank floors of buildings con- structed in cities. A person, constructing a building in a city, as owner or con- tractor, who violates the provisions of article ten of the labor law, relating to the completing or laying of floors, or the planking of such floors or tiers of beams as the work of construction progresses, is guilty of a misdemeanor, and upon conviction therefor shall be punished by a fine for each offense of not less than twenty-five nor more than two hundred dollars. (Amended by L. 1921, ch. 68, in effect March 9, 1921.) Derivation: Penal Coda, § 447c, added L. 1807, ch. 416, § 2. § 1278. Fraudulent representation in labor organizations. Any person who represents himself or herself to be a mem- ber of, or who claims to represent a labor organization which does not exist within the state, at the time of such representa- tion, or iwho has in his or her possession a credential, certifi- cate or letter of introduction bearing a fraudulent seal, or bearing the seal of a labor organization which has ceased to exist, and does not exist at the time of such representation, and attempts to gain admission by the use of said credential, certificate or letter of introduction, as a member of any convention, or meeting of repre- sentatives of labor organizations of the state, shall be guilty of a misdemeanor and upon conviction thereof shall be punishable by a fine of not less than twenty dollars nor more than fifty dollars, and imprisonment for not less than ten days nor more than thirty days in the jail of the county wherein such conviction is had, or by both such fine and imprisonment. Derivation: L. 1898, ch. 671. 264 Art 122] LARCENY [§ 1280 ARTICLE 122. I.ARCENT. Sbctior 1290. Larceny defined. 1291. Severauue of fixture from realty, larceny. 1292. Completed unissued instruments, property. 1293. Obtaining money or property by fraudulent draft. 1293a. Unautliorized use of vehicles. 1293b. Obtaining property or credit by upp of false statements. 1294. Grand larceny in first degree. 1295. Grand larceny in first degree; how punished. 1296. Grand larceny in second degree. 1297. Grand larceny in second degree; how punished. 129a Petit larceny defined. 1299. Petit lajceny a misdemeanor. 1300. Appropriating lost property. 1301. Bringing stolen goods into state, larceny. 1302. Conversion of property heldj in trust or by virtue of office, lar* oeny; how pujiished. 1303. VaJue :riva(ion: Penal Code, § 254a, added L. 1890, ch. 340, § 1, and amended L. 1894, ch. 626, § 1. bchoepflin v. Coffey (1900), 163 N. Y. 12, rev'g 25 App. Div. 438, 49 N. Y. Supp. 627; People v. Sherlock (1901), 1«6 N. Y. 187. 15 N. Y. Cr. 412, aff'g 56 App. Div. 422, 68 2Sr. Y. Supp. 74. § 1353. Furnishing false information. Any person. who knowingly and wilfully states, delivers or trans- mits by any means whatever to any manager, editor, publisher, reporter or other employee of a publisher of any newspaper, maga- zine, publication, periodical or aerial, any false and untrue state- ment of a fact concerning any person or corporation, with intent that tha same shall be published, is guilty of misdemeanor. (Added by L. 1920, ch. 509, in effect Sept. 1, 1920.) 287 S 1360] LOGS [Art. 128 ARTICLE 128. I.OGS. Section 1360. Floating logs or defacing marks thereon. § 1360. Floating logs or defacing marks thereon. A person who : 1. Floats, runs or assists in floating or running any lumber, logs or other timber upon or over any river not excepted by law, within this state, recognized by law or use as a public highway for the purpose of floating and running lumber, logs and other timber therein, without first filing the bond executed and ap- proved as required by law ; or, 2. Unlawfully cuts out, alters or defaces any mark made upon any log or lumber, whether such mark be recorded or not, or puts a false mark upon any log or lumber floating in any of the waters of this state or lying upon land. Is guilty of a misdemeanor. Derlvatloa: Penal Code, { 373, aa amended L. 1S93, eli. 092, { L 288 Art. 130] LOTTERIES [| 1370 ARTICLE 130. I^OTTEBIES. BKcnon 1370. Lottery defined. 1371. Lottery unlawful and a public nuisance. 1372. Contriving, drawing, and assisting in a lottery. 1373. Selling lottery tickets. 1374. Advertising lotteries. 1375. Advertisements by persona out of the state. 1376. Offering property for disposal dependent upon the drawing tjt any lottery. 1377. Keeping a lottery office. 1378. Insuring lottery tickets. 1379. Advertising to insure lottery tickets. 1380. Property offered for disposal in lotteries, forfeited. 1381. Letting building for lottery purposes. 1382. Lotteries out of this state. 1383. Money paid for lottery tickets may be recovered by action. 1384. Prizes in lotteries, forfeited. 1385. Certain transfers of property in pursuance of lottery, void. 1386. Contracts, agreements and securities on account of raffling, void, § 1370. Lottery defined. A " lottery " is a scheme for the distribution of propasty by chance, among persons who have paid or agreed to pay a valuable consideration for the chance, whether called a lottery, rajB9e, or gift enterprise or by some other name. Derivation: Penal Code, S 323. Hull V. Ruggles (1874), 56 N. Y. 424, aff'g 1 Th. Ac. 18, 66 Barb. 432; Grover v. Morris (1878), 73 N. Y. 473; Wilkinson v. Gill (1878), 74 N. Y. 66, 30 Am. Rep. 264, aff'g 10 Hun, 156; People v. Noeike (1883), 94 N. Y. 137, 46 Am. Rep. 128; Kohn v. Koehler (1884), 96 N. Y. 362, 48 Am. Rep. 628, rev'g 21 Hun, 466; People v. Runge (1885), 3 N. Y. Or. 85; Reilly v. Gray (1894), 77 Hun, 402, 28 N. Y. Supp. 811; People v. Wolff (1897), 14 App. Div. 73, 43 N. Y. Supp. 421, 12 N.Y. Or. 80; People ex rel. Lawrence v. Fallon (1897), 162 N, Y. 12, 12 N.Y.Cr. 107, aff'g 4 App. Div. 82,39 N.Y. Supp. 865; People ex rel. Ellison ▼. Lavin (1904), 179 N. Y. 164, 18 N. Y. Cr. 485, rev'g 93 App. Div. 292, 87 N. Y. Supp. 776; Matter of CuUinan (1906), 114 App. Div. 654, 99 N. Y. Supp. 1099, 20 N. Y. Cr. 327; see also Ahny v. McEinney, 5 N. Y. St. 267; Negley v. Devlin, 12 Abb. Pr. (N. S.) 210; Kellowstone Kit. v. State, 88 Ala. 196, 16 Am. Rep. 38, 41 Alb. L. J. 392; Matter of Shobert, 70 Cat 289 §§ 1371-1373] LOTTEKIES [Art. 130 632, 59 Am. Eep. 432; Ballock v. State, 73 Md. i, 8 L. R. A. 671; Com. y. Wright, 137 Mass. 250, SO Am. Eep. 306; People v. Elliott, 74 Mich. 264, 36 Am. St. Kep. 640, 3 L. K. A. 403, note; People v. Eeilly, 50 Mich. 384; 45 Am. Kep. 47; State v. Munford, 73 Mo. 647, 39 Am. Rep. 532; State v. Shorts, 32 N. J. L. 398, 90 Am. Dec. 668; Holoman v. State, 2 Tex. Ct. App. 610, 8 Am. Eep. 439; Horner v. United States, 147 U. S. 449. § 1371. Lottery unlawful and a public nuisance. A lottery is unlawful and a public nuisance. Derivation: Penal Code, § 324. People V. Gillson (1888), 109 N. Y. 404; Goodrich v. Houghton (1892), 134 N. Y. 115, aff'g 55 Hun, 526, 9 N. Y. Supp. 214; see also Moore v. Sate, 48 Miss. 147, 12 Am. Eep. 367; Matter of Blanchard, 9 Nev. 101; Stone ▼. State, 101 U. S. 814; New Orleans v. Houston, 119 U. S. 266. § 1372. Contriving, drawing, and assisting in a lottery. A person who contrives, proposes or draws a lottery, or assists in contriving, proposing or drawing the same, is punishable by imprisonment for not more than two years, or by fine of not more than one thousand dollars, or both. Derivation: Penal Code, § 325. Matter of Dwyer (1894), 14 Misc. 204, 35 N. Y. Supp. 884; People t Pickert (1004), 96 App. Div. 637, 89 N. Y. Supp. 183. % 1373. Selling lottery tickets. A person who sells, gives, or in any way whatever furnishes or transfers, to or for another, a ticket, chance, share, or interest, or any paper, certificate, or instrument, purporting to be or to represent a ticket, chance, share, or interest, in or dependent upon the event of a lottery, to be drawn within or without this state, is guilty of a misdemeanor. Derivation; Penal Code, S 326. Pickett V. People (1876), 8 Hun, 83, afT'd 67 N. Y. 609; People v. Noelke (1883), 94 N. Y. 137, 46 Am. Eep. 218; People v. Hooghkerk (1884), 9(1 K. Y. 149, 67 How. Pr. 264; People v. Emerson. (1888), 6 N. Y. Cr. 157, 5 N. Y. Supp. 374; Goodrich v. Houghton (1802), 134 N. Y. 115, aff'g 55 Hun, 626, 9 N. Y. Supp. 214; Matter of Blum (1894), 9 Misc. 571, 30 N. Y. Supp. 396; People v. Jones (1895), 89 Hun, 12, 35 N. Y. Supp. 01; see also State v. Moore, 64 N. H. 9, 56 Am. Eep. 478 ; Com. v. Bierman, 13 Bush. 345. 290 Art. 130] LOTTEKIES [§§ 1374-1376 § 1374. Advertising lotteries. A person who, by writing or printing, or by circular or letter, or in any other way, advertises or publishes an account of a lot- tery, whether within or without the state, stating how, when or where the same is to be, or has been, drawn, or what are the prizes therein, or any of them, or the price of a ticket, or any share or interest therein, or where or how it may be obtained, is guilty of a misdemeanor. Serivatioc: Penal Code, § 327. Ormes v. Dauchy (1880), 82 N. Y. 443, 37 Am. Eep. 583, aff'd 45 N. Y. Super. 85; Hart v. People (1882), 26 Hun, 396; People v. England (1882), 27 Hun, 139; People ex rel. Ellison v. Lavin (1904), 179 N. Y. 164, rev'g 93 App. Div. 292, 87 N. Y. Supp. 776; Matter of CuIIinan (1906), 114 App. Div. C58, 99 N. Y. Supp. 1097; see also People v. Charles, 3 Den. 212, 1 N. Y. 180; Hudelson v. State, 94 Ind. 426, 48 Am. Rep. 171; State v. Kaub, 15 Mo. App. 433; Public Clearing House v. Coyne, 94 U. 8. 497. § 1375. Advertisements by persons out of the state. The provisions of sections thirteen hundred and seventy-four and thirteen hundred and seventy-nine are applicable, whenever the advertisement was published, or the letter or circular sent or de- livered through or in this state, though the person causing or procuring the same to be published, sent or delivered, was out of the state at the time of so doing. Derivation: Penal Code, { 336. People ex rel. Madden t. Dycker (1902), 72 App. Div. 308-313, 76 V. Y. Supp. HI. § 1376. Offering property for disposal dependent upon the drawing of any lottery. A person who offers for sale or distribution, in any way, real or personal property, or any interest therein, to be determined by lot or chance, dependent upon the drawing of a lottery within or without this state, or who sells, furnishes, or procures, or causes to be sold, furnished, or procured, in any manner, a chance or share, or any interest in property offered for sale or distribution, in violation of this article, or a ticket or other evidence of such a chance, share, or interest, is guilty of a misdemeanor. Derivation: Penal Code, § 328. People V. Pickert, 89 N. Y. Supp. 184. 291 §§ 1370-1380] LOTTERIES [Art. 130 § 1377. Keeping a lottery o£Gce. A person who opens, sets up, or keeps, by himself or anoth^ person, an office or other place for registering the numbers of tickets in a lottery within or without this state, or for making, receiving, or registering any bets or stakes for the drawing, or result of such a lottery, or who advertises or in any way publishes any account of an opening, setting up, or keeping of such an ofiSce or place, is guilty of a misdemeanor. Derivation: Penal Code, § 329. People V. Jackson, 3 Den. 101. § 1378. Insuring lottery tickets. A person who insures, or receives any consiaeration for in- suring, for or against the drawing of a ticket, share, or interest in a lottery, or of a number of such a ticket, share, or interest, or who receives any valuable consideration upon an agreement to pay money, or deliver property, in the event that a ticket, share, or interest, or a number of such a ticket, share, or interest in a lottery, shall prove fortunate or unfortunate, or shall be drawn or not drawn in a particular way or in a particular order, or who promises or agrees, or offers to pay money, or to deliver prop- erty, or to do, or forbear to do, anything for the benefit of any person, with or without consideration, upon any accident or con- tingency dependent on the drawing thereof, or of any number or ticket therein, is guilty of a misdemeanor. Derivation: Penal Code, S 330. Baldwin's Case, 3 City Hall Rec. 96; Kenney's Case, 3 City Hall Reo. 5S. § 1379. Advertising to insure lottery tickets. A person who, by writing or printing, or by circular or letter, or in any other way, advertises or publishes an offer, notice, or proposition, in violation of the last section, is guilty of a mi* demeanor. Derivation: Penal Code, S 331. § 1380. Property offered for disposal in lotteries, forfeited. All property offered for sale, or distribution, in violation of the provisions of this article, is forfeited to the people of this state, as well before as after the determination of the chance on which the same was dependent. And it is the duty of the r»- 293 Art 130] LOTTERIES [§§1381-1383 spective district attorneys, to demand, sue for and recover, in lehalf of the people, all property so forfeited, and to cause the same to be sold when recovered, and to pay the proceeds of the sale of such property, and any moneys that may be collected in any such suit, into the county treasury, for the benefit of the poor. Derivation: Penal Code, § 332. People T. Phillips (1883), 30 Hun, 563. § 1381. Letting building for lottery purposes. A person who letsy or permits to be used any building or portion of a building, knowing that it is intended to be used for any of the purposes declared punishable by this article, is guilty of a misdemeanor. Derivationi Penal Code, § 333. Edelsmith v. McGrarren, 4 Daly, 467; Michael v. Bacon, 18 Am. Rep. 138. § 1382. Lotteries out of this state. The provisions of this article are applicable to lotteries drawn or to be drawn out of this state, whether authorized or not by the laws of the state where they are drawn or to be drawn, in the same manner as to lotteries drawn or to be drawn within this state. Derivationi Penal Code, § 334. § 1383. Money paid for lottery tickets may be recovered by action. Any person who shall purchase any share, interest, ticket, cer- tificate of any share or interest, or part of a ticket, or any paper or instrument purporting to be a ticket or share or interest in any ticket, or purporting to be a certificate of any share or interest in any ticket, or in any portion of any lottery, may sue for and recover double the sum of money, and double the value of goods or things in action, which he may have paid or delivered in con- sideration of such purchase, with double costs of suit. Any person who shall have paid any money, or valuable thing, for a chance or interest in any raffle or distribution, prohibited by Ae preceding sections, may sue for and recover the same of the person to whom such payment or delivery was made. DeriTation: R. 8., pt. 1, di. 20, tit 8, §§ 25, 32. 293 §§ 1384-1386] LOTTERIES [Art 130 § 1384. Prizes in lotteries, forfeited. Any prize that shall be drawn in any lottery shall be forfeited to the use of the poor ; and it shall be the duty of the overseers of the poor of the town where the person or persons drawing such prize, or any of them, shall reside, to sue for the same, in their names; and they shall recover the same, in an action for money had and received. DeriTatiom: B. S., pt. I, ch. 20, tit. G, § 33. § 1385. Certain transfers of property in pursuance of lot- tery, void. Every grant, bargain, sale, conveyance, or transfer of any real estate, or of any goods, chattels, things in action, or any personal property, which shall hereafter be made in pursuance of any lot- tery, or for the purpose of aiding and assisting in such lottery, game or other device, to be determined by lot or chance is hereby declared void and of no effect, Berlvatian: R. S., pt. 1, ch. 20, tit. 8, § 38. § 1386. Contracts, agreements and securities on account of raffling, void. All contracts, agreements and securities given, made or executed, for or on account of any raffle, or distribution of money, goods or things in action, for the payment of any money, or other valuable thing, in consideration of a chance in such raffle or distribution, or for the delivery of any money, ffoods or things in action, so rafRed for, or agreed to be distributed as aforesaid, shall be utterly void. OerlTation-. R. 6., pt. I, cli. 20, tit. 8, S 24. 294 Art. 132] MAIMING [§§ 1400-1402 ARTICLE 132. MAIMING. Section 1400. Maiming defined; punishment. 1401. VVlmt injury may constitute maiming. 1402. Maiming one's self to escape performance of a duty. 1403. Maiming one's self to obtain alms. 1404. Subsequent recovery of injured person, when a defense. § 1400. Maiming defined; punishment. A person who wilfull;y, with intent to commit felony, or to in- jure, disHgure or disable, iiiiiiets upon the person of another an injury which: 1. Seriouly disfigures his person by any mutilation thereof; or, 2. Destroys or disables any member or organ of his body; or, 3. Seriously diminishes his physical vigor by the injury of any member or organ, Is guilty of maiming, and is punishable by imprisonment for a term not exceeding fifteen years. The infliction of the injury is presumptive evidence of the intent. DeriTation: Penal Code, § 200, as amended L. 1892, ch. GG2, § 5. Foster v. People (1892), 50 N. Y. 598; Burke v. People (1875), 4 Hun, 481; Godfrey v. People (1875), 63 N. Y. 207, rev'g 5 Hun, 3G9; Tully v. People (1876), 67 N. Y. 15; People v. Dankberg (1904), 91 App. Div. 68, 86 N. Y. Supp. 423. § 1401. What injury may constitute maiming. To constitute maiming, it is immaterial by what means or in- strument, or in what manner, the injury was inflicted. Derivation: Penal Code, § 209. § 1402. Maiming one's self to escape performance of a duty. A person, who, with design to disable himself from performing a legal duty, existing or anticipated, inflicts upon himself an in- jury, whereby he is so disabled, is guilty of a felony. DeriTation: Penal Code, S 207 295 §§ 1403-1404] MAIMING [Art. 132 § 1403. Maiming one's self to obtain alms. A person who inflicts upon himself an injury, such as if in- flicted upon another would constitute maiming, with intent to avail himself of such injury, in order to excite sympathy, or to obtain alms, or any charitable relief, is guilty of a felony. Derlvattom: Penal Code, § 208. § 1404. Subsequent recovery of injured person, when a de- fense. Where it appears upon a trial for maiming another person, that the person injured has, before the time of trial, so far recovered from the wound, that he is no longer by it disfigured in personal appearance, or disabled in any member or organ of his body, or affected in physical vigor, no conviction for maiming can be had ; but the defendant may be convicted of assault in any de- gree. Derlvattoni Penal Code, | 210. S99 Art. 182] MALICIOUS MISCHIEF [§§ 1420-1421 ARTICLE 134. IKAUCIOUS MISCHIEF. Dbchon 1420. Damaging building or vessel by explosion. 1421. Burning crops or timber, liow punislied. 1.422. Altering signal or light for railroad or vessel. 1433, Injuring liighway boundary, pier, seawall, dock, rock, buoy, landmark, mile-board, pipe, main, sewer, machine, telegraph, or other property. 1424. False alarms of fire ; interference with flre-alarm telegraph systems. 1423. Malicious injury to and destruction of property. 1426. Malicious injury to standing crops, when a misdemeanor. 1427. Removal of books and works of art from library; wilful injury to works of art, ornamental trees or other improvements. 1428. Wilful or malicious injury to certain articles in libraries, gal- leries, museums or exhibitions. 1429. Destroying or delaying election returns. 1430. Property in house of worship. 1431. Interference with gas or electric meters or steam valves. 1432. Unlawful interference with water meters, water service pipes and their connections. 1433. Injury to property, how punished. 1434. Placing injurious substances on roads. § 1420. Damaging building or vessel by explosion. A person who unlawfully and maliciously, by the explosion of gun-powder, or any other exploeive substance, destroys or damages and building or vessel, is punishable as follows : 1. If thereby the life or safety of a human being is endangered, by imprisonment for not more than twenty-five years ; 2. In every other case by imprisonment for not more than ten years. (Amended by L. 1915, ch. 434. In effect Sept. 1, 1915.) DerlTation: Penal Code, | 636. § 1421. Burning crops or timber, how punished. A person who, under circumstances not amounting to arson in any of its degrees : 1. Wilfully burns or sets fire to any grain, grass, or growing crop, or standing timber, or to any building, fixtures or appur- tenances to real property of another ; or 2. Wilfully sets fire to, or assists another to set fire to any wild, waste or forest lands, belonging to the state or to another person whereby such forests are injured or endangered ; Is guilty of felony and is punishable by imprisonment for not more than ten years or by a fine of not more than two thousand dollars, or by both. (Amended by L. 1910, ch. 474, in effect July 1, 1910.) Derivation: Penal Code, § 637. People V. Fanshawe (1893), 137 N. Y. 75, afTg 65 Hun, 77, 19 N. Y. Supj). 865. 297 §§ 1422-1423] MALICIOUS' MISCHIEF [Art. 134 § 1422. Altering signal or light for railroad or vessel. A person who, with intent to bring a vessel, railway engine, op railway train into danger: 1. Unlawfully or wrongfully shows, masks, extinguishes, altera^ or removes a light or other signal ; or, 2. Exhibits any false light or signal, Is punishable by imprisonment for not more than ten years. Derivation: Penal Code, § 638. § 1423. Injuring highway boundary, pier, sea-wall, dock, rock, buoy, landmark, mile-board, pipe, main, sewer, machine, telegraph or other property. A peraon who wilfully or maliciously displaces, removes, in- jures, or destroys: 1. A public highway or bridge, or a private way laid out by authority of law, or a bridge upon such public or private way ; or, 2. A pier, boom, or dam, lawfully erected or maintaine'l upon any water within the state, or hoists any gate in or about such dam'; or, 3. A pile, or other material, fixed in the ground and used for securing any sea-bank or sea-walls, or the bank or dam of any river or other water, or any dock, quay, jetty, or lock; or, 4. A buoy or beacon, lawfully placed in any waters within the state; or, 5. A tree, rock, post, or other monument, which has been either er<:2ted or marked for the purpose of designating a point in the boundary of the state, or of a county, city, town, or village, or of a farm, tract, or lot of land, or any mark or inscription thereon ; or, 6. A lino of telegraph or telephone, wire or cable, pier or abut- ment, or the material or property belonging thereto, without law- ful authority, or who shall unlawfully and wilfully cut, break, tap, or make connection with any telegraph or telephone line, wire, cable or instrument, or read or copy in any unauthorized manner any message, communication or report passing over it, in this state; or who shall wilfully prevent, obstruct or delay, by any means or contrivance whatsoever, the sending, transmission, con- vejanco or delivery, in this state, of any authorized message, com- munication or report by or through any telegraph or telephone line, wire or cable, under the control of any telegraph or tele- phone company doing business in this state; or who shall aid, agree with, employ or conspire with any person or persons to unlawfully do, or permit or cause to be done, any of the acta hereinbefore mentioned, or who shall occupy, use a line, or shall knowingly permit another to occupy, use a line, a room, table, establishment or apparatus to unlawfully do or cause to be done any of the acts hereinbefore mentioned; or, 298 Art. 134] MALICIOUS MISCHIEF [§ 1424 7. A pipe or main for oonduoting gas or water, or any works erected for supplying buildings with gas or water, or any appur- tenance or appendage connected therewith; or, 8. A sewer or drain, or a pipe or main connected therewith, or forming part thereof ; or, 9. Destroys or damages with intent to destroy or render use- less any engine, machine, tool or implement intended for use in trade or husbandry, is punishable by imprisonment for not more than two years. 10. Any person who shall without authority of the corporation owning the same open any fire-hydrant, except for the purpose of extinguishing a fire, or who shall. wantonly injure or impair the same, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of ten dollars or by imprison- ment in a county jail for the term of ten days ; and it shall be the duty of all policemen, deputy sherifFs or constables to arrest any person found violating this subdivision. 11. A person who wilfully or maliciously displaces, riPtnoves, injuries or destroys a mile-board, mile-stone, danger sign or signal, or guide sign or post, or any inscription thereon, lawfully within a public highway; or who, in any manner paints, prints, places, puts or affixes, or causes to be painted, printed, placed or affixed, any business or commercial advertisement on or to any stone, tree, fence, stump, pole, building or other object, which is the property of another, without first obtaining the written consent of such owner thereof, or who in any manner paints, prints, places, puts or affixes, or causes to be painted, printed, placed or affixed, such an advertisement on or to any stone, tree, fence, stump, pole, mile- board, mile-stone, danger-sign, danger-signal, guide-sign, guide- post, bill-board, building or other object within the limits of a public highway is punisbable by a fine of not less than five dollars nor more than twenty-five dollars, or by imprisonment for not more than ten days, or by both such fine and imprisonment. Any advertisement in or upon a public highway in violation of the pro- visions of this subdivision may be taken down, removed or de- stroyed by anyone. (Amended by L. 1911, ch. 31G; L. 1915, ch. 150. In'effoct Sept. 1, 1915.) u ,-., . , DeriTation: Penal Codo, § 639 (7), ns amended L. 1802, ch. 3<2, § 1, Penal Code, § 039 (11), added L. 1899, ch. 338, § 1. Wass V. Stephens (1891), 128 N. Y. 123; Hewctt v. Newbnrger (lP9t), 141 N. Y. 538, rev'g 00 Hun, 230, 20 N. Y. Supp. 913; Pe°Pl« J[- . «^*:^ 11894), 79 Hun. 584, 29 N. Y. Supp. 894; McMoms v. Howell (lC03),bJ App. Div. 272, 85 N. Y. Supp. 1018. Ill N. Y. Supp. 204; People v. GiUies (1907), 57 Misc. 508, 109 N. Y. Supp. 943, 21 Crini. Rep. 413. § 1424. False alarms of fire; interference with fire-alarm telegraph systems. Any person who shall wilfullv s;ive any false alarm of fire, or 290 § 1425] MALICIOUS MISCHIEF [Art. 134 who shall wilfully tamper, meddle or interfere with any station or signal box of any fire-alarm telegraph system, or any auxiliary fire appliance, or who shall wilfully break, injure, deface or re- move any such box or station, or who shall wilfully break, injure, destroy, or disturb any of the wires, poles or other supports and appliances connected with or forming a part of any fire-alaira telegraph system, or any auxiliary fire appliance, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than ten dollars or by imprisonment for not less than ten days or by both such fine and imprisonment. Derivation: Penal Code, § 639a, added L. 1905, ch. 279; amended L. 1908, ch. 276. § 1425. Malicious injury to sind destruction of property. A person who wilfully : 1. Cuts down, destroys or injures any wood or timber stand- ing or growing, or which has been cut down and is lying on lands of another, or of the people of the state ; or, 2. Cuts down, girdles or otherwise injures a fruit, shade or or- namental tree standing on the lands of another, or of the people of the state ; or, 3. Severs from the freehold of another, or of the people of the state, any produce thereof, or any thing attached thereto ; or, 4. Digs, takes or carries away without lawful authority or con- sent from any lot of land in any city or incorporated village, or from any lands included within the limits of a street or avenue laid down on the map of such city or village, or otherwise recog- nized or established, any earth, soil or stone ; or, 5. Enters without the consent of the owner or occupant any orchard, fruit garden, vineyard or ground whereon is cultivated any fruit, with intent to take, injure or destroy any thing there growing or grown ; or, 6. Cuts down, destroys or in any way injuries any shrub, tree or vine being or growing vdthin any such orchard, garden, vine- yard or upon any such ground, or any building, frame work or erection thereon ; or, 7. Maliciously injuries any ice upon any water from which ice is taken as an article of merchandise with intent to injure the owner thereof, or enters or skates upon any pond or body of water not navigable, kept and used for the purpose of taking ice there- from as an article of merchandise, and upon or adjoining which a notice has been placed in a conspicuous position forbidding such sntry, and stating the purpose for which said body of water is kept or used, or puts or throws upon or into any such pond or body of water any stick, stone or other siibstance to the injury of the ice or water; or, 300 Art 134] MALICIOUS MISCHIEF [§ 1425 8. XTnlawfully takes or carries away or interferes with or disturbs by any means the oysters or other shellfish of another, legally planted or cultivated upon the bed of any river, bay, sound or water of this state, or removes, pulls up, sinks or destroys any stake or buoy desig- nated or marking out any legally planted or cultivated oyster or other shellfish bed of another, is guilty of a misdemeanor ; and any oysters or other shellfish planted or cultivated upon any beds owned or held under franchise or lease made by authority of any laws of this state or held under leases made by any town or its board of trustees or by any city of the state shall be deemed legally planted or cultivated, and any such bed shall be deemed legally marked or defined when the owner, lessee or holder thereof shall prove on the trial of any offense herein defined, that one or more stakes or buoys stood, on or near each corner of the bed embracing the planted or cultivated oysters or shell- fish within ninety days before the offense on trial was committed ; such stakes or buoys may but need not necessarily embrace more than the actual planted or cultivated bed. Evidence that any boat or vessel has been used for the purpose of taking, carrying away or interfering with such oysters shall be presumptive evidence of guilt as against the owner, master or crew of such vessel; or, (Added by L. 1914, ch. 150, in effect Sept. 1, 1914.) 9. Intrudes or places any hovel, shanty or building upon, or within the limits of any lot or piece of land within any incorporated city or village, without the consent of the owner, or within the boundaries of any street or avenue within such city or village; or, 10. Kills, wounds «r traps any bird, deer, squirrel, rabbit or other animal within the limits of any cemetery or public burying ground, or of any public park or pleasure ground, or removes the young of any such animal, or the eggs of any such bird, from any cemetery, park or pleasure ground, or exposes for sale, or knowingly buys or sells any bird or animal so killed or taken ; or, 11. Drives or leads along a public highway a wild and dangerous animal, or vthicle or engine propelled by steam, except upon a rialroad, along a public highway, or causes or directs such animal, vehicle or engine to be so driven, led or to be made to pass, unless a person of mature age shall precede such animal, vehicle or engine by at least one-eighth of a mile, carrying a red light, if in the night time, and gives warning to all persons whom he meets traveling such highway, of the approach of such animal, vehicle or engine ; or, . 11-a. [Added, 1909.] With intent so to do, damages in any man- ner an autom©bile or other motor vehicle ; or, Added by L. 1909, ch. 525. In eflFect Sept. 1, 1909. 13. Takes or attempts to take, without the consent of the owner of any lake or pond, any fish from the waters thereof, provided such lake or pond is so situated that fish can not pass thereinto from the waters of any other lake, pond or stream, either public or owned by other persons; or, without the consent of the owner of any such lake or pond, places therein any pisciv- orous fish or any poison or other substance injurious to the health 301 § 1425] MALICIOUS MISCHIEF [Art. 134 of fish, or lets the waters out of any such lake or pond, with intent to take fish therefrom or to harm fish therein ; or, 13. Injures any arsenal or armory, or its fijctures, or any uniforms, arms or equipments, or other property therein deposited; or, 14. Trespasses upon any rifle range lawfully used by or in connec- tion with the national guard of the state, or any organization, division or district thereof, or injures any target or other property situate thereon, or wilfully violates thereon any regulation established to main- tain order, preserve property or prevent accident upon such range, or removes, mutilates or destroys a battle flag, book, placard, relic or record deposited or kept in the state military bureau; or, 15. Cuts, spoils or destroys any cordage, cable, buoys, buoy-rope, head-fast or other fast fixed to the anchor or moorings belonging to any vessel, or who shall, with intent to injure, tamper in any way with the lines or cables by which any vessel is moored or made fast, or who shall, with intent to injure, tamper in any manner with the steering- gear, bell-gear, engines, machinery, lights or any other equipments of any vessel. Shall be deemed guilty of a misdemeanor. 16. Any person, who in any manner, for exhibition or display, shall place or cause to be placed, any word, figure, mark, picture, design, drawing, or any advertisement, of any nature upon any flag, standard, color, shield or ensign of the United States of America, or the state of New York, or shall expose or cause to be exposed to public view any such flag, standard, color, shield, or ensign, upon which after the first day of September, nineteen hundred and five, shall have been printed, painted or otherwise placed, or to which shall be attached, appended, affixed, or annexed, any word, figure, mark, picture, design, or drawing, or any advertisement of any nature, or who shall expose to public view, manufacture, sell, expose for sale, give away, or have in possession for Bale, or to give away, or for use for any purpose, any article, or sub- stance, being an article of merchandise, or a receptacle of merchandise or article or thing for carrying or transporting merchandise, upon which after the first day of September, nineteen hundred and five, shall have been printed, painted, attached, or otherwise placed, a representa- tion of any such flag, standard, color, shield or ensign, to advertise, call attention to, decorate, mark or distinguish, the article or substance, on which so placed, or who shall publicly mutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act, or who shall publicly use or cause any such flag, standard, color, shield or ensign, to be publicly used as a receptacle for the placini^, depositing or collecting of money or any other article or thing, shall be deemed guilty of a misdemeanor and shall also forfeit a penalty of fifty dollars for each such offense, to be recovered with costs in a civil action, or suit, in any court having jurisdic- tion, and such action or suit may be brought by or in the name of any citizen of this state, and such penalty when collected less the reasonable cost and expense of action or suit and recovery to bo certified by the district attorney of the county in which the offense is committed shall be paid into the treasury of this state ; and two or more penalties may be sued for and recovered in the same action 302 Art. 134] MALICIOUS MISCHIEF [§ 1425 or suit. The words, flag, standard, color, shield or ensign, as used in this subdivision or section, shall include any flag, standard, color, shield, ensign, or any picture or representation, of either thereof, made of any substance, or represented on any substance, and of any size, evidently purporting to be, either of, said flag, standard, color, shield, or ensign, of the United States of America, or of the state of New York, or a picture or a representation, of either thereof, upon which shall be shown the colors, the stars, and the stripes, in any number of either thereof, or by which the petson seeing the same, without delibera- tion may believe the same to represent the flag, colors, standard, shield or ensign of the United States of America, or of the state of New York. This subdivision shall not apply to any act expressly permitted by the statutes of the United States of America, or by the United States Army and Navy regulations, nor shall it be construed to apply to a certificate, diploma, warrant, or commission of appointment to office, ornamental picture, article of jewelry, stationery for use in private correspondence, or newspaper or periodical, on any of which shall be printed, painted or placed, said flag, standard, color, shield or ensign disconnected and apart from any advertisement. The possession by any person, other than a public officer, as such, of any such flag, standard, color, shield or ensign, on which shall be anything made unlawful at any time by this section, or of any article or substance or thing on which shall be anything made unlawful at any time by this section shall be presumptive evidence that the same is in violation of this section, and was made, done or created after the first day of September, nineteen hundred and five, and that such flag, standard, color, shield, ensign, or article, substance, or thing, did not exist on the first day of September, nineteen hundred and five. (Subd. amended by L. 1917, chs. 54 and 119 ; L. 1921, ch. 428, in effect April 30, 1921. Chapter 54 is repealed by section 2 of chap- ter 779.) Derivation: Penal Code, § 640, as amended L. 1892, ch. 692, § 1; subd. 8, as amended L. 1888, cli. 491, § 1; L. 1894, ch. 164, § 1; L. 1894, ch. 320, § 1; subd. 12, added L. 1889, ch. 497, § 1; subd. 13 added L. 1893, ch. 692, § 2; subd. 14, added L. 1893, ch. 692, § 2, amended L. 1894, eh. 551, § 1; L. 1896, ch. 552, § 1; subd. 15. added h. 1896, ch. 552. § 1; subd. 16, added L 1899^- c"- 12, § 1, amended L. 1903, ch. 272, § 1; L. 1905, ch. 80, § 1; L. 1905, ch. 440, § 1. Anderson v. How (1889), 116 N. Y. 336; Mullen v. Vniaa;e of Glens Falls (1896), 11 App. Div. 275, 42 N. Y. Supp. 113; Rice v. Buffalo Steel etc. (1897), 17 App. Div. 462, 45 N. Y. Supp. 277; Nason y- West (1900), 31 Misc. 583, 65 N. Y. Supp. 651; People v. McLaughlin (1901), 57 App. Div. 20 308 §§ 1426-1428] MALICIOUS MISCHIEF [Art. 134 454, 68 N. Y. Supp. 246, 15 N. Y. Cr. 337; McMorris v. Howell (1903), 89 App. Div. 274, 85 N. Y. Supp. 1018; People ex rel. Pike v. Van De Carr (1904), 178 N. Y. 425, 19 Crim. Eep. 332, aif'g 86 N. Y. Supp. 644, 91 App. Div. 20; see also People v. Becker, 10 N. Y. Supp. 676; Wait v. Green, S Park. 185; O'Donnell v. Mclntyre, 16 Abb. N. C. 87; People v. Upton, 9 N. y. Supp. 684. § 1426. Malicious injury to standing crops, when a misde- meanor. A person, who maliciously injures or destroys any standing crops, grain, cultivated fruits, or vegetables, the property of an- other, in any case for which punishment is not otherwise prescribed by this chapter or by some other statute, is guilty of a misde- meanor. Berivation: Penal Code, § 646. People V. Upton, 9 N. Y. Supp. 684. § 1427. Removal of books and works of art from library, wil- ful injury to works of art, ornamental trees or other improve- ments. Any person who : 1. Removes or assists in removing any book, manuscript, map, print, coin, medal, printing or other literary article or work of art from the library building of any reference library company, ex- cept for its preservation or repair or for the purpose of its deposit in some other building of the company, or, being a trustee or offi- cer of such company, consents to the removal thereof; or, upon such removal refuses to permit tho same to be restored ; or, 2. Not being the owner thereof, and without lawful authority, wilfully injures, disfigures, removes or destroys a gravestone, monument, work of art, or useful or ornamental improvement, or any shade tree or ornamental plant, whether situated upon private grounds or upon the street, road or sidewalk, cemetery or publie park or place, or removes from any grave in a cemetery any flowers, memorials or other tokens of affection, or other thing con- nected with them, Is guilty of a misdemeanor. Derivation: Penal Code, § 647, as amended L. 1892, oh. 692, S 1. People V. Richards (1888), 108 N. Y. 137, rev'g 44 Hun, 278; Schultz T. Greenwood Cemetery (1907), 190 N. Y. 276, rev'g 112 App. Div. 922, 98 N. Y. Supp. 1114. § 1428. Wilful or malicious injury to certain articles in li- braries, galleries, museums or exhibitions. A person who wilfully or maliciously cuts, tears, defaces, dis- .304 Art. 134] MALICIOUS MISCHIEF [§§ 1429-1431 figures, soils, obliterates, brealcs or destroys, a book, map, chart, picture, engraving, statute, coin, model, apparatus, specimen, or other work of literature or object of art, or curiosity, deposited in a public library, gallery, museum, collection, fair, or exhibi- tion, or in a library, gallery, museum, collection or exhibition belonging to any incorporated college or university, or to any other incorporated institution devoted to educational, scientific, literary, artistic, historical or charitable purposes, is punishable by imprisonment in a state prison for not more than three years, or in a county jail for not more than one year, or by a fine of not more than five hundred dollars, or by both such fine and im- prisonment. Derivation: Penal Code, f 648, as amended L. 1007, ch. 405, § 1. § 1429. Destropng or delapng election returns. A messenger appointed by authority of law to receive and carry a report, certificate or certified copy of any statement relating to the result of any election, who wilfully mutilates, tears, defaces, obliterates or destroys the same, or does any other act which prevents the delivery of it as required by law; and a person who takes away from such messengeir any such report, certificate or certified copy, with intent to prevent its delivery, or who wilfully does any injury or other act in this section specified, is punish- able by imprisonment in a state prison not exceeding five years. Derivation: Penal Code, $ 649, as amended L. 1892, ch. 662, § 24. People V. Wise (1885), 3 N. Y. Cr. 303, 2 How. Pr. (N. S.) 92. § 1430. Property in house of worship. A person, who vdlfully and without authority, breaks, defaces or otherwise injures any house of religious worship, or any part thereof, or any appurtenance thereto, or any book, furniture, ornament, musical instrument, article of silver or plated, ware, or other chattel kept therein for use in connection with religious worship, is guilty of felony. Derivation: Penal Code, § 650. § 1431. Interference with gas or electric meters or steam valves. A person who wilfuUy with intent to injure or defraud : 1. Connects a tube, pipe, -wire or other instrument or contriv- ance with a pipe or wire used for the conducting or supplying illuminating gas, fuel, natural gas or electricity in such a manner 305 § 1431] MALICIOUS MISCHIEF [Art. 134 as to supply such gas or electricity to any burner, orifice^ lamp or motor where the same is or can be burned or used without passing through the meter or instrument provided for registering the quantity consumed, or uses such gas or electricity obtained by reason of the malting of such connection ; or, 2. Obstructs, alters, injures or prevents the action of a meter or other instrument used to measure or register the quantity of illuminating fuel, natural gas or electricity consumed in a house or apartment, or at an oritice or burner, lamp or motor, or by a consumer or other person or a person other than a state inspector or a deputy inspector of gas meters or an employee of the company owning any gas or electric meter, who wilfully shall detach or dis^ connect such meter, or make or report any test of, or examine for the purpose of testing any such meter so detached or diecon- nccted ; or, 3. In any manner whatever, changes, extends or alters any service or other pipe, wire or attachment of any kind connecting or through which natural or artificial gas or electricity is fur- nished from the gas mains or pipes or wires of any person, com- pany or corporation without first procuring from said person, company or corporation written permission to make such change, extension or alterations, or uses gas or electricity obtained by reason of such changes, extensions or alterations without first pro- curing the written permission aforesaid ; or, 4. Makes any connection or re-connection with the gas mains, service pipes or wires of any person, company or corporation furnishing to consumers natural or artificial gas or electricity, or turns on or off or in any manner interferes with any valve or stopcock or other appliances belonging to such person, company or corporation and connected with its service or other pines or wires, or enlarges the orifice of mixers, or uses natural gas for heating purposes except through mixers, or uses electricity or artificial gas for any purpose before it has passed through an instmment for measuring the quantity consumed, without first procuring from such person, company or corporation a written permit to turn on or off. such stopcock or valve, or to make such connections or re-connections, or to enlarge the orifice of mixers or to use for heating purposes without mixers, or to interfere with the valves, stopcocks, wires, or other appliances of such person, company or corporation as the case may be; or, 5. Retains possession of or refuses to deliver any mixer or .■?06 Art. 134] MALICIOUS MISCHIEF [§ 1432 mixers, meter or meters, lamp or lamps, or other appliances which may be or may have been loaned or rented to them by any person, company or corporation for the purpose of furnishing gas, electricity or power through the same, or who sells, loans or in any manner disposes of the same to any person or persons other than the said person, company or corporation entitled to. the possession of the same; or, (). ISets on fire any gas escaping from wells, broken or leaking mains, pipes, valves or other appliances used by any person, com- pany or corporation, in conveying gas to consumers, or inteifcres in any manner with the wells, pipes, mains, gateboxes, valves, stopcocks, wires, cables, conduits, or any other appliances, machin- ery or property of any person, company or corporation engaged in furnishing gas to consumers unless employed by or acting under the authority and direction of such person, company or corpora- tion; or, 7. Opens or causes to be opened or re-connects or causes to be rc-connected any valve lawfully closed or disconnected by a district steam corporation ; or, 8. Turns on steam or causes it to be turned on, or to re-enter any premises when the same has been lawfully stopped from en- tering such premises, Is guilty of a misdemeanor. DeriTatlon: Penal Code, § C51, as amended L. 1888, ch. 219; L. 1892, chs. 002, 69!); L. 1803, ch. 692; L. 1900, ch. 580; L. 1000, ch. 453. § 1432. Unlawful interference with water meters, water ser- vice pipes and their connections. A person who, wilfully, with intent to injure or defraud: 1. Breaks or defaces, or causes to be broken or defaced, the seal of a water meter; or, 2. Obstructs, alters, injures or prevents, or causes to be ob- structed, altered, injured or prevented, the action of any such meter or other instrument used to measure or register the quan- tity of water supplied to or consumed by any person, corporation or company ; or, 3. Makes or causes to be made any connection by means of. pipe, conduit or otherwise with the water main or service pipe of any person, corporation or company furnishing water to con- sumers, in such manner as to take water from said main or service pipe without its passing through the meter or other in- 307 § 1433] MALICIOUS MISCHIEF [Art. 134 strument provided for registering or measuring the amount or quantity of water taken from said main or service pipe; or, 4. Makes any connection or re-connection with the water main or service pipe of any person, corporation or company furnishing water to consumers, or turns on or off, or in any manner inter- feres with any valve, stopcock or other appliance belonging to said person, corporation or company, without obtaining from such person, corporation or company a written permit to make such connection or re-connection or to turn or otherwise interfere with said valve, stopcock or other appliance; or, 5. Prevents, by the erection of any device or construction, or by any other means, free access to any such meter by the person, company or corporation furnishing such water; or interferes, ob- structs or prevents, by any means, the reading or inspection of such meter. Is guilty of a misdemeanor. Derivation: Penal Code, § 6Sla, added L. 1902, ch. 333, f I. § 1433. Injury to property, how punistiod. A person who unlawfully and wilfully destroys or injures any real or personal property of another, or who without authority or permission from a person who has the right to give such authority or permission, loosens any brake or blocking of any car standing on any railroad track in this state, or vsrithout like authority or per- mission, puts upon or runs any hand car, or other car, on any rail- road track in this state, or without like authority or permission, in- terferes or meddles with any brake or coupling of any car while standing or moving on any railroad track in this state, or takes any part therein, in a case where the punishment is not specially prescribed by statute, is punishable as follows : 1. If the value of the property destroyed, or the diminution in the value of the property by the injuiy is more than two hundred and fifty dollars, by imprisonment for not more than four years. (Subd. 1, amended by L. 1912, ch. 163; L. 1915, eh. 842. In effect Sept. 1, 1915.) 2. In any other case, by imprisonment for not more than six months, or by a fine of not more than two hundred and fifty dol- lars, or by both such fine and imprisonment. 3. And in addition to the punishment prescribed therefor, he is liable in treble damages for the injury done, to be recovered in a civil action by the owner of such property, or the public officer having charge thereof. Derivation: Penal Code, { 654, as amended L. 1892, eh. 186. 308 Art. 134] MALICIOUS MISCHIEF [§ 1434 People V. Christy (1892), 65 Hun, 349, 20 N. Y. Supp. 278, 8 N. Y. Cr. 481; People V. Kane (1892), 131 N. Y. Ill; People v. Bosworth (1892), 64 Hun, 72, 19 N. Y. Supp. 114; Hewitt v. Newburger (1894), 141 N. Y. 538, rcv'g 66 Hun, 230, 20 N. Y. Supp. 913; People v. Kane (1894), 142 N. Y. 366, rev'g 73 Hun, 542, 26 N. Y. Supp. 1121; Prignitz v. McTiernan (1896), 18 Misc. 652, 43 N. Y. Supp. 974; People v. Knatt (1898), 156 N. Y. 302, rev'g 19 App. Div. 628, 46 N. Y. Supp. 1098; Layton v. McConnell (1901), 61 App. Div. 447, 70 N. Y. Supp. 679; Curley v. Electric Vehicle Co. (1902), 68 App. Div. 1820, 74 N. Y. Supp. 35; O'Dell v. Hatfield (1903), 40 Misc. 13, 81 N. Y. Supp. 158; see also Von Hoffman v. Kendall, 17 N. Y. Supp. 713; Yeamans v. Nichols, 81 N. Y. Supp. 500. § 1434. Placing injurious substances on roads. Whoever willfully shall throw, drop or place, or shall cause or procure to be thrown, dropped or placed, in or upon any cycle path, avenue, street, sidewalk, alley, road, highway or public way or place, any glass, tacks, nails, pieces of metal, brier, thorn or other substance which might injure any animal or puncture any tire used on a vehicle, or which might woimd, disable or injure any person using such way, shall be guilty of a misdemeanor, and on conviction be fined not less than five nor more than fifty dollars. (Amended by L. 1916, ch. 321, in effect Sept. 1, 1916.) DerivatloBt Penal Code, i 654a, added L. 1806, ch. 304. Lechner v. Village of Newark (1896), 19 Misc. 452, 44 N. T. Snpp. 666} Faople T. Schermerhom (1908), 69 Misc. 149, 112 N. T. Supp. 2S2. § 1435. Wearing industry badges, or other insignia of iden« tification, by unauthorized persons. An employer of labor may adopt a badge, or other insignia of identification, to be worn or displayed by the employees for the purpose of identification while upon the premises of the employer and post a notice of the adoption of such badge, or insignia, near flie main entrance of such premises. Such employer shall deposit with the industrial commission a replica of such badge or insignia, and such commission shall, if such badge or insignia be distinctive, issue to such employer a certificate authorizing the use thereof for the purposes of this section. Any person who, after the approval and adoption of such badge, or insignia, and posting of such notice, without authority or permission of the employer adopting the «ame, wilfully wears such badge, or displays such insignia, or any facsimile or any imitation thereof, or uses the same to obtain 309 § 1435] MALICIOUS MISCHIEF [Art. 134 admittance to or remain upon the premises of the employer, is guilty of a misdemeanor. (Added by L. 1918, ch. 265, in effect April 17, 1918.) § 1435. Damaging military or naval equipment supplies or stores. A person who, in time of war, wilfully or maliciously : 1. Injures or destroys any article of equipment or supplies or military or naval stores of the military or naval forces of the United States or of the state of New York or of any foreign gov- ernment allied with the United States, or any article used or in- tended for use in the production or manufacture of any such article; or 2. Injures or destroys any building, structure, or vessel used or occupied by the military or naval forces of the United States or of the state of New York or of any foreign government allied with the United States, or any article used or intended for use in the construction or operation of any such building, structure or vessel ; or 3. Injures or destroys any building, structure, or vessel used or occupied in the production of any article mentioned in subdivision one of this section or any article used or intended for use in the construction or operation cf any such building, structure, or vessel ; or 4. Injures or destroys any machine used or intended for use in the production of ary article mentioned in subdivision one, two, or three of this section cr used or irtended to be used in the con- struction or operation of any building, structure, or vessel men- tioned in subdivision two or three of this section ; or tampers with any such machine with intent to lessen its efficiency in the produc- tion cf any such article ; or 5. Injures or destroys any railroad engine or car, or any vehicle, or any vessel used or intended for use in the transportation of any article or machine mentioned in subdivision one, two, three, or four of this section, or tampers with any such engine, car, vehicle, or vessel with intent to lessen its efficiency in the transportation of any such article, or with intent to hinder, delay, or obstruct any 309a Art. 134] MALICIOUS MISCHIEF [§§ 1435-1437 military or naval operation of the United States or of the state of New York or of any foreign government allied with the United States; or 6. Injures, destroys, obstructs, or tampers with any railroad, highway, bridge, canal or river with intent to interfere with or delay the transportation of any article or machine mentioned in section one, two, three, four or five of this section, or with intent to hinder, obstruct, or delay any military or naval operation of the United States or of the state of New York or of any foreign gov- ernment allied with the United States; or 7. Unlawfully seizes or carries away or injures or destroys or tampers with any property with intent to hinder, obstruct, or delay any military or naval operation of the United States or of the state of New York or of any foreign government allied with the United States ; Is guilty of felony. (Added hj L. 1918, ch. 337, in effect April 25, 1918.) § 1436. Conspiracy to violate the foregoing section. If -two or more persons conspire' to commit any of the acts mad© punishable by the foregoing section, each of such persons is guilty of felony. (Added by L. 1918, ch. 337, in effect April 25, 1918.) § 1437. Penalties for violations of the two foregoing sec- tions. The violation of either of the two foregoing sections is punish' able by imprisonment for a term of not less than five nor more than twenty-five years. (Added by L. 1918, ch. 337, in effect April 25, 1918.) 309b §§ 1450-1451] MAKKIAGES [Art. 136 AItTIC]:.E 136. MARRIAGES. Seohon 1450. Solemnizing unlawful marriages. 1451. Unlawful procurement of marriage license. § 1450. Solemnizing unlawful marriages and unlawful sol- emnizing of marriages. A minister or magistrate who solemnizes a marriage when either of the parties is known to him to be under the age of legal consent, or to be an idiot or insane person, or a marriage to which within his knowledge a legal impediment exists, or any person not author- ized by the laws of this state to perform marriage ceremonies who shall solemnize or presume to solemnize, with intent to deceive, any marriage between any parties is guilty of a misdemeanor. Until a marriage has been dissolved or annulled by a proper tri- bunal or court of competent jurisdiction, any person who shall assume to grant a divorce, in writing, purporting to divorce hus- band and wife and permitting them or either of them to lawfully marry again, shall be guilty of a misdemeanor punishable by fine for the first offense not exceeding five hundred dollars, and for the second oifense one thousand dollars, or imprisonment not exceed- ing one year, or both such fine and imprisonment. (Amended by L. 1916, ch. 368, in effect Sept. 1, 1916.) Derivation: Penal Code, § 376, as amended L. 1893, eh. 461. § 1451. Unlawful procurement of marriage license. A person who, having a husband or wife living, takes out a license to marry another person, is guilty of a misdemeanor. The excep- tions in section three hundred and forty-one of this chapter are applicable to this section. (Added by L. 1916, ch. 482, in effect Sept. 1, 1916.) 310 Art. 138]. MAKRIED WOMEN [| 1460 ARTICLE 138. MAKBIED WOMEN. Section 1460. Presence of husband no defense. [Article 138 repealed and § 1460 renumbered S 1092 by L. 1909. cti. 624. Ja elfec<: May 27, 1909.] Ill §§ 1470-1472] MEETINGS [Art 140 ARTICLE 140. MEETINOS. SBonoif 1470. Disturbing lawful meetings. 1471. Leaving state with intent to elude proTisions of this article. 1472. Witnesses' privilege. § 1470. Disturbing lawful meetings. A person who, without authority of law, wilfully disturbs any assembly or meeting, not unlawful in its character, is guilty of a misdemeanor. DerlTation: Penal Code, § 448. People V. Barber (1893), 74 Hun, 368, 26 N. Y. Supp. 417; People ex rel. Taylor v. Seaman (1894), 8 Misc. 162, 29 N. Y. Supp. 329; see also People V. Judson, 11 Daly, 1, 82. § 1471. Leaving state with intent to elude provisions of this article. A person who leaves the state, with intent to elude any pro- vision of this article, or to commit any act without the state, which is prohibited by this article, or who, being a resident of this state, doee any act without the state, which would be punishable by the provisions of this article, if committed within the state, is guilty of the same offense and subject to the same punishment, as if the act had been committed within this state. Derivation: Penal Code, § 461. § 1472. Witnesses' privilege. No person shall be excused from giving evidence upon an in- veetigation or prosecution for any of the offenses specified in this article upon the ground that the evidence might tend to convict him of a crime. But such evidence shall not be received against him upon any criminal proceeding. Derivation I Penal Code, { 469. 3T5? Art. 142] MILITARY [§§ 1480-14B1 ARTICLE 142. MILITART. Sbotion 1480. Depriving members of national guard of employmeiit. 1481. Diacrimination against members of national guard. 1482. Drugging person for enlistment. 1483. Seizing military stores belonging to the state. 1484. Converting military property; unlawfully wearing uniform; unlawful use of name of military or naval organization, or unit thereof, 1485. Introduction of spirituous or malt liquors into arsenal or armory. 1486. Unlawfully exacting toll of a member of the national guard. 1487. Failure to respond to military duty. § 1480. Depriving members of national guard of employ- ment. A person who, either by himself or with another, wilfully de- prives a member of the national guard of his employment, or prevents his being employed by himself or another, or obstructs or annoys said member of said national guard, or his employer, in respect of his trade, business, or employment, because said member of said national guard is such member, or dissuades any person from enlistment in the said national guard by threat of injury to him in case he shall so enlist, in respect of his employ- ment, trade, or business, is guilty of a misdemeanor. Derivation: Penal Code, § 171b, added L. 1903, ch. 349. § 1481. Discrimination against members of national guard. No association or corporation, constituted or organized for the ■ purpose of promoting the success of the trade, employment, or business of the members thereof, shall by any constitution, rule, by-law, resolution, vote, or regulation, discriminate against any member of the national guard of the state c New York, because of such membership in respect of the eligibility of such member of the said national guard to membership in such association or corporation, or in respect of his right to retain said last men- tioned membership; it being the purpose of this section and the section immediately preceding to protect a member of the said national guard from disadvantage in his means of livelihood and liberty therein but not to give him any preference or advantage on account of his membership of said national guard. A person who aids in enforcing any such provisions against a member of 313 §§ 1482-14-85] MILITARY [Art. 142 the said national guard with the intent to discriminate against hhn be- cause of such membership, is guilty of a misdemeanor. Dorivation: Penal Code, § 171c, added L. 1903, ch. 349. § 1482. Drugging person for enlistment. A person who administers any drug or stupefying substance to another, with the intent, while such person is under the influence thereof, to in- duce such person to enter the military or naval service of the United States, of this state, or any other state, country or government, is guilty of a misdemeanor. Derivation: Penal Code, § 447. § 1483. Seizing military stores belonging to the state. A person who enters any fort, magazine, arsenal, armory, arsenal yard or encampment, and seizes or takes away any arms, ammunition, military stores or supplies belonging to the people of th:s state; and a person who enters any such place with intent so to do, is punishable by Imprisonment in a state prison not exceeding ten years. Derivation: Penal Code, § 484. 1484. Converting miUlary property; unlawfully vrearivg uniform; un. lavrfnl use of name of military or naval organization, or unit thereof. , 1. Any person who shall secrete, sell, dispose of, offer for sale, purchase, retain after demand made by a commissioned officer of the national guard, or in any manner pawn or pledge any arms, uniforms or equipments, issued under the provisions of the military law; or, 2. Any person not a member of the national guard, except members of organizations specially authorized to do so by the military law, who shall wear any uniform or designation of grade similar to those in use by the . national guard, issued or authorized under the provisions of said law; or, 3. Any person, society or corporation who shall, with intent to acquire or obtain for personal or business purposes a benefit or advantage, as- sume, adopt or in any manner use the name of a regiment, battalion, bat- tery, squad, troop, division, company or other unit of any military or naval organization constituting a part of the national guard or naval militia of the state of New York, or of any society, association or other organization, or a part thereof, whether incorporated or unincorporated, that has been recognized by the commanding olficer of such military or naval organiza- tion as a society or association of its veterans or ex-members, or who Shall assume or adopt a name so nearly resembling it as to be calculated to deceive the public with respect to any such military or naval organiza- tion, or any such society, association or other organization, or a part thereof, of its veterans or ex-members, without first having obtained the written consent of the commanding officer of such military or naval or- ganization, Is guilty of a misdemeanor. 4. Any person who shall fraudulently wear ary badge, insignia, clasp, rosette or button issued by tlie government of the United States or the state of New York or any foreign government to which the government of the United States was allied in the world war, shall he guilty of a misdemeanor. Whenever there shall be an actual or threatened violation of any of the sub- divisions of this section, an application may be made to a court or justice having jurisdiction to issue an injunction, upon notice to the defendant of not less than five days, for an injunction to enjoin and restrain said actual or threatened violation; and if it shall appear to the satisfaction of the court or justice that the defendant is in fact violating any of the subdivisions of this section, or is threatening to do so, an injunction may be issued by such court or justice enjoining and restraining such actual or threatened violation with- out requiring proof that any person has in fact been misled or deceived or otherwise injured thereby. (Amended by L. 1913, ch. 555; L. 1921, ch. 143, in effect April 1, 1921.) Derivation: Penal Code, § 674b, added L. 1894, ch. 551, § 2. S 1485. Introduction of spirituous or malt liquors into arsenal or armory. Any person who introduces any wine, spirituous _ or malt liqjors into any arsenal or armory, except when prescribed for medical 314 Art. 142] MILITARY [§§ 1486-1487 purposes by a medical officer of the national guard, is guilty of a misdemeanor. Derivation: Penal Code, § 674c, added L. 1894, ch. SSI, § 2. § 1486. Unlawfully exacting toll of a member of the national guard. Any person, master or keeper of a toll-gate, toll-bridge or ferry, or any person in charge thereof who wilfully hinders or delays any member of the national guard or refuses free passage to any such member going to or returning from any parade, encampment, drill or meeting which he may be by law required to attend, or wilfully hinders, delays or refuses free passage to any conveyance or military property of the state in charge of a member of said guard, is guilty of a misdemeanor. Derivation : Penal Code, § 674d, added L. 1894, ch. 561, ! 2. § 1487. Failure to respond to military duty. Every member of an independent military organization not regularly organized as an organization of the national guard, who fails to respond or to do military duty, or refuses to enlist when lawfully called upon to do so by the commander-in-chief, in case& of emergency or necessity, is guilty of a misdemeanor. DmrlTstloa: Penal Code, S e74e, added L. 1894, ch. 651, § 2. 81S f 1600] NAVIGATION [Art 144 ARTICI.E 144. NAVIGATION. ISbction 1500. Offenses against the navigation law. 1500a. bound of exhaust on gasoline motor boat to be muffled, 150i. Unlicensed piloting. 1502. Acting as port-warden without authority. 1503. Using net or weir unlawfully in Hudson riTer. 1504. Lights upon swing bridges. 1505. Interfering witli navigation. 1506. Wilfully destroying vessel. 1507. Fitting out or lading any vessel with intent to wreck the same, 1608. Making false manifest. 1609. Destroying invoice. 1610. Motor boats to be provided with mufflers; exceptiona. '§ 1500. Offenses against the navigation law. Any person having the charge, command or control of a steamboat or vessel who : 1. Permits a line used for the purpose of landing or receiviag pas- sengers, to be attached in any way to the machinery of any steamboat, or permits a small boat used for the purpose of landing or receiving passengers to be hauled by means of such machinery ; or, 2. Carries or permits a steamboat to carry a greater number of pas- sengers than is stated in the certificate of such steamboat issued under the navigation law ; or, 3. Wilfully violates any of the provisions of section eleven of the navigation law, relating to the sailing rules ; or, 4. Neglects to carry and show on a vessel the lights required by section twelve of the navigation law ; or, 5. Neglects to carry on a vessel the life boats and life preservers required by sections fourteen and fifteen of the navigation law ; or, 6. Neglects to carry on a vessel the steam fire pump required by section thirteen of the navigation law ; or, 7. Intentionally loads or obstructs or causes to be loaded or ob- structed in any way the safety valve of the boiler of any steamboat or naptha launch, or employs any other means or device whereby the boiler of such vessel may be subjected to a greater pressure than is allowed by the inspectors' certificate, or intentionally deranges or hin- ders the operation of any machinery or device employed to denote the stage of the water or steam in any boiler or to give warning of ap- proaching danger, or intentionally permits the water to fall below the prescribed low water limit of the boiler ; or, 8. Acts or permits another person to act as officer of a vessel without having the license required by section seventeen of the navigation law, except as permitted by the provisions of section thirty of the naviga- tion law; or, 9. Uses or permits to be used in lamps, lanterns or other lights, on a vessel, any oil which will not stand a fire test of at least three hun- dred degrees Fahrenheit ; or, ol6 Art. 144] NAVIGATIOiN" [§ 1501 10. After employing a steam vessel for towing, receives any commission or compensation for orders given to the owner, captain or agent of any vessel for towage ; or interferes with or hinders any such owner, captain or agent, while in the prosecution of his busi- ness; or, 11. Ifeglects to cause the dampers in the pipes or chimneys of a steamboat to be closed, or to otherwise prevent the escape of sparks and coals therefrom while passing near any of the villages or cities situated on the Hudson river, or while landing or receiv- ing passengers or freight, or while lying at the docks or wharves thereof; or, 12. Violates any other provision of the navigation law for which no other punishment is prescribed. Is guilty of a misdemeanor. Derivation: Penal Code, §§ 359a, 359b, added L. 1897, oh. 584, §§ 1, 2. § 1500a. Sound of exhaust on gasoline motor boat to be muffled. A person who operates a boat, barge, vessel or other floating structure, on Lake George, Cayuga and Seneca lakes, or on the canal system of the state as constructed or improved under the pro- visions of chapter one hundred and forty-seven of the laws of nine- teen hundred and three and amendatory acts and chapter three hundred and ninety-one of the laws of nineteen hundred and nine and amendatory acts, or upon any of the lakes, rivers or streams used in connection with said canal system, propelled wholly or partly by an engine operated by the explosion of gas, gasoline, naphtha or other substance, without having the exhaust from the engine run through a muffler so constructed and used as to muffle the noise of the exhaust in a reasonable nianner, shall be guilty of a misdemeanor; but the provisions of this section shall not apply to any boat, barge, vessel or floating structure while actually com- peting in a race held under the auspices of any club or racing association, or between the hours of nine o'clock in the morning and sunset, when practicing or being tested for such a race. (Added by L. 1911, ch. 758; amended by L. 1915, ch. 380; L. 1917, ck 305, in effect July 1, 1917.) § 1501. Unlicensed piloting. A person other than a lawfully authorized branch Hell Gate pilot who pilots or offers to pilot or tows or offers to tow any boat or vessel (except barges, vessels under fifty-five tons burthen, and canal boats actually used in navigating the canals) through that part of the East river, commonly called Hell Gate, is guilty of a misdemeanor. But no pilotage shall be charged to any vessel un- 317 §§ 1502-1505] NAVIGATION [Art. 144 der a coasting license, or entering or departing from the port of New York by way of the East river called Hell Gate unless such vessel actually employs a pilot, and the making of such charge or demand without such employment shall be deemed a misdemeanor. This section does not apply to vessels propelled wholly or partly by steam, owned or belonging to citizens of the United States, and licensed and engaged in the coasting trade. Derivation: Penal Code, § 398, as amended L. 1882, ch. 384, § 1; Penal Code, § 399. People V. Francisco, 10 Abb. Pr. 30; Francisco v. People, 4 Park, 139, 18 How. Pr. 475; Henderson v. Spofford, 10 Abb. Pr. (N. S.) 140, 3 Daly, 361; Comrs. of Pilots v. Pacific Mail SS. Co., 52 N. Y. 609; Stilwell v. Raynor, 12 How. (U. S.) 299; People v. Sperry, 50 Barb. 170. § 1502. Acting as port-warden without authority. A person who not being a port-warden, assumes or undertakes to act as such, or undertakes the performance of any of the duties prescribed by law, as pertaining to the office of port-warden ; and a person who knowingly employs any other than the wardens for the performance of sudi duties, and a person who issues any cer- tificate of a survey on vessels, materials or goods damaged, with intent to avoid the provisions of any statute, is guilty of a misde- meanor. Derivation: Penal Code, § 400. Tinkham v. Tapscott (1858), 17 N. Y. 141; Curtin v. People (1882), 26 Hun, 564, aff'd 89 N. Y. 621; see also Wardens v. Cartwright, 4 Sandf. 236. § 1503. Using net or weir unlawfully in Hudson river. A person, who uses any net or weir for setting or attaching nets, or a pole or other fixture in any part of the Hudson river, except as permitted by statute, is guilty of a misdemeanor. DeriTation: Penal Code, § 433. § 1504. Lights upon swing bridges. A corporation, company or individual, owning, maintaining or operating a swing bridge .across the Hudson river, who during the navigation season between sundown and sunrise, neglects to keep and maintain upon every such bridge the lights required by law, is guilty of a misdemeanor. Derivation: Penal Code, § 433a. added L. 1893, ch. 692, § 2. § 1505. Interfering with navigation. A person who throws, or causes, or permits to be thrown, from any boat, scow, or other vessel, or in any other manner, into any of the navigable waters of this state, including bays, sounds and harbors, any earth, ashes, cinders, stone, or other material, or who builds any structure therein, which will in any manner lessen the depth of such waters, or interfere with the free and safe navi- gation thereof, is guilty of a misdemeanor. Derivation: Penal Code, § 444. Art. 144] NAVIGATIOIT! [§§ 1506-1510 § 1506. Wilfully destroying vessel. A person, who wrecks, burns, sinks, scsuttles, or otherwise in- jures or destroys a vessel, or the cargo of a vessel, or wilfully permits the same to be wrecked, burned, sunk, scuttled, or other- wise injured or destroyed, with intent to prejudice or defraud an insurer or any other person, is punishable by imprisonment for not more than five years. Derivation. Peual Code, ^ 575. § 1507. Fitting out or lading any vessel with intent to wreck the same. A person who fits out any vessel, or who lades any cargo on board of a vessel, with intent to permit or cause the same to be wrecked, sunk or otherwise injured or destroyed, and thereby to defraud or prejudice an insurer or another person, is punishable by imprisonment in the state prison not exceeding ten years. Darivation: Penal Code, g 576, as amended h. 1892, ch. 663, § 18. § 1508. Making false manifest. A person, guilty of preparing, making or subscribing, a false or fraudulent manifest, invoice, bill of lading, ship's register or protest, with intent to defraud another, is punishable by imprison- ment in a state prison not exceeding three years, or by a fine not exceeding one thousand dollars, or both. Derivatioa: Penal Ck)d*, § 577. Matter of Sajrles (1903), 40 Misc. 135, 17 N. Y. Cr. 234, 81 N. Y. Supp. 258. § 1509. Destroying invoice. A person, who wilfully destroys or suppresses an invoice, bill of lading, or any other document, writing, or thing whatever, which tends to show the ownership of wrecked property, is guilty of a misdemeanor. Derivation: Penal Code, § 437. § 1510. Motor boats to be provided with mufflers ; exceptions. It shall be unlawful to use a boat propelled in whole or in part by gas, gasoline or naphtha, or similar explosive medium, unless the same is provided with an under-Water exhaust or muffler so con- structed and used as to muffle the noise of the explosion. The provisions of this section shall apply only to tidal waters or the waters of this state wherein the tide ebbs and flows and shall not apply to boats competing in a race held under the direction of a duly incorporated yacht club or racing association. Any per- son who operates a boat in violation of the provisions of this sec- tion shall be guilty of a misdemeanor and punishable by a fine of not more than twenty-five dollars. (Added by L. 1911, ch. 840 ; amended by L. 1919, ch. 244, in effect June 1, 1919.) 319 §§ 1520-1521] NEGOTIABLE INSTRUMENTS [Art. 1« ABTICI.E 146. NEOOTTABLX: INSTRUICENTS. Sbotioit 1620. Notes given for patent-rights. 1621. Notes given for a speculative consideration. § 1520. Notes given for patent-rights. A person who takes, sells or transfesrs a promissory note or other negotiable instrument, knowing the consideration of such note or instrument to consist in whole or in part, of the right to make, use or sell any patent invention or inventions, or any invention claimed or represented to be patented, without having the words " given for a patent-right " written or printed legibly and promi- nently on the face of such note or instrument above the signature thereto, is guilty of a misdemeanor. Derivation: Penal Code, § 384ni, added L. 1897, ch. 613. People v. Beattie (1904), 96 App. Div. 383, 89 N. Y. Supp. 193; People ex rel. Appel v. Zimmerman (1905), 102 App. Div. 103, 106, 92 N. Y. Supp. 497. § 1521. Notes given for a speculative consideration. A peirson who takes, sells or transfers a pi^missory note or order negotiable instrument, knowing the consideration of such note or instrument to consist in whole or in part of the purchase price of any farm product at a price greater by four or more times than the fair market value of the same product at the time in the locality, or in which the consideration shall be in whole or in part, membership of and rights in an association, company or combination to produce or sell any farm product at a fictitious rate, or of a contract or bond to purchase or sell any farm product at such rate, without having the words " given for a speculative consideration," or other words clearly showing the nature of the consideration prominently and legibly written or printed on the face of such note or instrument above the signature thereof, is guilty of a misdemeanor. DerlvatloBt Penal Code, § 384n, added L. 1897, ch. 6IS. 320 Art. 148] NUISAl^CES [§ 1530 ARTICLE 148. NUISANCES. Seotion 1530. Public nuisance defined. 1531. Unequal damage. 1532. Maintaining nuisance. 1533. Permitting use of building for nuisance; opium smoking. 1534. Ticket speculators. § 1530. Public nuisance defined. A " public nuisance " is a crime against the order and economy of the state, and consists in unlawfully doing an act, or omitting to perform a duty, which act or omission : 1. Annoys, injures or endangers the comfort, repose, health or jafety of any considerable number of persons; or, 2. OfFends public decency; or, 3. Unlawfully interferes with, obstructs, or tends to obstruct, or renders dangerous for passage, a lake, or a navigable river, bay, stream, canal oi basin, or a stream, creek or other body of water which has been dredged or cleared at public expense, or a public park, square, street or highway ; or, 4. In any way renders a considerable number of persons in- secure in life, or the use of property. DerlTailon: Penal Code, § 385, subd. 3, as amended L. 1901, ch. 367. Brown v. Bowen (1864), 30 N. Y. 519; Irvine v. Wood (1872), 51 N. Y. 224, aff'g 4 Robt. 138, 5 id. 482; Adams v. Popham (1879), 76 N. Y. 410; Clifford V. Dam (1880), 81 N. Y. 52, aff'g 44 N. Y. Super. 391; People ▼. Livingston (1882), 27 Hun, 105; Cain v. Syracuse (1883), 29 Hun, 105, aff'd 95 N. Y. 83, 89; People v. Lochfelm (1886), 103 N. Y. 1, 4 N. Y. Cr. 159; Callanan v. Gilman (1889), 107 N. Y. 360, 1 Am. St. Rep. 83, mod'f'g 62 N. Y. Super. 112; People v. Crounse (1889), 7 N. Y. Cr. 11, 51 Hun, 489, 4 N. Y. Supp. 266; Flynn v. Taylor (1891), 127 N. Y. 599, aff'g 53 Hun, 167, 6 N. Y. Supp. 96; People v. Kellog (1893), 67 Hun, 546, 22 N. Y. Supp. 490; Tinker v. N. Y., etc., * R. Co. (1898), 157 N. Y. 318, aff'd 92 Hun, 269, 36 N. Y. Supp. 672; Eldert v. Long Island R. Co. (1898), 28 App. Div. 451, 51 N. Y. Supp. 186, aff'd 165 N. Y. 651; People ex rel. Cocheu v. Dettmer (1898), 26 App. Div. 326, 49 N. Y. Supp. 877; City of Buffalo v. D., L. & W. R. Co. (1907), 190 N. Y. 84, rev'g 114 App. Div. 915; Johnson v. City of New York (1905), 109 App. Div. 821, 825, 96 N. Y. Supp. 754. Snbd. 3.— Johnson v. City of New York (1906), 186 N. Y. 146; People V. Hoffman (1907), 118 App. Div. 862, 103 N. Y. Supp. 1000, 21 Crim. Rep. 140; Fifth Ave. Coach Co. v. City of N. Y. (1908), 58 Misc. 405, 111 N. Y. Supp. 759; Melker v. City of New York (1908), 90 N. Y. 488; see also An- derson V. Rochester, etc., 9 How. 553; Chenango Bridge v. Lewis, 63 Barb. Ill; Conklin v. Phoenix Mills, 62 Barb. 299; People v. Cunningham, 1 Den. 624; Hamilton v. N. Y. t H. R. Co., 9 Pai. 71; Harris v. Thompson, 9 Barb, ttO; Htrtz T. L. I. R. Co., 13 Barb. 646; Hutchins v. Smith, 63 Barb. Ill; 321 §§ 1531-1533] NUISAlJfCES [Art. 148 Kno-; V ^Tew York, 55 Barb. 404; McCannis v. Citizens Gas Light Co., 40 Baib. 380; Osborn v. Union Ferry Co., 53 Barb. 629; Phoenix v. Comrs. of Emigration, 12 How. 1; Renwick v. Morris, 3 Hill, 621, 7 Hill, 575; People v. Sergeant, 8 Cow. 139; Thompson v. Allen, 7 Lans. 459; Wetmore v. Story, 2? Barb. 414; Wetmore v. Atlantic White Lead Co., 37 Barb. 70; State v. Burdetta, 73 Ind. 185, 38 Am. Rep. 117; Bagley v. People, 43 Mich. 355, 38 Am. Rep. 19'2>; In re Binghamton Bridge, 3 Wall. 51. § 1531. Unequal damage. An act which affects a considerable number of persons, in either of the ways specified in the last section, is not less a nuisance because the extent of the damage is unequal. Derivation: Penal Code, § 386. § 1532. Maintaining nuisance. A person who commits or maintains a public nuisance, the punishment for which is not specially prescribed, or who wilfully omits or refuses to perform any legal duty relating to the removal of such a public nuisance, is guilty of a misdemeanor. Derivation: Penal Code, § 387. Wasmer v. Railroad Co. (1880), 80 N. Y. 212, aff'g 3 Daly, 280; Simmons v. Everson (1891), 124 N. Y. 323; People v. Hoffman (1907), 118 App. Div. 862, 103 N. Y. Supp. 1000, 21 Crim. Rep. 140; see also Syracuse, etc., R. Co., 66 Barb 25. § 1533. Permitting use of building for nuisance; opium smoking. A person who: 1. Lets, or permits to be used, a building, or a portion of a building, know> ing that it is intended to be used for committing or maintaining a public nuisance; or, 2. Opens or maintains a place where opium, or any of its preparations, is smoked by other persons; or, 3. At such place sells or gives away any opium, or its said preparations, to be there smoked or otherwise used; or, 4. Visits or resorts to any such place for the purpose of smoking opium or its said preparations, Is guilty of a misdemeanor. Derivation: Penal Code, § 388, as amended L. 1889, ch. 8. People v Reed (1899), 46 App. Div. 625, 61 N. Y. Supp. 520; 14 N, Y. Cr. 326; People v. Miller (1901), 63 App. Div. 11, 71 N. Y. Supp. 212; see also State V. Ah Crew, 16 Nev. 50, 40 Am. Rep. 488. § 1534. Ticket speculators. Any person who 1. Conducts on or in any street in a city the business of selling or offering for sale any ticket of admission or any other evidence of the right of entry to any performance or exhibition in or about the premises of any theater or concert hall, place of public amusement, circus or common show; or 2. Solicits on or in any street in a city by words, signs, circulars or other means any person to purchase any such ticket or other evidence of the right of entry; or 3. In or from any building, store, shop, booth, yard, garden or in or from any opening, window, door, hallway, corridor or in or from any place of ingress or egress to or from any building, place of business, store, shop, booth, yard or garden in a city indicates, holds out or offers for sale to any person or persons on or in the street by word of mouth, crying, calling, shouting or other means that such ticket or other evidence of the right of entry may be purchased in such building, store, shop, booth, yard, garden or any other place; or 4. In or from such place or places in a city solicits by word of mouth cry- ing, calling, shouting, or other means any person on or in the street to pur- chase any such ticket or other evidence of the right of entry. Is guilty of a misdemeanor. (Added by L. 1921, ch. 12, in effect February 26, 1921.) 322 Art. 150] OYSTEKS [§§ 1550-1551 ABTICIde, § 384e. added L. 1896, oh. 561. 331 S 1620] PERJUEY, ETC. [Art. 15P ARTICLE 158. PEHJUltT ANB SITBOBNATIOir OF PERJURY. Section 1620. Perjury. 1621. Irregularities in the mode of adminiBtering oaths no defense. 1622. Swearing falsely in any form, perjury. 1623. Incompetency of witness no defense for perjury. 1624. Witness' knowledge of materiality of his testimony not neces sary. 1625. Making of deposition or certificate, when deemed complete. 1626. Statement of that which one does not know to be true. 1627. Contradictory statements under oath. 1628. Summary committal of witnesses who have committed perjury. 1629. Witnesses necessary to prove the perjury may oe oouna over to appear. 1630. Documents necessary to prove such perjury may be detained. 1631. Witnesses' testimony. 1632. Subornation of perjury defined. 1633. Punishment of perjury and subornation of perjury. 1634. Official interpreters of city court of city of New York. § 1620. Perjury. A person who swears or affirms tliat he will truly testify, de- clare, depose, or certify, or that any testimony, declaration, depo- sition, certificate, affidavit or other writing by him subscribed, is true, in an action, or a special proceeding, or upon any hear- ing, or inquiry, or on any occasion in which an oath is required by law, or is necessary for the prosecution or defense of a pri- vate right, or for the ends of public justice, or may lawfuily be administered, and who in such action or proceeding, or on such hearing, inquiry or other occasion, wilfully and knowingly tes- tifies, declares, deposes, or certifies falsely, in any material mat- ter, or states in his testimony, declaration, deposition, affidavit, or certificate, any material matter to be true which he knows to be false, is guilty of perjury. DerlTation: Penal Code, § 96. Tuttle V. People (1807), 36 N. Y. 431; Wood v. People (1874), 59 N. Y. 117, rev'g 1 Hun, 381, 3 Th. & C. 506; People v. Christopher (1875), 4 Hun, 805; Harris v. People (1876), 64 N. Y. 148, aff'g 4 Hun 1, 6 Th. & C. 206; Lambert v. People (1879), 76 N. Y. 220, 32 Am. Rep. 293; 6 Abb. N. C. 181, rev'g 14 Hun, 512; Dempsey v. People (1880), 20 Hun, 261; O'Reiily v. People (1881), 86 N. Y. 154, 40 Am. Rep. 525, rev'g 1 Hun, 460, 3 Th. & C. 787; People v. Grimshaw (1884), 33 Hun, 505, 2 N. Y. Or. 390; People v. Courtney (1884), fl4 N. Y. 490; People v. Stone Art. 168] PERJURY, ETC. [§ 1621 (1884), 32 Hun, 41; People v. Bowe (1885), 3 N. Y. Cr. 149; People V. Dishler (1885), 38 Hun, 175, 4 N. Y. Cr. 188; Nathans T. Hope (1885), 100 N. Y. 615, rev'g 5 Civ. Proc. Rep. 401; People T. Bowe (1885), 34 Hun, 528, 3 N. Y. Cr. 159; Byrnes v. Byrnes (1886), 102 N. Y. 4; Kane v. City of Brooklyn (1889), 114 N. Y. 591; People v. Williams (1896), 149 N. Y. 1, aff'g 92 Hun, 354, 36 N. Y. Supp. 511; Krauskopf v. Tallman ( 1899 ) , 38 App. Div. 273, 56 N. Y. Supp. 967 ; People V. Collins (1901), 57 App. Div. 257, 68 N. Y. Supp. 151; People v. Doody (1902), 172 N. Y. 166, 17 N. Y. Cr. 69, afl'g 72 App. Div. 372, 76 N. Y. Supp. 606, 16 N. Y. Cr. 476; People v. Martin (1902), 77 App. Div. 396, 401, 79 N. Y. Supp. 340, rev'g 38 Misc. 67, 69, aflf'd 175 N. Y. 317;People ex rel. Madigan v. Sturgis (1905), 110 App. Div. 1, 2, 96 N. Y. Supp. 1046; People v. Ellenbogen (1906), 114 App. Div. 184, 99 N. Y. Supp. 897, 20 Crim. Rep. 265; People v. Davis (1907), 122 App. Div. 569, 107 N. Y. Supp. 426, affd 191 N. Y. (memo.); People v. Tatum (1908), 60 Misc. 314; see also Bragle V. People, 10 Abb. N. C. 300; People v. Burden, 9 Barb. 467; Case V. People, 6 Abb. N. C. 152, 76 N. Y. 242; People v. Clements, 11 N. Y. St. 384; Gfeston v. People, 4 Lans. 487, 61 Barb. 35; Gilbert's case, 1 City Hall Ree. 163; Johnson's case, 1 C. H. Eec. 21; People v. Lambert, 6 Abb. N. C. 181, 14 Hun, 512; People v. Link, 4 N. Y. Supp. 435, 6 N. Y. Cr. 185; People V. McKinney, 3 Park. 610; Merritt's case, 4 C. H. Rec. 58; People ex rel. Ostrander v. Chapin, 7 N. Y. St. 209, aff'd 105 N. Y. 309; Pendergraet case, 3 City Hall Rec. 11; Pratt v. Price, 11 Wend. 127; People v. Robert- son, 3 Wheel, Cr. Cas. 183; Tomlinson's case, 4 City Hall Rec. 125; People v. Totmsend, 5 How. Pr. 315; People v. Tracy, 9 Wend. 265; People v. Travis, 4 Park. 213; People v. Vail, 57 How. 81, 6 Abb. N. C. 206; Van Steenburgh v. Kortz, 10 Johns. 167; Wickoff v. Humphrey, 1 Johns. 498; Wood's case, 4 City Hall Rec. 130; State v. Henderson, 90 Ind. 408; Com. V. Grant, 16 Mass. 17; State v. Terry, 30 Mo. 368; State v. Knox, 61 N. C. 312; Com. v. Edison, 38 Alb. L. J. 337; Woods v. Ross, 29 Daily Reg. 265; Wilson V. Nations, 5 Yerg. 211; Com. v. Brady, 5 Gray, 78; Reg. v. Schles- inger, 10 Ad. & El. (N. S.) 670. § 1621. Irregularities in the mode of administering oaths no defense. It is no defense to a prosecution for perjury that an oath was administered or taken in an irregular manner. The term " oath," includes an affirmation, and every other mode authorized by law of attesting the truth of that which is stated. Derivation: Penal Code, § 97. People V. Cook (1853), 8 N. Y. 84, 14 Barb. 287; Case v. People (1879), 76 N. Y. 242, rev'g 14 Hun, 503; O'Reilly v. People (1881), 86 N. Y. 154, rev'g 61 How. Pr. 3; People v. Nolte (1897), 19 Misc. 674, 44 N. Y. Supp. 443, 12 N. Y. Cr. 252; see also Fryatt v. Linde, 3 Edw. 239; State v. Chyo Chaigh, 92 Mo. 395. 333 §§ 1622-1625] PERJURY, ETC. [Art. 158 § 1622. Swearing falsely in any form, perjury. A person swearing, affirming, or declaxing, in any form, where an oath is authorized by law, is lawfully sworn, and is guilty of perjury, in a case where he would be guilty of the same crime, if he had sworn by laying his hand upon the Gospels. Derivation: Code Civil Pro., § 851, as amended L. 1899, ch. 340i § 1623. Incompetency of witness no defense for perjury. It is no defense to a prosecution for perjury that the defend- ant was not competent to give the testimony, deposition or cer- tificate of which falsehood is alleged. It is sufficient that he actually was permitted to give such testimony or make such depo- sition or certificate. Derivation: Penal Code, § 98. Chamberlain v. People (1861), 23 N. Y. 85; People v. Bowe (1885), 34 Hun, 528, 3 N. Y. Cr. 151; People v. Tnimpbour (1892), 64 Hun, 346, 18 N. Y. Supp. 331. § 1624. Witness' knowledge of materiality of his testimony not necessary. It is no defense to a prosecution for perjury that the defend- ant did not know the materiality of the false statement made by him ; or that it did not in fact affect the proceeding in or for which it was made. It is sufficient that it was material, and might have affected such proceeding. Derivation: Penal Code, § 90. Wood V. People (1874), 59 N. Y. 117, rev'g 1 Hun, 381, 3 Th. & C. 606; see also People v. Grimshaw, 20 Week. Dig. 116, 2 N. Y. Cr. 390. § 1625. Making of deposition or certificate, when deemed complete. The making of a deposition or certificate is aeemed to be com- plete, within the provisions of this article, from the time when it is delivered by the defendant to any other person with intent that it be uttered or published as true. Derivation: Penal Code, § 100. People V. Williams (1896), 149 N. Y. 1, aff'g 92 Hun, 354, 36 N. Y. Supp. 611; Kane v. City of Brooklyn (1889), 114 N. Y. 591 ; People v. O'Keilly, 61 How. Pr. 3, reVd 86 N. Y. 154; People v. Allen, 9 N. Y. St. 627. 334 ^Tt 158] PEKJURY, ETC. [§§ 1626-1629 § 1626. Statement of that which one does not know to be true. An unqualified statement of that which one does not know to be true is equivalent to a statement of that which he knows to be false. Derivation: Penal Code, § 101. People V. Dishler (1885), 38 Hun, 175, 4 N. Y. Cr. 190; People v. Doody (1902), 72 App. Div. 372, 383, 76 N. Y. Bupp. 606, aff'd 172 N. Y. 166, 16 N. Y. Cr. 479. § 1627. Contradictory statements under oath. In any prosecution for perjury the falsity of the testimony or statement set forth in the indictment shall be presumptively estab- lished by proof that the defendant has testified, declared, deposed or certified under oath to the contrary thereof in any other written testimony, declaration, deposition, certificate, affidavit or other writing by him subscribed. Derivation: Penal Code, S 101a, added L. 1906, ch. 324. § 1628. Summary conunittal of witnesses who have com- mitted perjury. Where it appears probable to a court of record that a person, who has testified before it in an action or proceeding in that court, has committed perjury in any testimony so given, the court may immediately commit him, by an order or process for that purpose, to prison, or take a recognizance, with sureties, for his appearing and answering to an indictment for perjury. Derivation: Penal Code, § 102. People V. Hayes (1893), 140 N. Y. 484, 23 L. R. A. 830, aflf'g 70 Hun, 111, 24 N. Y. Supp. 194. § 1629. Witnesses necessary to prove the perjury may be bound over to appear. In a case S'pecified in the last section, the court may bind over witnesses to establish the perjury, to appear at the proper court to testify before a grand jury, and also upon the trial, in case an indictment is found for the perjury. It must cause immediate notice of any such commitment or recognizance, with the names of 335 §§ 1630-1633] PERJURY, ETC. [Art. 158 the witnesses so bound over, to be given to the district attorney of the county. Derivation: Feual Code, § 103. People V. Stone (1884), 32 Hun, 41, 2 N. Y. Cr. 446; People ex lel. Gardiner v. Olmstead (1898), 25 Misc. 347, 55 N. Y. Supp. 472, 13 N. Y. Cr. 406. § 1630. Documents necessary to prove such perjury may be detained. In such a case, if a paper or document, produced by either party, is deemed by the court necessary to be used in the prose- cution for the perjury, the court may detain the same, and direct it to be delivered to the district attorney. Berivation: Penal Code, § 104. § 1631. Witnesses' testimony. The sections of this chapter which declare that evidence ob- tained upon the examination of a person as a witness shall not be received against him in a criminal proceeding, do not forbid such evidence being proved against such person upon any charge of perjury committed in such examination. Derivation: Penal Code, § 712. People V. Sharp (1887), 107 N. Y. 440, rev'g 45 Hun, 480. § 1632. Subornation of perjury defined. A person, who wilfully procures or induces another to commit perjury, is guilty of subornation of perjury. Derivation: Penal Code, § 105. People V. Evans (1869), 40 N. Y. 1 ; People v. Moett (1880), 23 Hun, 60; In re Eldridge (1880), 82 N. Y. 161; Stratton v. People (1880), 81 N. Y. 629; People v. Van Tassel (1898), 156 N. Y. 561, afF'g 26 App. Div. 445, 50 N. Y. Supp. 53; McCoy v. Munro (1902), 76 App. Div. 435, 439, 78 N. Y. Supp. 849; People v. Gagliardi (1908), 59 Misc. 655, 111 N. Y. Supp. 395. § 1633. Punishment of perjury and subornation of perjury. Perjury and subornation of perjury are each punishable as follows : 1. When the perjury is committed upon the trial of an indict- ment for felony, by imprisonment for a term not exceeding twenty years ; 836 Art. 158] PERJURY, ETC. [§ 1834 2. In any other case, by imprisonment for a term not exceeding ten years. Derivation: Penal Code, S 106, as amended L. 1892, eh. 662. People V. Hayw (1893), 140 N. Y. 484, aff'g 70 Hun, 111, 24 N. Y. Supp. 194. § 1634. Official interpreter of city court of city of New York. If an official interpreter of the city court of the city of New York, knowingly and wilfuUy, falsely interprets any evidence, matter or thing, between a witness and the court, or a justice thereof, in the course of an action or special proceeding, he is guilty of perjury. Derivatioit: Code Civil Fro., § 334, as amended L. 1907, ch. TOT. §37 § 1650] POOR PERSONS [Art. 160 abticue: 160. FOOB PySSBSOSS. BBcnoir 1650. Unlawful removal of poor person. § 1650. Unlawful removal of poor person. Any person who shall send, remove or entice to remove, or bring, or cause to be sent, removed or brought, any poor or indigent per^ son, from any city, town or county, to any other city, town or county without legal authority, and there leave such person for the purpose of avoiding the charge of such poor or indigent person upon the city, town or county, from' which he is so sent, removed or brought or enticed to remove, shall be guilty of a misdemeanor, and on conviction, shall be imprisoned not exceeding six months, or fined not exceeding one hundred dollars, or both. Derivation: Penal Code, 8 676a, added L. 1896, ch. 660. 338 Art. 162] PKISONEES [§§ 1690-1691- ABTICI.E 162. PRISONERS. Section 1690. Definitions. 1691. Communication with prisoners prohibited. 1692. Rescue of a prisoner. 1693. Escaping prisonfir may be recaptured. 1694. Prisoner escaping. 1695. Attempt to escape from state prison. 1696. Aiding escape. 1697. Suffering prisoner to escape. 1698. Concealing escaped prisoner. § 1690. Definitions. Definition of prison. — The term, " prison," as used in this article, means any place designated by law for the keeping of persons held in custody under process of law, or under lawful arrest. Definition of prisoner. — The term, " prisoner," as used in this article, means any person hold in custody under process of law, or under lawful arrest. Derivation: Penal Code, §§ 92, 93. People V. Jolinson (1887), 46 Hun, 607, 7 N. Y. Or. 402, aff'd 110 N. Y. 134; see also State v. Beebe, 13 Kans. 589; Com. v. Felburn, 119 Mass. 297. § 1691. Communication with prisoners prohibited. A person who: 1. Not being authorized by law visits any state prison, re- formatory, penitentiary, county jail or other place for the de- tention of persons convicted of crime or communicates with any prisoner therein without the consent of the agent or warden, superintendent, keeper, sheriff or other person having charge there- of or without such consent brings into or conveys ovit of a state prison, reformatory, penitentiary, county jail or other place for the detention of persons convicted of crime, any letter, informa- tion or writing to or from any prisoner ; or, 2. Conveys into or takes from such prison, reformatory, peni- tentiary, county jail or other place for the detention of persons convicted of crime, or who prrsonally or through any other person or persons gives, sells, furnishes or otherwise delivers to any prison or priaoners in custody any drug, liquor or any article 339 §§ 1692-1694] PEISONEKS [Art. 162 prohibited by law or by the rules of the superintendent, keeper, aheri£E, board of managers or other person, or official having charge or control thereof, Is guilty of a misdemeanor. Derivation: Penal Code, § 160, as amended L. 1893, ch. 692; L. 1903, ch. 333. § 1692. Rescue of a prisoner. A person who, by force or fraud, rescues a prisoner from law- ful custody, or from an officer or other person having him in lawful custody, is guilty of a felony, if the prisoner was held upon a charge, commitment, arrest, conviction, or sentence of felony; and if the prisoner was held upon a charge, arrest, com- mitment, conviction, or sentence for misdemeanor, the rescuer is guilty of a misdemeanor. Derivation. Penal Code, § 82. Com. V. Mlburn, 119 Mass. 297; State v. Murray, 15 Me. 100; People v. Rathbun, 21 Wend. 508; People v. Rose, 13 Johns. 339; People v. Wash- burn, 10 Johns. 160. § 1693. Escaping prisoner may be recaptured. A prisoner, in custody under sentence of imprisonment for any crime, who escapes from custody, may be recaptured and im- prisoned for a term equal to tliat portion of his original term of imprisonment which remained unexpired upon the day of his escape. Deiivation: Penal Code, § 84. Haggerly v. Peop'e (1873), 53 N. Y. 476, rev'g 6 Lans. 332; see also Matter of Edwards, 25 Alb. L. J. 68. § 1G94. Prisoner escaping. A prisoner who, being confined in a prison, or being in lawful custody of an officer or other person, by force or fraud escapes from such prison or custody, is guilty of felony if such custody or confinement is upon a charge, arrest, commitment, or convic- tion for a felony; and of a misdemeanor if such custody or con- finement is upon a charge, arrest, commitment or conviction for a misdemeanor. Where such prisoner has escaped from confinement in a pemal institution belonging to New York city but located in the county of Orange, or from the lawful custody of an officer of such penal institution, and such prisoner is thereafter convicted of such escape, his imprisonment may be inflicted by confinement in the penal institution from which such prisoner so escaped or in some other penal institution belonging to the city of New York ; such confinement to be at the expense of the city of New York. (Amended by L. 1920, ch. 865, in effect May 21, 1920.) Derivation: Penal Code, § 85. People V. Genet (1874), 59 N. Y. 80, 17 Am. Eep. 315; People v. Sharfeey (1874), 1 Hun, 300; People v. Johnson (1887), 46 Hun, 667; 110 K. Y. fi-J-O Art. 162] PKISONEKS [§§ 1695-1697 141; Keenan v. O'Brien (1889), 53 Hun, 30, 6 N. Y. Supp. 490; Matter of (ySyrne (1880), 56 Hun, 438, 8 N. Y. Supp. 676; People v. Sickles (1898), 26 App. Div. 470, 50 N. Y. Supp. 377, 13 N. Y. Cr. 138; People v. Flanigaa (1903), 174 N. Y. 357, 17 Crim. Rep. 310; see also Warwick v. State, 73 Ala. 486, 49 Am. Rep. 59; People v. Kedinger, 55 Cal. 290, 36 Am. Rep. 32; M'Gowan v. People, 104 111. 100, 44 Am. Rep. 87; Sargent v. State, 96 Ind. 93, 5 Crim. L. Mag. 709; Allen v. Georgia, 166 U. S. 138; Smith V. United States, 94 U. S. 97; Wilson ▼. Com., 10 Bush. 526, 19 Am. Rep. 76; State v. Davis, 33 Am. Rep. 563. § 1695. Attempt to escape from state prison. A prisoner confined in a state prison for a term less than for life, who attempts by force or fraud, although unsuooessfuUy, to escape from such prison, is guilty of felony. Derivation: Penal Code, § 86. § 1696. Aiding escape. A person who, with intent to effect or facilitate the escape of a prisoner, whether the escape is effected or attempted or not, enters a prison, or conveys to a prisoner any information, or sends into a prison any disguise, instrument, weapon, or other thing, is guilty of a felony, if the prisoner is held upon a charge, arrest, commit- ment, or conviction for a felony; and of a misdemeanor, if the prisoner is held upon a charge, arrest, commitment, or conviction for a misdemeanor. A person who aids or assists a prisoner in escaping, or attempt- ing to escape, from the lawful custody of a sheriff, or other officer or person, is guilty of a misdemeanor, if the prisoner is held under arrest, commitment, or conviction for a misdemeanor, or upon a charge thereof; and of a felony if the prisoner is held under an arrest, commitment, or conviction for a felony, or upon a charge thereof. Derivation: Penal Code, §§ 87, 88. Westbrook v. New York Sun Assn. (1901), 58 App. Div. 562, aff'g 32 Misc. 39, 69 N. Y. Supp. 266; People v. Buckley (1904), 91 App. Div. 586, 87 N. Y. Supp. 191, 18 Crim. Rep. 216; see also People v. Rose, 12 Johns. 339; People v. Tompkins, 9 Johns. 70. § 1697. Suffering prisoner to escape. A sheriff, or other officer or person, who allows a prisoner, lawfully in his custody, in any action or proceeding, civil or criminal, or in any prison under his charge or control, to escape 341 § 1698] PRISONERS [Art. 16Q or go at large, except as permitted by law, or connives at or assists such escape, or omits an act or duty whereby such escape is occa- sioned, or contributed to, or assisted, is 1. If he corruptly and wilfully allows, connives at or assists the escape, guilty of a felony; 2. In any other case, is guilty of a misdemeanor. An officer who is convicted of the offense specified in the first subdivision of this section, forfeits his office, and is forever dis- qualified to hold any office, or place of trust, honor or profit, under the constitution or laws of this state. Derivation: Penal Code, §§ 89, 00. § 1698. Concealing escaped prisoner. A person who knowingly or wilfully conceals, or harbors for the purpose of concealment, a person who has escaped or is escap- ing from custody, is guilty of a felony if the prisoner is held upon a charge or conviction of felony, and of a misdemeanor if the person is heild upon a charge or conviction of misdemeanor. Derivation: Penal Code, § 91. People V. Egner (1903), 175 N. Y. 419, 17 Crim. Rep. 394. 342 Art. 164] PEIZE FIGHTING, ETC. [§§ lYlO-lTll' ABTICIiE 164. PRIZE-FIGHTING AND SPARRING. Section 1710. Prize-fighting and sparring. 1711. What constitutes a cliallengc. 1712. Betting or stakeliolding on hgltt. 1713. Fight out of state. 1714. Place of trial. 1715. Apprehension of persons about to fight. 171G. Witnesses' privilege. § 1710. Prize-fighting and sparring. A person who, within this state, engages in, instigates, aids, encourages or does any act to further a contention, or fight, with- out weapons, between two or more persons, or a fight commonly called a ring or prize-fight, either within or without the state, or who engages in a public or private sparring exhibition, with or without gloves, within the state, at which an admission fee is charged or received, cither directly or indirectly, or who sends or i)ublishes a challenge, or acceptance of a challenge for such a coutcntion, exhibition or fight, or carries or delivers such a challenge or acceptance, or trains or assists any person in training or preparing for such a contention, exhibition or fight, is guilty of a niisdemcanor. Deriiration: Penal Code, § 458, as amended L. 1S9C, eh. 301; L. 1900, ch. 270. reojile V. Johnson (IE97), £2 Misc. 150, 49 N. Y. Supp. 382, 12 N. Y. Cr. 540; People y. Finucan (1903), 80 App. Div. 407, 17 N. Y. Cr. 254, 90 N. Y. Supp. 929; see also People v. t'itzsimmons, 34 N. Y. Supp. 1102, (19 N. Y. St. 191. § 1711. What constitutes a challenge. Any words spoken or written, or any signs uttered or made to any person, expressing or implying, or intended to express or imply a desire, request, invitation or demand to engage in any fight, such as is mentioned in section seventeen hundred and ten, are to be deemed a challenge within the meaning of that section. Derivaticn: Penal Code, § 459. People V. Barker, 2 Wheel. Car. Cas. 19; Barker v. People, 3 Cow. 386, 20 Johns. 457; Norton's Case, 3 City Hall Eec. flO; Wood's Case, 3 City Hall Eec. 139. MS §§: 1712-1715] PRIZE FIGHTING, ETC. [Art. 164 § 1712. Betting or stakeholding on fight. A person who bets, stakes, or wagers money or other property, upon the result of such a fight or encounter, or who holds or undertakes to hold money or other property so staked or wagered, to be delivered to or for the benefit of the winner thereof, is guilty of a misdemeanor. Berivation: Penal Code, § 460. People ex rel. Collins v. McLaughlin (1908), 128 App. Div. 614. § 1713. Fight out of state. A person who leaves the state, with intent to elude any pro- vision of this article, or to commit any act without the state, which is prohibited by this article, or who, being a resident of this state, does any act without the state, which would be punishable by the provisions of this article, if committed within the state, is guilty of the same offense and subject to the same punishment, as if the act had been committed within this state. Derivation: Penal Code, § 4G1. § 1714. Place of trial. An indictment for an offense, specified in the last section, may be tried in any county within the state. Derivation: Penal Code, § 4G2. § 1715. Apprehension of persons about to fight. A magistrate having power to issue warrants in criminal cases, to whom it is made to appear that there is reasonable ground to ap- prehend that an offense specified in sections seventeen hundred and ten, seventeen hundred and twelve and seventeen hundred and thirteen is about to be commited within his jurisdiction, or by any person being within his jurisdiction, must issue his war- rant to a sheriff or constable, or other proper officer, for the arrest of the person so about to offend. Upon a person being arrested and brnne-ht before him by virtue of the warrant, he must inquire into the matter, and, if it appears that there is reasonable ground to believe that the person arrested is about to commit any offense, the magistrate must require him to give a bond to the people of the state in such a sum, not exceeding one thousand dollars, as the magistrate may fix, either with or without 344 Art. 164] PRIZE FIGHTING, ETC. [§ 1716 sureties in uis discretion, conditioned that such person will not, for one year thereafter, commit any such offense. If the person arrested dpes not furnish a bond, within a time fixed by the magistrate, the later must commit him to the county jail, there to remain until discharged by a court of record having criminal jurisdiction. A person so committed may, at any time, be discharged upon a writ of habeas corpus, upon his executing the bond required by the committing magistrate. If the bond is required to be given with one or more sureties, the surety or sureties must be approved by the officer taking the same. DerlTation: Penal Code, §§ 463, 464. People V. Johnson (1897), 22 Misc. 15f>. 49 N. Y. Supp. 382, 12 N. T. Cr. 646. § 1716. Witnesses' privilege. No person shall be excused from ^ving evidence upon an in- vestigation or prosecution for any of the offenses specified in this article, upon the ground that the evidence might tend to convict him of a crime. But such evidence shall not be received against him upon any criminal proceeding. DeTlv«tioii: Penal Code, § 4G9. mn §1740] PRIZE FIGHTING, ETC. [Art. 166 ARTTCIiE 166. FUBIJC HEALTH. • Section 1740. Wilful violation of health laws. 1741. Obstructing lieaith oflicer in performance of liis duty. 1742. Omitting to label drugs, cr labeling tliein wrongly. 1743. Selling poison without labeling, and recording the sale. 1744. Penai.y lor violation of public healtli law. 1745. Regulations as lo prescr-puons of opium and morphine. 1746. Sale of cocaine or euc£.ine, £.nd regUiations lespecung their possession. 1747. Careless distribution of medicines, drugs and chemicals. 1748. Adulterated goods. 1749. Adulteration of natural fruit juices. ' 1750. Disposing of tainted food. 1751. Violations of agricultural law. 1752. Having narcotics in possession. 1753. Articles in imitation of food. I 1754. Putting noisome or unwholesome substances in highway. 1755. Obstructing passage ot ambulance. 1756. E.\posing person affected with a contagious disease in a publio place. 1756a. Disgraceful practices offending health and decency. ii5?. Spraying fruit trets with poison. 1758. Contamination of salt wells. 1759. Throwing gas tar or refuse into publio waters. 1760. Wilfully poisoning food. 1761. Acts of intoxicated physicians. 1762. Misconduct of veterinary surgeons. 1763. Illegal practice of embalming. § 1740. Wilful violation of health laws. 1. A person %vho wilfully violates or refuses or omits to comply with any lawful order or regulation prescribed by any local board of health or local health officer, is guilty of a misdemeanor. 2. A person who wilfully violates any provision of the health laws, or any regulation lawfully made or established by any pub- lic officer or board under authority of the health laws the punish- ment for violating which is not otherwise prescribed by those laws, or by this chapter, is punished by imprisonment not ex- ceeding one year, or by a fine not exceeding two thousand dollars or by both. Derivation: Penal Code, § 397, as amended L. 1005, ch. 443. Regan v. Fosdick (1897), 19 Misc. 494, 43 N. Y. Supp. 1102; Robinson v. Supreme Commandery (1902), 38 Misc. 102, 77 N. Y. Siipp. Ill; People V. VanFradenburgh (1903), 81 App. Div. 259, 80 N. Y. Supp. 834, 17 N. Y. Cr. 268. S46 Art. 166] PKIZE FIGHTING, ETC. [§§ 1741-1742 , § 1741. Obstructing health o£Bicer in performance of his duty. A person who wilfully opposes or obstructs a health officer or physician charged with the enforcement of the health laws, in performing any legal duty, is guilty of a misdemeanor. Derivation: Penal Code, § 39G. Regan v. Fosdick (1897), 19 Misc. 489, 43 N. Y. Supp. 1102. § 1742. Omitting to label drugs, or labeling them wrongly. Any person, who, in putting up any drug, medicine, or food or preparation used in medical practice, or making up any pr&- gcription, or filling any order for drugs, medicines, food or prepa- ration puts any untrue label, stamp or other designation of con- tents upon any box, bottle or other package containing a drug, medicine, food or preparation used in medical practice, or sub- stitutes or dispenses a different article for or in lieu of any article prescribed, ordered, or demanded, or puts up a greater or less quantity of any ingredient specified in any such prescription, order or demand than that prescribed, ordered, or demanded, or otherwise deviates from the terms of the prescription, order, or 'demand by substituting one drug for another, is guilty of a mis- demeanor; provided, however, that, except in the case of phy- bicians' prescriptions, nothing herein contained shall be deemed or construed to prevent or impair or in any manner affect the right of an apothecary, druggist, pharmacist or other person to recommend the purchase of an article other than that ordered, required or demanded, but of a similar nature, or to sell such other article in place or in lieu of an article ordered, required or demanded, with the knowledge and consent of the purchaser. Upon a second conviction for a violation of this section the of- fender must be sentenced to imprisonment, for a term of not less than ten days nor more than one year, and to the payment of a fine of not less than ten dollars nor more than five hundred dollars. The third conviction of a violation of any of the pro- visions of this section, in addition to rendering the offender liable to the penalty prescribed by laAV for a misdemeanor; shall forfeit any right which he may possess under the law of this state at the time of such conviction, to engage as proprietor, agent, em- ployee or otherwise, in the business of an apothecary, pharmacist, or druggist, or to compound, prepare or dispense prescriptions or orders for drugs, medicines or foods or preparations used in 347 § 1742] PUBLIC HEALTH [Art. 166 medical practice; and the offender shall he hy reason of such conviction disqualified from engaging in any such husiness as proprietor, agent, employee or otherwise or compounding, pre- paring or dispensing medical prescriptions or orders for drugs, medicines, or foods or preparations used in medical practice. This section shall not affect or impair any liability, penalty or punishment under the provisions of section four hundred and one of the penal code as the same existed prior to September first, nineteen hundred and seven, but the same may be enforced, prosecuted or inflicted as fully and to the same extent as though this section had not been passed ; and all actions civil or criminal instituted under or by virtue of said section as the same existed prior to July nineteenth, nineteen hundred and seven, and pend- ing immediately prior to September first, nineteen hundred and seven, may be prosecuted and defended to final effect in the same manner as though this section had not been enacted. The provisions of this section shall not apply to the practice of a practitioner of medicines who is not the proprietor of a store for the dispensing or retailing of drugs, medicines and poisons, or who is not in the employ of such a proprietor, and shall not prevent practitioners of medicine from supplying their patients with STich articles as they may deem proper, and except as to the labeling of poisons shall not apply to the sale of medicines or poisons at wholesale when not for the use or consumption of the purchaser; provided, however, that the sale of medicines or poisons at wholesale shall continue to be subject to such regu- lations as from time to time may be lawfully made by the board of pharmacy or by any competent board of health. 348 Art. 166] PUBLIC HEALTH [§ 1743 Derivation: Penal Code, § 401, as amended L. 1905, ch. 442; L. 1907, ch. 649; Penal Code, § 403, added L. 1905, oh. 442; second paragraph ia h. 1907, ch. 649. § 2. § 1743. Selling poison without labeling, and recording the sale. It shall be unlawful for any person, to sell at retail or fumist any of the poisons named in the schedules hereinafter set forth, without affixing or causing to be affixed, to the bottle, box, vessel or package, a label containing the name of the article and the word " poison " distinctly shown, with the name and place of business of the seller, all printed in red ink, together with the name of such poisons printed or written thereupon in plain, legible char- acters, which schedules are as follows, to wit : Schedule A. Arsenic, cyanide of potassium, hydrocyanic acid, cocaine, morphine, strychnia and all other poisonous vegetable alkaloids and their salts, oil of bitter almonds, containing hydro- cyanic acid, opium and its preparations, except paregoric and such others as contain less than two grains of opium to the ounce. Schedule B. Aconite, belladonna, cantharides, colehicum, co- nium, cotton root, digitalis, ergot, hellebore, herbane, Phyto- lacca, strophanthus, oil of tansy, veratrum viride and their phar- maceutical preparations, arsenical solutions, carbolic acid, chloral hydrate, chloroform, corrosive sublimate, creosote, croton oil, mineral acids, oxalic acid, paris green, salts of lead, salts of zinc, white hellebore or any drug, chemical or preparation which, ac- cording to standard works on medicine or materia medica, is liable to be destructive to adult human life in quantities of sixty grains or lees, and such other poisons as the state board of phar- 349 § 1744] PUBLIC HEALTH [Art. 166 macy, under the authority given to it by the public health law, may from time to time add to either of said schedules. Every person who shall dispose pf or sell at retail or furnish any poisons included under schedule A shall, before delivering the same, make or cause to be made an entry in a book kept for that purpose, stating the date of sale, the name and address of the purchaser, the name and the quantity of the poison, the purpose for which it is represented by the purchaser to be required and the name of the dispenser, such book to be always open for inspection by the proper authorities, and to be preserved for at least five years after the last entry. He shall not deliver any of said poisons without satisfying himself that the purchaser is aware of its poisonous character and that the said poison is to be used for a legitimate purpose. The foregoing portions of this section shall not apply to the dispensing of medicines or poisons on physicians' prescriptions. Wholesale dealers in drugs, medicines, pharma- ceutical preparations or chemicals shall affix or cause to be af- fixed to every bottle, box, parcel or outer enclosure of an original package containing any of the articles enumerated under said schedule A, a suitable label or brand in red ink with the word " poison " upon it. Any person who violates any of the provisions of this sectioa shall be guilty of a misdemeanor. Derivation: Penal Code, § 402, as amended L. 1905, ch. 442. § 1744. Penalty for violation of public health law. Any person who violates any provision of article eleven of the 350 Art. 166] PUBLIC HEALTH [§§ 1745-1748 public health law, for which no other penalty is imposed, is guilty of a misdemeanor. Suffolk County v. Shaw (1897), 21 App. Div. 146, 47 N. Y. Supp. 349; People V. Eontey (1889), 6 N. Y. Cr. 249, 21 N. Y. St 175, 4 N. Y. Supp. 235, aff'd 117 N. Y. 624. DeriTation: Penal Code, § 404, added It 1905, ch. 442. § 1745. Regulations as to prescriptions of opium and mor- phine. [Kepealed by L. 1918, ch. 639, in effect May 13, 1918.] § 1746. Sale of cocaine or eucaine, and regulations respecting their possession. [Repealed by L. 1918, ch. 639, in effect May 13, 1918.] § 1747. Careless distribution of medicines, drugs and chem-> icals. Any person, firm, or corporation, who distributes, or causes to be distributed, any free or trial samples of any medicine, drug, chemical or chemical compound, by leaving the same exposed upon the ground, sidewalk, porch, doorway, letter-boxes, or in any other manner, that children may become possessed of the same, shall be guilty of a misdemeanor punishable by a fine not exceeding twenty-five dollars for each offense, but this section shall not apply to the direct delivery of any such article to an adult. Uerivation: Penal Code, § 405b, added by L. 1903, ch. 494. § 1748. Adulterated goods. A person who: 1. With the intent that the same may be sold as unadulterated 351 § 1748] PUBLIC HEALTH [Art. 166 or undiluted, adulterates or dilutes wine, milk, distilled spirits or malt liquor, or any drug, medicine, food or drink, for man or beast ; or, 2. Knowing that the same has been adulterated or diluted, offers for sale or sells the same as unadulterated or undiluted, or without disclosing or informing the purchaser that the same has been adulterated or diluted, in a case where special provision has not been made by statute, for the punishment of the offense; or, 3. Sells or offers to sell, or stores or transports with intent to sell for any purpose other than cooling beer in casks, ice cut from any canal or from the wide waters or basins of any canal, unless the ice so sold, or offered for sale or stored or transported, is con- tained in a building, cart, car, sleigh, float or receptacle upon which is plainly marked in roman or capital letters, not less than eight inches square, the words, " canal ice ; " or, 4. Who shall adulterate maple sugar, maple syrup or honey, with glucose, cane sugar or syrup, beet sugar or syrup, or any other substance for the purpose of sale, or who shall knowingly sell or offer for sale maple sugar, maple syrup or honey that has been adulterated in any way ; or, 5. Violates any provision of section three hundred and ninety of the general business law, relating to canned and preserved food. Is guilty of a misdemeanor. Derivation: Penal Code, § 407, as amended L. 1S89, ch. 141; L. iei92, ch. 634; subd. 5, added L. 1896, ch. 551. People V. Cipperly ( 1885 ), 101 N. Y. 634, 4 N. Y. Cr. 69, rev'g 37 Hun 324 ; Peo- ple V. Sehaffer ( 1886) , 41 Hun 23 ; People v. Kerin ( 1886) , 39 Hun 631 ; People v. Arensburg (1886), 103 N. Y. 388, 105 N. Y. 123, rev'g 40 Hun 358, 4 N.Y.Cr. 401; People V. Mahaney (1886), 41 Hun 26; People v. Kibler (1887), 106 N.Y. 321; People v. West (1887), 106 N. Y. 293, aflf'g 44 Hun 162; People v. Hill 352 Art. 166] PUBLIC HEALTH [§§ 1749-1750 (1887), 44 Hun, 472; People v. Gillson (1888), 109 N. Y. 403; People V. Harris (1890), 123 N. Y. 70; People v. Hodnett (1893), 68 Hun, 343, 22 N. Y. Supp. 809; People v. Girard (1895), 145 N. Y., 105, aff'g 73 Hun, 457, 26 N. Y. Supp. 272; People v. Fox (1896), 4 App. Div. 38, 38 N. Y. Supp. 635; People v. Kellina (1898), 13 N. Y. Cr. 134, 50 N. Y. Supp. 653; People v. Biesecker (1901), 169 N. Y. 63, 59, 88 Am. St. Rep. 534, aff'g. 58 App. Div. 391, 68 N. Y. Supp. 1067; Grossman v. Lurman (1902), 171 N. Y. 329, aff'g 57 App. Div. 393, 68 N. Y. Supp. 311; People v. Wind- holz (1902), 68 App. Div. 552, 74 N. Y. Supp. 241; People v. Sheriff (1902), 78 App. Div. 46, 79 N. Y. Supp. 783; People v. Laesser (1903), 79 App. Div. 384, 79 N. Y. Supp. 470; see also People v. Bischoff, 14 N. Y. St. 581; People V. Eddy, 12 N. Y. Supp. 628; People v. Fulle, 12 Abb. N. C. 196, 1 N. Y. Cr. 172; People v. Meyer, 60 N. Y. Supp. 415; Com. v. Evans, 132 Mass. 11; Butler v. Chambers, 36 Minn. 69; State v. Addington, 77 Mo. 110; State v. Ah Crew, 76 Nev. 50, 40 Am. Rep. 488; State v. Marshall, 64 N. H. 549, 1 L. R. A. 51; State v. Smyth, 14 R. I. 100, 51 Am. Rep. 344; Com. v. Powell, 127 U. S. 678. § 1749. Adulteration of natural fruit juices. Any person who shall knowingly sell, offer or expose for sale, or give away, any compound or preparation composed, in whole or in part, of any unwholesome, deleterious or poisonous acid, or other unwholesome, deleterious or poisonous substance, as a substitute for the pure, unadulterated and unfermented juice of lemons, limes, oranges, currants, grapes, apples, peaches, plums, pears, ber- ries, quinces, or other natural fruits, representing such compoimd or preparation to be the pure, unadulterated and unfermented juice of any of such fruits ; or who, in the mixing, decoction, or prepa- ration of food or drink, shall knowingly use any such compound or preparation in the place of, or as a substitute for, the pure, unadulterated and unfermented juice of one or more of such fruits, shall be guilty of a misdemeanor, and, upon conviction, shall be punished by a fine of not more than two hundred and fifty dollars, or by imprisonment for not more than, six months, or by both such fine and imprisonment. Derivation: Penal Code, f 407a, added L. 1899, eh. 343. § 1750. Disposing of tainted food. A person who with intent that the same be iiaed as food, drink, or medicine, sells, or offers or exposes for sale, any article what- ever which, to his knowledge, is tainted or spoiled, or for any cause unfit to be used as such food, drink, or medicine, is guilty of a misdemeanor. Derivatioji: Penal Code, S 408. 353 §§ 1751-1753] PUBLIC HEALTH [Art. 166 Goodrich v. People (1859), 19 N. Y. 574; People v. Parker (1868), 38 N. Y. 85; Hartman V. Sun Printing & Pub. Assoc. (1902), 74 App. Div. 282, 284, 77 N. Y. Supp. 538; People v. Beaman (1905), 102 App. Div. 161, 92 N. Y. Supp. 295, 19 Crim. Eep. 87. § 1751. Violations of the agricultural law. Any person who disregards, disobeys or violates any proclama- tion, notice, order or regulation, lawfully issued or prescribed by the commissioner of agriculture, for the suppression or prevention of the spread of infectious or contagious diseases among domes- tic animals, or who violates any of the provisions of sections three hundred and three hundred and four of the agricultural law, is guilty of a misdemeanor. Derivation: Penal Code, § 408a, added L. 1893, ch. 692, amended L. 1894, ch. 426; L. 1897, ch. 554. People V. Piat (1897), 19 Misc. 131, 43 N. Y. Supp. 231; People v. Armour (1897), 18 App Div. 584, 48 N. Y. Supp. 317; People v. Beaman (1905), 102 App. Div. 1151, 92 N. Y, Supp. 295, 19 Crim. Rep. 87. § 1752. Having narcotics in possession. 1. A person, other than a duly licensed physician or surgeon engaged in the lawful practice of his profession, who has in his possession any narcotic or anaesthetic substance, compound or prep- aration, capable of producing stupor or unconsciousness, with intent to administer the same or cause the same to be administered to another, without the latter's consent, imless by direction of a duly licensed physician, is guilty of a felony, punishable by im- prisonment in the state prison for not more than ten years. 2. The possession by any person, other than as exempted in the foregoing subdivision, of any such narcotic or anaesthetic sub- stance or compound, concealed or furtively carried on the person, is presumptive evidence of an intent to administer the same or cause the same to be administered in violation of the provisions of tJiis section. Derivation: Penal Code, § 412, added L. 1897, ch. 42. The original sec- tion 412 was repealed L. 1882, ch. 544. § 1753. Articles in imitation of food. A person, who sells or manufactures, exposes or offers for sale Its an article of food, any substance in imitation thereof, without 354 Art. 166] PUBLIC HEALTH [§§ 1754-1756-a disclosing the imitation by a suitable and plainly visible mark or brand, is guilty of a misdemeanor. DeriTation: Penal Code, § 430. § 1754. Putting noisome or unwholesome substances in high- way. A person, who deposits, leaves or keeps, on or near a highway or route of public travel, either on the land or on the water, any noisome or unwholesome substance, or establishes, maintains or carries on, upon or near a public highway or route of public travel, either on the land or on the water, any business, trade or manufacture which is noisome or detrimental to puplic health, is guilty of a misdemeanor, punishable by a fine of not less than one hundred dollars, or by imprisonment not less than three nor more than six months, or both. Derivation: Penal Code, § 431. § 1755. Obstructing passage of ambulance. A person, who wilfully stops or obstructs the passage of any am- bulance or vehicle used for the transportation of sick or wounded per- sons or animals upon any public street, highway or place, or who wil- fully injures the same, or wilfully drives any vehicle into collision therewith, is guilty of a misdemeanor. All sheriffs, constables and police officers must, when called upon by the persons in charge of such ambulance or vehicle, aid in placing sick or wounded persons or animals therein, and in enforcing the provisions of this section. Derivation: Penal Code, § 432. § 1756. Exposing person affected vtdth a contagious disease in a public place. A person, who wilfully exposes himself or another, affected with any contagious or infectious disease, in any public place or thoroughfare, except upon his necessary removal in a manner not dangerous to the public health, is guilty of a misdemeanor. Derivation: Penal Code, § 434. Matter of Boyce (1904), .43 Misc. 297, 88 N. Y. Supp. 841. § 1756-a. Disgraceful practices offending health and decency. A person who exhibits himself or another in public, and invites, solicits or allows others to throw or release a ball or other article at his head or other portion of his body, or the head or body of another, for compensation, reward or otherwise, or publicly engages in or takes any part in a game commonly known as " ball dodger," for a consideration or otherwise, or employs a person for such purpose, or at such place or places, for himself, or for another, invites, solicits or allows others to throw a ball or other article, to release a spring or other object or device whereby a person is thrown from a distance to a body of water or any receptacle, or commits any act or acts whereby any race of citi- zens of this state is held up to contempt or ridicule, is guilty of a mis- demeanor, punishable by a fine of not more than five hundred nor less than one hundred dollars, or by imprisonment for a term of not more than one year or less than three months, or both. (Added by L. 1917, ch. 471, in tffect May 14, 1917.) 355 §§ 1757-17G0] PUBLIC HEALTH [Art. 166 § 1757. Spraying fruit trees with poison. Any person who shall spray with, or apply in any way poison or any poisonous substance, to fruit trees while the same are in blossom, is guilty of a misdemeanor, punishable by a fine of not less than ten dollars nor more than fifty dollars for each offense; provided, however, that nothing in this section shall prevent the directors of the experi- mental stations at Ithaca and Geneva from conducting experiments in the application of poison and spraying mixtures to fruit trees while in blossom. Derivation: L. 1808, ch. 326. § 1758. Contamination of salt wells. A person who wilfully places, introduces or causes to flow or enter into any spring, brook or body of water, which is used in the manufacture of salt, or into any salt well, or salt mine, or into any cavity or reservoir beneath the surface of the earth from which salt or brine is taken or used in the manfacture of salt, any impure or deleterious substance or thing whatsoever, which is liable to pollute the waters thereof, or the brine or salt taken or manufactured therefrom, provided that this act shall not inteir^ fere with any existing system of drainage or sewerage, is punish- able by imprisonment in a penitentiary or state prison for not more than five years or by a fine of not more than two thousand dollars, or by both such fine and imprisonment. Derivation: Penal Code, § 447e, added L. 1901, ch.528. § 1759. Throwing gas tar or refuse into public waters. A person, who throws or deposits gas tar, or the refuse of a gas house or gas factory, or offal, refuse, or any other noxious, offensive, or poisonous substance into any public waters, or into any sewer or stream running or entering into such public waters, is guilty of a misdemeanor. Derivation: Penal Code, § 390. Mayor, etc. v. Furgueson (1881), 23 Hun, 594. § 1760. Wilfully poisoning food. A person who wilfully mingles poison with any food, drink or medicine, intended or prepared for the use of hu- man beings, and a person who wilfully poisons any spring, well or reservoir of water, is punishable by imprisonment in a state prison not exceeding ten years, or in a county jail not exceeding 356 Art. 166] PUBLIC HEALTH [§§; 1761-1763 one year, or by a fine not exceeding five hundred dollars, or both such fine and imprisonment. Derivation: Penal Code, § 358. § 1761. Acts of intoxicated physicians. A physician or surgeon, or person practicing as such, who, being in a state of intoxication, administers any poison, drug or medicine, or does any other act as a physician or surgeon, to another person, by which the life of the latter is endangered, or his health seriously aifeeted, is guilty of a misdemeanor. Derivation: Penal Code, § 357. § 1762. Misconduct of veterinary surgeons. A person who presents to a county clerk for registration as a practitioner of veterinary medicine or surgery any diploma or certificate fraudulently obtained or practices veterinary medicine and surgery v/ithout complying with or contrary to law, is guilty of a misdemeanor. This section shall not be constructed to pro- hibit students from prescribing under the supervision of pre- ceptors, or to prohibit gratuitous services in case of emergency, or the services of an authorized practitioner of a neighboring state when incidentally called into requisition. Derivation: Penal Code, § 356, added L. 1893, ch. 692. People V. Nyce (1884), 3 N. Y. Cr. 50, 34 Hun, 298; Wiel v. Cowles (1887), 45 Hun, 307; People v. Fulda (1889), 52 Hun, 65, 4 N. Y. Supp. 945, 7 N. Y. Cr. 1, 4, note, 4 N. Y. Cr. 139. § 1763. Illegal practice of embalming. Any person violating any provision of section two hundred and ninety-eight of the public health law, or any of the rules and regulations in reference to the business and practice of em- balming human dead bodies, made and duly approved as by article fourteen of said public health law prescribed, is guilty of a misdemeanor. Derivation: L. 1898, ch. 555, § 10. 867 §§ 1780-1782] PUBLIC JUSTICE [Art. 168 ARTICLE 168. FTJBUC JUSTICE. Section 1780. Disclosure of deposition taken by a magistrate. VtHl. Disclosure of depositions returned by grand jury with present- ment. 1782. Disclosing fact of indictment having been found. 1783. Grand juror disclosing what transpired before the grand jury. 1784. Stenographer disclosing evidence taken before grand jury. 1785. Instituting suit in false name. 1786. Maliciously procuring search warrant. 1787. Combinations to resist execution of process. 1788. Re-confining person discharged upon vrrit. 1789. Concealing persons entitled to writ of deliverance. 1700. Liquors not to be sold in court-house during court. 1791. Bringing liquors into or selling within jails prohibited. 1792. Misconduct of officer having charge of jurors. § 1780. Disclosure of deposition taken by a magistrate. A magistrate or clerk of any magistrate who wilfully permits any deposition taken on an examination of a defendant before such magistrate, and remaining in the custody of such magis- trate or clerk, to be inspected by any person, except a judge of a court having jurisdiction of the offense, the attorney-general, the district attorney of the county and his assistants, the com- plainant and his counsel, and the defendant and his counsel, is guilty of a misdemeanor. Derivation: Penal Code, § 145, as amended L. 1888, ch. 145. § 1781. Disclosure of depositions returned by grand jury with presentment. A clerk of any court who wilfully permits any deposition re- turned by a grand jury and filed with such clerk, to be inspected by any person, except the court, the deputies or assistants of such clerk, and the district attorney and his assistants, until after the arrest of the defendant, is guilty of a misdemeanor. Derivation: Penal Code. § 140. Smith V. Botens, 13 N. Y. Supp. 224. I § 1782. Disclosing fact of indictment having been found. A judge, grand juror, district attorney, clerk, or other officer, 358 Art. 168] PUBLIC JUSTICE [§§ 1783-1786 ■who, except in the due discharge of his official duty, discloses, before an accused person is in custody, the fact of an indictment having been found or ordered against him, is guilty of a mis^ demeanor. Derivation: Penal Code, § 1S6. § 1783. Grand juror disclosing what transpired before the grand jury. A grand juror who, except when lawfully required by a court or officer wilfully discloses: 1. Any evidence adduced before the grand jury ; or, 2. Anything which he himself or any other member of the grand juiry said, or in what manner he or any other grand juror voted, upon any matter before them. Is guilty of a misdemeanor. Derivation: Penal Code, § 157. People V. Steinhardt (1905), 47 Misc. 252, 256, 93 N. Y. Supp. 1026. § 1784. Stenographer disclosing evidence taken before grand jury. A stenographer appointed to take testimony given before a grand jury who permits any person other than the district attor- ney to take a copy of such testimony or of any portion thereof or to read the same or any portion thereof, except on the written order of the court, is guilty of a misdemeanor. Derivation: Penal Code, § 157a, added L. 1803, ch. 602. People V. Steinhardt (1905), 47 Misc. 257, 93 N. Y. Supp. 1026. § 1785. Instituting suit in false name. A person who institutes or prosecutes an action or other pro- ceeding in the name of another without his consent and contrary to the statutes, is guilty of a misdemeanor, punishable by im- prisonment not exceeding six months. Derivation: Penal Code, § 158. People V. Schermerhorn (1908), 59 Misc. 149, 112 N. Y. Supp. 222. § 17SS. Maliciously procuring search warrant. A person who maliciously, and without probable cause, pro- 359 §:§ 1787-1788] PUBLIC JUSTICE [Art. 198 cures a search warrant to be issued and executed, is guilty of a misdemeanor. Derivation: Penal Code, S 159. § 1787. Combinations to resist execution of process. A person, who enters into a combination with another to re- sist the execution of any legal process, or other mandate of a court of competent jurisdiction, under circumstances not amoimt- ing to a riot, is guilty of a misdemeanor. A person who leaves the state, with intent to elude any pro- vision of this section, or to commit any act without the state, which is prohibited by this section, or who, being a resident of this state, does any act without the state, which would be punish- able by the provisions of this section, if committed within the state, is guilty of the same offense and subject to the same punishment, as if the act had been committed within this state. No person shall be excused from giving evidence upon an in- vestigation or prosecution for any of the offenses specified in this section upon the ground that the evidence might tend to convict him of a crime. But such evidence shall not be received against him upon any criminal proceeding. Derivation: First par. Penal Code, § 457; second par. Penal Code, § 461; third par. Penal Code, § 469. § 1788. Re-confining person discharged upon writ. A person, who either solely, or as a member of a court, or in the execution of a judgment, order or process, knowingly re-commits, imprisons or restrains of his liberty, for the same cause, any per- son who has been discharged from imprisonment upon a writ of habeas corpus, or certiorari, is guilty of a misdemeanor, punish- able by a fine not exceeding one thousand dollars or by imprison- ment not exceeding six months, or both; and in addition to the punishment prescribed therefor, he forfeits to the party aggrieved, one thousand two hundred and fifty dollars to be recovered in a civil action. Derivation: Penal Code, § 379. Matter of Felton, 16 How. Pr. 303; Yates' Case, 3 Johns. 318, 6 Johns. 6S7; Matter of Fitz, 04 Mo. 205, 27 Am. Kep. 218; Matter of Crow, 60 Wis. 349, 30 Alb. L. J. 210. 380 Art 168] PUBLIC -TUSTICE [§§ 1789-1792 § 1789. Concealing persons entitled to writ of deliverance. A person, having in his custody or power or under his re- straint, one who would be entitled to a writ of habeas corpus or certiorari, or for whose relief a writ of habeas corpus or cer- tiorari has been issued who, with intent to elude the service of such writ, or to avoid the effect thereof, transfers the party to the custody, or places him under the power or control of another, or conceals or changes the place of his confinement, or who without lawful excuse refuses to produce him, is guilty of a misdemeanor, punishable as prescribed in the last section. Derivation: Penal Code, § 380. Rising V. Dodge, 2 Duer, 42. § 1790. Liquors not to be sold in court-house during court. Strorig,spirituous, or fermented liquor, or wine, shall not, on any pretense whatever, be sold within a building established as a court-house for holding courts of record, while such a court is sitting herein. A person violating this section is guilty of a misdemeanor. Derivation: Code of Civ. Proc, §§ 32, 33. § 1791. Bringing liquors into or selling within jails pro- hibited. A person who brings into or sells in a jail, strong, spirituous, fermpijted, or other liquor, or wine, contrary to the provisions of sections three hundred and forty-nine or three hundred and fifty of the prison law ; or a sheriff, keeper of a jail, assistant keeper, or an officer, or person employed in or about a jail, who knowingly suffers liquor or wine to be sold or used therein, contrary to either of said sections, is gnilty of a misdemeanor, and shall be punished accordingly. A conviction also operates as a forfeiture of his office. Derivation: Code Civ. Proc, § 130. § 1792. Misconduct of officer having charge of jurors. An officer to whose charge any juror is committed by a court or magistrate, who negligently or wilfully permits such juror, withr out leave of the court or magistrate : 1. To receive any communication from any person; or, 2. To make any communication to any person; or, 361 S 1792] PUBLIC JUSTICE [Art. 168 3. To obtain or receive any book or paper, or refreshment; or, 4. To leave the jury room, Is guilty of a misdemeanor. The word " juror " as used in this section includes a talesman, and extends to jurors in all courts whether of record or not of record, and in special proceedings, and before any officer author° ized to impanel a jury in any case or proceeding. Derivations Venal Code, § 7V ; last par. Penal Code. S 81. ^'*.?- Art. 170] PCTBLIC OFFICES, ETC. [§ 1820 ARTICIii: 170. PUBLIC OFFICES AND OFFICERS. riECTioN 1820. Acting in a public office without having qualified. 1820a. Notary public or commissioner of deeds, acting without ap- pointment; fraud in office. 1821. Acts of officer de facto. 1822. Giving or ofl'ering bribes. 1823. Asking or receiving bribss. 1824. Attempting to prevent officer from performing duty. 1825. Resisting officer, 1826. Taking unlawful fees. 1827. Comptroller not to be interested in tax sales. 1828. Prison officers not to be interested in prison contracts. 1829. Taking reward for omitting or delaying official ac Ls. 1830. Taking fees for services not rendered. 1831. Taking unlawful reward for services in extradition of fugitives. 1832. Corrupt bargain for appointment. 1833. Selling right to official powers. 1834. Appointment avoided by conviction. 1835. Intrusion into public office. 1836. Officer refusing to surrender to successor. 1837. Administrative officers. 1838. Injury to records and misappropriation by ministerial oflieera. 1839. Permitting escapes, and other unlawful acts, coniiiiitteJ by ministerial officers. 1840. Neglecting or refusing to execute process. 1841. Provision as to neglect of duty. 1842. Neglect of county officer to make report. 1843. Neglect of duty by superintendent or overseer of the poor. 1844. Delaying to take person arrested for crime before a magistrate. 1845. Special peace officers to be citizens. 1846. Making arrest witliout lawful authority. 1847. Misconduct in executing search warrant. 1848. Refusing to aid officer in making an arrest. 1849. Refusing to make an arrest. 1850. Resisting execution of process and aiding escapes in county which has been proclaimed in insurrection. 1851. Resisting public officer in the discharge of his duty. 1852. Buying demands by a justice or constable for suit before a justice. 1853. Giving inducement to bring suit before a justice. 1854. Forfeiture of office. 1855. Receiving claims, in what cases allowable. 1856. Application of previous sections to persons prosecuting in person. 1857. Omission of duty by pubhc officer. 1858. Falsely marking enrolled person exempt. 363 §§ 1820^1&21] PUBLIC OFFICERS, ETC. [Art. 170 Seohon 1859. Neglect to return names of constables, 1860. Falsely certifying as to record of deeds and instruments. 1861. False certificates. 1862. Penalty for recording Instruments without acknowledgment. 1863. Auditing and paying fraudulent claims upon the state or 9 municipal corporation. 1864. Obtaining proceeds of fraudulent audit or payment. 1865. Misappropriation and falsification of accounts by public officers. 1866. Violations of law by public officers. 1867. Misappropriation by county treasurer. 1868. Officials not to be interested in sales, leases or contracts. 1869. County clerks omitting to publish statements required by law. 1870. Obstructing officer in collecting revenue. 1871. School district trustee not to draw draft on supervisor in certain cases. 1872. Fraudulently presenting bills or claims to public officers for payment. 1873. Taking property from officer's custody. 1874. Neglecting to make transcripts or making false certificates. 1875. Violation by sheriff of certain provisions relating to pris- oners. 1876. Misdemeanor for judge, justice or magistrate to permit any but attorneys to practice in his court. S 1820. Acting in a public office without haying qnalifled. A person who executes any of the functions of a public office without having taken and duly filed the requird oath of office, or without having executed and duly filed the required security, as prescribed by law, is guilty of a misdemanor. Derivation: Penal Code, § 42, as amended L. 1893, ch. 692. Foot V. Stiles (1874), 57 N. Y. 399. § 1820-a. Notary public or commissioner of deeds; acting without ap- pointment; fraud in office. 1. Any person who holds himself out to the public as being entitled to act as a notary public or commissioner of deeds, or who assumes, uses or advertises the title of notary public or commissioner of deeds, or equiva- lent terms in any language, In such a manner as to convey the impression that he Is a notary public or commissioner of deeds without having first been appointed as notary public or commissioner of deeds, or 2. A notary pubic or commissioner of deeds, who in the exercise of the powers, or in the performance of the duties of such office shall practice any fraud or deceit, the punishmnt for which is not otherwise provided for by this act, shall be guilty of a misdemeanor. (Added L. 1910, ch. 471, In effect September 1, 1910.) S 1881. Acts of officer de facto. The last section must not be construed to affect the validity of acts done by a person exercising the functions of a public office in fact, where persons other than himself are interested in maintaining the validity of such acts. Derivation: Penal Code, § 43. Matter of Kendall (1881), 85 N. Y. 305; People ex rel. Sinkler v. Terry (1888), 108 N. Y. 1, rev'g 42 Hun, 273; see, also, People v. Albertson, 8 How. 363; People v. Cccllins, 7 Johns. 549; Conover v. Devlin, 15 How. 470; People V. Cook, 14 Barb. 324; Greenleaf v. Low, 4 Den. 168; Hamlin v. Dingman, 5 Lans. 61; People v. Peabody. 6 Abb. 228; Read v. Buffalo, 3 Keyes 445; Rochester & Gen. Val. R. Co. v. Clark Nat. Bank, 60 Barb. 234; People v. Stevens, 5 Hill, 616; McKinstry v. Tanner, 9 Johns, 135; Weeks v. Ellis, 2 Barb. 324; Wilcox v. Smith, 5 Wend. 231. 364 AsL 170] PUBLIC OFFICES, ETC. [§§ 1822-1825 § 1822. Giving or offering bribes. A person who gives or offers a bribe to any executive officer of this state with intent to influence him in respect to any act, de- cision, vote, opinion, or other proceeding as such officer, is punish- able by imprisonment in a state prison not exceeding ten years, or by fine not exceeding five thousand dollars, or by both. Derivation: Penal Code, § 44. People V. Sharp (1887), 107 N. Y. 439, 5 N. Y. Cr. 569, reVg 45 Hun, 460; see also State v. Ellis, 33 N. J. L. 102. § 1823. Asking or receiving bribes. An executive officer, or person elected or appointed to an execu- tive office, who asks, receives or agrees to receive any bribe, upon an agreement or understanding that his vote, opinion or action upon any matter then pending or which may by law be brought before him in his official capacity, shall be influenced thereby, is punishable by imprisonment in a state prison not exceeding ten years, or by a fine not exceeding five thousand dollars, or by both; and in addition thereto forfeits his office and is forever disqualified from holding any public office under this state. Derivation: Penal Code, § 45. People T. Markham, 64 Cal. 147, 49 Am. Rep. 700; Walsh y. People, 64 III. fi8, 16 Am. Rep. 569. § 1824. Attempting to prevent officer from performing duty. A person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, is guilty of a misdemeanor. Derivation: Penal Code, § 46. People V. Hall (1884), 31 Hun, 404, 2 N. Y. Cr. 134; People t. Hoehstim (1901), 36 Misc. 562, 569, 73 N. Y. Supp. 626. § 1825. Resisting officer. A person who knowingly resists, by the use of force or violence, any executive officer, in the performance of his duty, is guilty of a misdemeanor. Derivation: Penal Code, § 47. People v. Hoehstim (1901), 36 Misc. 667, 674, 73 N. Y. Supp. B26 §§ 1826-1828] PUBLIC OFFICES, ETC. [Art. 170 § 1826. Taking unlawful fees. A public officer or a deputy, clerk, assistant or other subor- dinate of a public officer, or any person appointed or employed by or in the office of a public officer, who shall, in any manner act for or in behalf of any such officer, who asks or receives, or consents or agrees to receive, any emolument, gratuity or reward, or any promise of emolument, gratuity or reward, or any money, property or thing of value or of personal advantage, except such as may be aiithorized by law, for doing or omitting to do any official act, or for performing or omitting to perform, or for hav- ing performed or omitted to perform any act whatsoever directly or indirectly related to any matter in respect to which any duty or discretion is by or in pursuance of law imposed upon or vested in him, or may be exercised by him by virtue of his office, or appointment or employment or his actual relation to the matter, shall be guilty of a felony, punishable by imprisonment for not more than ten years or by a fine of not more than four thousand dollars, or both. Derivation: Penal Code, § 48, as amended L. 1800, ch. 336. People V. Bissert (1902), 71 App. Div. 118, 172 N. Y. 643, 75 N. Y. Supp. 630. § 1827. Comptroller not to be interested in tax sales. The comptroller, or any person employed in his office, who shall be directly or indirectly interested in any tax sale made by such comptroller, or in the title acquired by such sale, or in any money paid or to be paid for the redemption of any lands sold for taxes or on the cancellation of any tax sale ; or any person who shall pay or give to the state comptroller, or to any employee in his office, any compensation, reward or promise thereof for any service or services performed or to be performed in regard to such sale, redemption, cancellation or such tax title, is guilty of a mis- demeanor. A sale in violation of this section is void. Derivation: Penal Code, § 48a, added L. 1803, ch. G02. § 1828. Prison officers not to be interested in prison con- tracts. A superintendent of state prisons, or agent, warden or other officer or guard, employed at either of the prisons, who : 306 Art. 170] PUBLIC OFFICES, ETC. [§§ 1829-1831 1. Shall be directly or indirectly interested in any contract, purchase or sale, for, by, or on account of such prison ; or, 2. Accepts a present from a contractor or contractor's agent, directly or indirectly, or employs the labor of a convict or another person employed in such prison on any work for the private bsnefit of such superintendent, officer or guard, is guilty of a misde- meanor, except that the agent and warden shall be entitled to employ prisoners for necessary household service. Derivation: Penal Code, § 48b, added L. 1893, cli. 092. § 1829. Taking reward for omitting or delaying official acts. An executive officer asks or receives any emolument, gratuity or reward, or any promise of any emolument, gratuity or reward, for omitting or deferring the performance of any official duty, is guilty of a misdemeanor. Derivation: Penal Code, S 49. § 1830. Taking fees for services not rendered. An executive officer who asks or receives any fee or compensa- tion for any official service which has not been actually rendered, except in cases of charges for prospective costs, or of fees demand- able in advance in the cases allowed by law, is guilty of a mis- demeanor. Derivation: Penal Code, § 50. § 1831. Taking unlawful reward for services in extraditiotk of fugitives. An officer of this state who asks or receives any fee or com- pensation of any kind for any services rendered or expense incur- red in procuring from the governor of this state a demand upon the executive authority of a state or territory of the United States, or of a foreign government, for the surrender of a fugitive from justice ; or for any service rendered or expense incurred in procuring the surrender of such fugitive, or of conveying hi in to this state, or for detaining him therein, except upon an employ- ment by the governor of this state, is guilty of a misdemeanor. Derivation: Penal Code, § 51, as amended L. 1882, cli. 384. People ex re!. Gardenier v. Supervisors (1892), 134 N. Y. 1, aff'g 56 Hun, 20, 8 N. Y. Supp. 752; Ellis v. Jacob (1897), 17 App. Div. 471, 45 N. y. Supp. 177. 367 §§ 1832-1834] PUBLIC OFFICES, ETC. [Art. 170 § 1832. Corrupt bargain for appointment. 1. A person who gives or offers to give, any gratuity or reward, in consideration that himself or any other person shall be ap- pointed to a public office, or to a clerkship, deputation, or other subordinate position, in such an office, or shall be permitted to exercise, perform, or discharge any prerogatives or duties, or to receive any emoluments, of such an office, is guilty of a misde- meanor. 2. A person who asks or receives, or agrees to receive, any gratuity, or reward, or any promise thereof, for appointing an- other person, or procuring for another person an appointment, to a public office or to a clerkship, deputation, or other subordinate position in such an office, is guilty of a misdemeanor. If the per^ son so offending is a public officer, a conviction also forfeits his office. Derivation: Penal Code, §§ 62, 63. Gray v. Hook (1851), 4 N. Y. 449; Deyoe v. Woodworth (1894), 144 N. Y. 448, aff'g 70 Hun, 599, 24 N. Y. Supp. 373; People v. Koller (1906), 116 App. Div. 175, 101 N. Y. Supp. 518, 20 Crim. Eep. 423; Becker v. Ten Eyck, 6 Paige, 68; Mott ▼. Robins, 1 Hill, 21; Robinson v. Kalbfleisch, 5 Th. & C. 212; Tappan v. Brown, 9 Wend. 176; State v. Purdy, 36 Wis. 213, 17 Am. Rep. 485. § 1833. Selling right to official powers. A public officer who, for any reward, consideration or gratuity, paid, or agreed to be paid, directly or indirectly, grants to another the right or authority to discharge any functions of his office, or permits another to make appointments or perform any of its duties, is guilty of a misdemeanor, and a conviction for the same forfeits his office, and disqualifies him forever from holding any office whatever under this state. Derivation: Penal Code, § 54. § 1834. Appointment avoided by conviction. A grant, appointment, or deputation, made contrary to the provisions of either subdivision two of section eighteen hundred and thirty-two, or section eighteen hundred and thirty-three, is avoided and annulled by a conviction for the violation of either of those sections, in respect to such grant, appointment, or depu- tation; but any official act done before conviction, is unaffected by the conviction. Berivatloii: Penal Code, § 56. 368 Art. 170] PUBLIC OFFICES, ETC. [§§ 1835-1838 § 1835. Intrusion inlo public office. A person who wilfully intrudes himself into a public office, to which he has not been duly elected or appointed, or who, having been an executive or administrative officer, wilfully exercises any of the functioBis of his office, after his right So to do has ceased, is guilty of a misdemeanor. Derivation: Penal Code, § 56. Hamlin v. Karsafer, 15 Oreg. 456, 3 Am. St. Rep. 176. § 1836. Officer refusing to surrender to successor. A person who, having been an executive or administrative offi- cer, wrongfully refuses to surrender the official seal, or any books or papers, appertaining to his office, xipon the demand of his law- ful successor, is guilty of a misdemeanor. Derivation: Penal Code, § 57. Matter of Baker, 11 How. 418; In re Bartlett, 9 How. 414; Cobee T. Davis, 8 How. 367; Conover's Case, 5 Abb. Pr. 73; Matter of Davis, 18 How. 323; Devlin's case, 5 Abb. Pr. 281; People v. Dikeman, 7 How. 367; People V. Stevens, 5 Hill, 616; Matter of Whiting, 2 Barb. 513; Welch T. Cook, 7 How. 282. § 1837. Administrative officers. The various provisions of the preceding sections of this artide which relate to executive officers apply to administrative officers, in the same manner as if administrative and executive officers were both mentioned. Derivation: Penal Code, $ 58. § 1838. Injury to records and misappropriation by ministe- rial officers. A sheriff, coroner, clerk of a court, constable or other minis- terial officer, and every deputy or subordinate of any ministerial officer, who: 1. Mutilates, destroys, oonoeaJs, erases, obliterates or falsifies any record or paper appertaining to his office ; or, 2. Fraudulently appropriates to his own use or to the use of another person, or secretes with intent to appropriate to such use, any money, evidence of debt or other property intrusted to him in virtue of his office. Is guilty of felony. Derivation: Penal Code, § 114. Ayres v. Covill, 18 Barb. 263. 869 §§ 1839-1841] PUBLIC OFFICES, ETC. [Art. 170 § 1839. Permitting escapes, and other unlawful acts, com- mitted by ministerial officers. A sheriff, coroner, clerk of a court, constable, or other minis- terial officer, and every deputy or subordinate of any ministerial officer, who : 1. Keceives any gratuity, or reward, or any security or promise of one, to procure, assist, connive at or permit any prisoner in his custody to escape, whether such escape is attempted or not ; or, 2. Commits any unlawful act tending to hinder justice. Is guilty of a misdemeanor. A conviction of a sheriff or other officer also operates as a for- feiture of his office, and disqualifies him forever thereafter from holding the same. The governor shall, upon application, grant a hearing to a person convicted under this section, and if he be satis- fied that the facts warrant it, he may, by order, relieve such person from such disqualification. (Amended by L. 1917, ch. 226, in effect April 20, 1917.) SerxTation: Penal Code, g 115. Last sentence, Cod« Civil Proc, § 159, in part. Bhist V. Collier (1901), 62 App. Div. 479, 70 N. Y. Supp. 774; see also Blue V. Com., 4 Watts, 215. § 1840. Neglecting or refusing to execute process. An officer who, in violation of a duty imposed upon him by law to receive a person into his official custody, or into a prison under his charge, wilfully neglects or refuses so to do, is guilty of a mis- demeanor. Derivation: Penal Code, § 116. Blust V. Collier (1901), 62 App. Div. 479, 70 N. Y. Supp. 774; see also Smith V. Botens, 13 N. Y. Supp. 224. People V. Meakim (1892), 133 N. Y. 214, 8 N. Y. Cr. 409, aff'g 61 Hun, 327, 15 N. Y. Supp. 917, 8 N. Y. Cr. 308; People v. Willis (1899), 158 N. Y. 392, 34 App. Div. 203, 54 N. Y. Supp. 642, 14 N. Y. Cr. 414; People v. Herlihy (1901), 66 App. Div. 534, 16 N. Y. Cr. 235, 73 N. Y. Supp. 236, rev'g 35 Misc. 711, 72 N. Y. Supp. 389, 16 CrLro. Eep. 38; People ex reL Devery v. Jerome (1901), 36 Misc. 256, 73 N. Y. Supp. 306; People v. Glen- non (1903), 78 App. Div. 271, 79 N. Y. Supp. 997, rev'd 175 N. Y. 46; De- laney v. Flood (1904), 45 Misc. 100, 91 N. Y. Supp. 672; Sharp v. Erie Rai'road Co. (1904), 90 App. Div. 504, 85 N. Y. Supp. 553; see also People V. Bedell, 2 Hill, 196; People v. Brooks, 1 Den. 457; People v. Com. Council 16 Abb. N. C. 114, 2 How. Pr. (N. S.) 68; Williams v. People, 15 Week Dig. 317. § 1841. Provision as to neglect of duty. A public officer, or person holding a public trust or employment, upon whom any duty is enjoined by law, who wilfiiUy neglects to 370 Art. 170] PUBLIC OFFICES, ETC. [§§ 1842-1845 perform tL;j duty, is guilty of a misdemeanor. This and section eighteen hundred and forty do not apply to cases of official acts or omissions the prevention or punishment of which is otherwise specially p'rovided by statute. Derivation: Penal Code, § 117. § 1842. Neglect of county officer to make report. A county officer or an officer whose salary is paid by the county, who neglects or refuses to make a report under oath to the board of supervisors of such county on any subjects or matters connected with the duties of his office, whenever required by resolution of such board, is guilty of a misdemeanor. DeriTation: Penal Code, § 117a, added L. 1893, ch. 692. § 1843. Neglect of duty by superintendent or overseer of the poor. The county superintendents of the poor, or any overseer of the poor, whose duty it shall be to provide for the support of any bastard and the sustenance of its mother, who shall neglect to per- form such duty, shall be guilty of a misdemeanor, and shall on conviction, be liable to a fine of two hundred and fifty dollars, or to imprisonment not exceeding one year, or by both such fine and imprisonment. Derivation: Penal Code, § 117b, added L. 1896, cli. 550. § 1844. Delaying to take person arrested for crime before a magistrate. A public officer or other person having arrested any person upon a criminal charge, who wilfully and wrongfully delays to take such person before a magistrate having jurisdiction to take his examination, is guilty of a misdemeanor. Derivation: Penal Code, § 118. People ex lel. Clapp v. Listman (1903), 84 App. Div. 033, 82 N. Y. Supp. 784, air'g 40 Misc. 372. § 1845. Special peace officers to be citizens. No sheriff of a county, mayor of a city, or officials, or other persons authorized by law to appoint special deputy sheriffs, special constables, marshals, policemen, or other peace officei-s in this state, to preserve the public peace or quell public disturbance, shall here- after, at the instance of any agent, society, association or corpora- 371 § 1846] PUBLIC OFFICES, ETC. [Art 170 tioii, or otherwise, appoint as such special deputy, special con- stable, marshal, policeman, or other peace officer, any per- son who shall not be a citizen of the United States and a resi- dent of the state of New York, and entitled to vote therein at the time of his appointment, and a resident of the same county as the mayor or sheriif or other oificial making such appoint- ment; and no person shall assume or exercise the functions^ powers, duties or privileges incident and belonging to the office of special deputy sheriff, special constables, marshal or policeman, or other peace officer, without having first received his appoint- ment in vn-iting from the authority lawfully appointing him. A violation of the provisions of this section is a misdemeanor. Derivation: Penal Code (in part), § 119, as amended L. 1892, ch. 272. For remainder of section, see § 1846, post. People V. Glennon (1903), 78 App. Div. 271, 79 N. Y. Supp. 997, rev'd 176 N. Y. 46. § 1846. Making arrest without lawful authority. Any person who shall, in this state, without due authority, exercise, or attempt to exercise the functions of, or hold him- self out to any one as a deputy sheriff, marshal, or policeman, constable or peace officer, or any public officer, or person pretend- ing to be a public officer, who, unlawfully, under the pretense or color of any process, arrests any person or detains him against his will, or seizes or levies upon any property, or dispossesses any one of any lands or tenements without a regular process there- for, is guilty of a misdemeanor. But nothing herein con- tained shall be deemed to affect, repeal or abridge the powers authorized to be exercised under sections one hundred and two, one hundred and four, one hundred and sixty-nine, one hundred and eighty-three, eight hundred and ninety-five, eight hundred and ninety-six and eight hundred and ninety-seven of the code of criminal procedure; or under section ninety of the railroad law; or under section eleven hundred and forty-seven of this chapter. All places kept for summer resorts and the grounds of racing associations in the counties of New York, Kings and West- chester, are hereby exempted from the provisions of this section. Derivation: Penal Code (in part), § 119, as amended L. 1892, eh. 272. Bee cases under section 1845. 372 Art. 170] PUBLIC OFFICES, ETC. [§§ 1847-1853 I 1847. Misconduct in executing search warrant. An officer, who, in executing a search warrant, wilfully exceeds his authority, or exercises it with unnecessary sevei-ity, is guilty of a misdemeanor. Derivation: Penal Code, § 120. Phelps y. McAdoo (1905), 47 Misc. 524, 94 N. Y. Supp. 265, 19 Crim Hep. 127; see also Dell t. Clapp, 10 Jobns. 263. § 1848. Refusing to aid officer in making an arrest. A person, who, after having been lawfully commanded to aid an officer in arresting any person, or in re-taking any person who has escaped from legal custody, or in executing any legal process, wil- fully neglects or refuses to aid such officer is guilty of a mis- demeanor. Derivation: Penal Code, § 121. § 1849. Refusing to make an arrest. A person, who, after having been lawfully commanded by any magistrate to arrest another person, wilfully neglects or refuses so to do, is guilty of a misdemeanor. Derivation: Penal Code, § 122. § 1850. Resisting execution of process and aiding escapes in county vvrhich has been proclaimed in insurrection, A person, who, after proclamation issued by the governor de- claring a county to be in a state of insurrection, resists, or aids in the resisting, the execution of process in such county, or who aids or attempts the rescue or escape of another from lawful cus- tody or confinement in such county, or who resists, or aids in re- sisting, a force orderd out by the governor to quell or suppress an insurrection, is guilty of a felony. Derivation: Penal Code, § 123, as amended L. 1882, ch. 384. § 1851. Resisting public officer in the discharge of his duty. A person who, in any case or under any cireumstanees not otherwise specially provided for, wilfully resists, delays, or obstructs a public officer in discharging, or attempting to discharge, a duty of his office, is gniHy of a misdemeanor. Derivation: Penal Code, § 124. Kline v. Hibbard (IS94), 80 Hun, 50, 29 N. Y. Snpp. 807; People v. Hochstim (1901), 36 Misc. 562, 574, 73 N. Y. Supp. 626. 373 §§ 1852-1856] PUBLIC OFFICES, ETC. [Art 170 § 1852. Buying demands by a justice or constable for suit before a justice. A justice of the peace or a constable who, directly or indirectly, buys or is interested in buying any thing in action, for the pur- pose of commencing a suit thereon before a justice, is guilty of a misdemeanor. Derivation: Penal Code, § 137. § 1853. Giving inducement to bring suit before a justice. A justice of the peace or constable who, directly or indirectly, gives, or promises to give, any valuable consideration to any p^r^ son as an inducement to bring, or in consideration of having brought, a suit thereon before a justice, is guilty of a misdemeanor. Derivation: Penal Code, § 138, as amended L. 1882, ch. 384. § 1854. Forfeiture of office. A person convicted of a violation of either of the two preceding sections, in addition to the punishment, by fine and imprisonment, prescribed therefor by this article, forfeits his office. Derivation: Penal Code, § 139. Matter of Manlieim (1906), 113 App. Div. 137, 99 N. Y. Supp. 87. § 1855. Receiving claims, in what cases allowable. Nothing in the three preceding sections shall be construed to prohibit the receiving in payment of any thing in action for any estate, real or personal, or for any services of an attorney or counsellor actually rendered, or for a debt antecedently con- tracted ; or the buying or receiving of any thing in action for the purpose of remittance, and without any intent to violate the three preceding sections. Derivation: Penal Code, § 140. Baldwin v. Latson, a Barb. Ch. 300; Goodell v. People, 5 Park. 206; Mann V. Faircliild, 2 Keyes, 108; Eamsey v. Gould, 57 Barb. 308; People v. VVal- bridge, 3 Wend. 120; Watson v. McLaren, 19 Wend. 557. § 1856. Application of previous sections to persons prosecut- ing in person. The provisions of sections two hundred and seventy-four, two hundred and seventy-five, eighteen hundred and fifty-three and 374 Art. 170] PUBLIC OFFICES, ETC. [§§ 1857-1859 eighteen hundred and fifty-five, relative to the buying of claims by a justice of the peace or constable, with intent to prosecute them, apply to every case of such buying a claim, or lending or advanc- ing money, by any person prosecuting in person an action or legal proceeding. Derivation: Penal Code, § 141, as amended L. 1882, eh. 384. § 1857. Omission of duty by public officer. Where any duty is or shall be enjoined by law upon any public ofiicer, or upon any person holding a public trust or employment, every wilful omission to perform such duty, where no special pro- vision shall have been made for the punishment of such delin- quency, is punishable as a misdemeanor. Derivation: Penal Code, § 154. People V. Cook (1853), 8 N. Y. G7; Gardner v. People (1874), 3 Hun, 222; Conneis v. Adams (1878), 13 Hun, 427; People v. Ryall (18!)!)), 58 Eun, 235, 11 N. Y. Supp. 828; People v. Long Island R. Co. (18i)2), 134 N. Y. 506, afl'g 58 Hun, 412, 12 N. Y. Supp. 41; People v. Willis (1898), 34 App. Div. 203, 54 N. Y. Supp. 642, afT'd 158 N. Y. 3!)2; People v. Tliomas (19U0), 32 Misc. 170, C6 N. Y. Supp. 191; People v. Heililiy (1901), 66 App. Div. 534, rev'g 35 Misc. 711, 73 N. Y. Supp. 236, 16 Crim. Rep. 240, 72 N. Y. Supp. 389, 16 Crim Rep. 38; People ex rel. Clapp v. Listman (1903), 40 Misc. 375, S2 N. Y. SUpp. 263; People v. Erie Railroad Co. (1904), 90 App. Div. 504, 85 N. Y. Supp. 553; Delaney v. Flood (1904), 45 Misc. 97, 91 N. Y. Supp. 672; rev'd 183 N. Y. 323 (1906) ; see also Bentley V. Phelps, 27 Barb. 524; People v. Brooks, 1 Den. 457; People v. Calkoun, 3 Wend. 421; Clark v. Miller, 47 Barb. 38; People v. Coon, 15 Wend. 276; Bartlett v. Orozier, 17 Johns. 439; Green v. Eumsey, 2 Wend. 611; People v. Norton, 7 Barb. 477; In re Pickett, 55 How. 491; People v. Stocking, 32 How. 49, 5U Barb. 573. § 1858. Falsely marking enrolled person exempt. A county clerk who marks " exempt " any person enrolled as liable to military duty, whom ho kno^vs not to ba exempt, is guilty of a misdemeanor. Derivation: Penal Code, § 154a, added L. 1803, cli. 692. § 1859. Neglect to return names of constables. A town clerk who wilfully omits to return to the county cle.fL Hao name of a person who has qualified as constable, pursuan'„ to law, is punishable by a fine not exceeding ten dollars. Derivation: Penal Code, § 161. 373 S§ 1860-1863] PUBLIC OFFICES, ETC. [Art. 170 § 1860. Falsely certifying as to record of deeds and instru- ments. An oflScer authorized by law to record a conveyance of real property, or of any other instminent, which by law may be re- corded, who knowingly and falsely certifies that such a conveyance or instrument has been recorded, is guilty of a felony. Derivation: Penal Code, § 1G2. § 1861. False certificates. A public officer who, being authorized by law to make or give a certificate or other writing, knowingly makes and delivers as true such a certificate or writing, containing any statement which he knows to be false, in a case where the punishment thereof is not expressly provided by law, is guilty of a misdemeanor. Sarivation: Penal Code, § 1G3. § 1862. Penalty for recording instruments without acknowl- edgment. A public officer authorized to file or record any instrument or conveyance of, or affecting property which is duly proved or ac- knowledged, who knowingly files or records any such instrument or conveyance which is not accompanied by a certificate according to law, of the proof or acknowledgment, is guilty of a misdemeanor. Derivation: Penal Code, § 104. People V. Brown, 7 Wend. 403. § 1863. Auditing and paying fraudulent claims upon the state or a municipal corporation. A public officer, or person holding or discharging the duties of any office or place of trust under the state, or in any county, town, city or village, a part of whose duty is to audit, allow or pay, or take part in auditing, allowing or paying, claims or de- mands upon the state, or such county, town, city or village, who knowingly audits, allows or pays, or directly or indirectly con- sents to, or in any way connives at the auditing, allowance or pay- ment of any claim or demand against the state or such county, town, city or village, which is false or fraudulent, or contains charges, items or claims, which are false or fraudulent, is guiltyi of felony, punishable by imprisonment for a term not exceeding 376 Art. 170] PUBLIC OFFICES, ETC. [§§ 1864-1885 five years, or by a fine not exceeding five thousand dollars, or by both- Desivation: Penal Code, § 165, as amended L. 1892, eh. 662, People V. Stock (1896), 21 Misc. 147, 47 N. Y. Supp. 94, 12 Im. Y. Cr. 420; People v. Klipfel (1899), 160 N. Y. 371, 14 N. Y. Cr. 169, aff'g 37 App. Div. 224, 55 N. Y. Supp. 789; People v. Fielding (1899), 36 App. Uiv. 401, 55 N. Y. Supp. 530;People v. King (1897), 19 Misc. 98, 43 N. Y. Supp. 975. § 1864. Obtaining proceeds of fraudulent audit or payment. A person who, being or acting as a public officer or otherwise, by wilfully auditing, or paying, or consenting to, or conniving at the auditing or payment of a false or fraudulent claim or de- mand, or by any other means, wrongfully obtains, receives, con- verts, disposes of or pays out or aids, or abets another in obtain- ing, receiving, converting, disposing of, or paying out any money or property, held, owned, or in the possession of the state, or of any city, county or village, or other public corporation, or any board, department, agency, trustee, agent or officer thereof, is guilty of a felony, punishable by imprisonment for not less than three nor more than five years, or by a fine not exceeding five times the amount of value of the money or the property converted, paid out, lost or disposed of by means of the act done or abetted by such person, or by both such imprisonment and fine. The amount of any such fine when paid or collected, shall be paid to the treasury of the corporation or body injured. A conviction imder this section forfeits any office held by the offender, and renders him incapable thereafter of holding any office or place of trust. A transfer in whole or part of any deposit with any bank or other depositary, or of any credit, claim or demand upon such depositary, whereby the right, title or possession of the owner cr holder of such deposit, or of any custodian thpreof. is (im- paired or affected, is a convrrsirm thereof under this section. Deiivation: Penal Code, §§ 166, 167. People V. Willis (18518), 24 Misc. 539, 54 N. Y. Supp. 129, 13 N. Y. Cr. 348, 14 N. Y. Cr. 414, 158 N. Y. 392, 14 N. Y. Cr. 72. § 1865. Misappropriation and falsification of accounts by public officers. A public officer, or a deputy, or clerk of any such officer, and any other person receiving money on behalf of, or for account of 377 §§ 1866-1867] PUBLIC OFIICES, ETC. [Art. 170 the people of this state, or of any department of the government of this state, or of any bureau or fund created by law, and in which the people of this state, are directly or indirectly interested, or for or on account of any city, county, village or town, who: 1. Appropriates to his own use, or to the use of any person not entitled thereto, without authority of law, any money so received by him as such officer, clerk or deputy, or otherwise ; or, 2. Knowingly keeps any false account, or makes any false entry or erasure in any account of, or relating to, any money so received by him ; or, 3. Fraudulently alters, falsifies, conceals, destroys or obliterates any such account; or, 4. Wilfully omits or refuses to pay over to the people of this state or their officer or agent authorized by law to receive the same, or to such city, village, county, or town, or the proper officer or authority empowered to demand and receive the same, any money received by him as such officer when it is his duty imposed by law to pay over, or account for, the same. Is guilty of a felony. Derivation: Penal Code, § 470. Bork V. People (1883), 91 N. Y. 5, I N. Y. Cr. 375, aff'g 26 Hun. 670, 1 N. Y. Ciim. 3G8; People v. Lyon (188.i), 99 N. Y. 210, rev'g 33 Hun, 623; People v. Church (1885), 3 N. Y. Cr. 57, 1 How. Pr. (N. S.) 369. § 1866. Violations of law by public officers. An officer or other person mentioned in the last section who wil- fully disobeys any provision of law regulating his official conduct, in cases other than those specified in that section is guilty of a misdemeanor, punishable by a fine not exceeding one thousand dollars, or imprisonment not exceeding two years, or both. Derivation: Penal Code, § 471. People ex rel. Clapp v. Listman (1003), 40 Misc. 372, 82 N. Y. Supp. 263. § 1867. Misappropriation by county treasurer. A county treasui'er, who wilfully misappropriates any moneys, funds or securities, received by or deposited with him as such treasurer, or who is guilty of any other malfeasance or wilful neglect of duty in his office, is punishable by a fine not less than five hundred dollars nor more than ten thousand dollars, or by 378 Art. 170] PUBLIC OFFICES, ETC. [§§ 1868-1870 imprisonment in a state prison not less than one year or mora than five years, or by both such fine and imprisonment. DeriTation: Penal Code, § 472. § 1868. Officials not to be interested in sales, leases or con- tracts. A public officer or school officer, who is authorized to sell or lease any property, or to make any contract in his official capac- ity, or to take part in making any such sale, lease or contract, ■who voluntarily becomes interested individually in such sale, lease or contract, directly or indirectly, except in cases where such sale, lease or contract, or payment under the same, is subject to audit or approval by the commissioner of education, is guilty of a mis- demeanor. Derivation: Penal Code, § 473, as amended L. 1888, ch. 493: L. 1890, ch. 220. Smith V. City of Albany (1875), 61 N. Y. 444, aff'g 7 Lans. 14; People ex rel. Spaulding v. Supervisors (1901), 66 App. Div. 117, 72 N. Y. Supp. 782; Banigan v. Village of Nyack (1898), 25 App. Div. 150, 49 N. Y. Supp. lUU; see also Beebe v. Board etc., 19 N. Y. Supp. 630. § 1869. County clerks omitting to publish statements re- quired by law. A county clerk who wilfully omits to publish any statement required by law, within the time prescribed, is guilty of a mis- demeanor, punishable by a fine of one hundred dollars, or im- prisonment for six months, or both. Derivation: Penal Code, § 474. § 1870. Obstructing ofHcer in collecting revenue. A person who wilfully obstructs or hinders a public officer from collecting any revenue, taxes or other sum of money in which, or in any part of which the people of this state are directly or in- directly interested, and which such officer is by law empowered to collect, is guilty of a misdemeanor. Derivation: Penal Code, § 475. People ex rel. Spaulding v. Supervisors (1901), 66 App. Div. IIT- »S8, 72 N. Y. Supp. 782. 379 §§ 1871-1874] PUBLIC OFFICES, ETC. [Art. 170 § 1871. School district trustee not to draw draft on super- visor in certain cases. A school district trustee who issues an order or draws a draft ou a supervisor or collector for any money, unless there is at the time sufficient money in the hands of such supervisor or collector belonging to the district to meet such order or draft, is guilty of a misdemeanor. Derivation: Penal Code, § 485a, added L. 1893, cli. C92. § 1872. Fraudulently presenting bills or claims to public offi- cers for payment. A person who, knowingly, with intent to defraud, presents, for audit, or allowance, or for payment, to any officer or board of officers of the state, or of any county, town, city or village, authorized to audit, or allow, or to pay bills, claims or charges, any false or fraudulent claim, bill, account, writing or voucher, or any bill, account or demand, containing false or fraudulent charges, items or claims, is guilty of a felony. Derivation: Penal Code, § C72. O'Reilly v. People (1881), 86 N. Y. 154, 40 Am. Rep. 525, rev'g 1 Hun, 4C0, 3 Th. & C. 787; People v. Bragle (1882), 88 N. Y. 585, 63 How. Pr. 143; People v. King (1897), 12 N. Y. Cr. 240, 19 Misc. 98, 43 N. Y. Supp. 975; People v. Stock (1897), 21 Misc. 147, 47 N. Y. Supp. 94, 12 N. Y. Cr. 420; People v. Coon.bs (1899), 158 N. Y. 533, 14 N. Y. Cr. 17, aff'g 36 App. Div. 284, 55 N. Y. Supp. 276; People v. Klipfel (1899), 160 N. Y. 376, 14 N. Y. Cr. 169, aff'g 37 App. Div. 224, 55 N. Y. Supp. 789; People v. Miles (1908), 123 App. Div. 862, 108 N. Y. Supp. 510. § 1873. Taking property from officer's custody. A person who takes from the custody of an officer or other per- son, personal property, in charge of the latter, under any pro- cess of law, or who wilfully injures or destroys such property, is guilty of a misdemeanor. Derivation: Penal Code, § 83. Simpson v. St. John (1883), 93 N. Y. 363; People v. Booth (1907), 62 Misc. 340, 102 N. Y. Supp. 62, 20 Crim. Rep. 481. § 1874. Neglecting to make transcripts or making false cer- tificates. If a surrogate, county clerk, register, clerk of a court, or other 880 An. 170] PUBLIC OFFICES, ETC. [§§ 1875-1876 person, having the custody of the records or other papers in a public office, refuses, or unreasonably neglects or delays, to make a search, or to furnish a transcript or certificate as prescribed in section two hundred and fifty-five of the judiciary law, section one hundred and sixty-one of the county law, or section sixty-six of the public officers law, or makes a false certificate, he is guilty of a misdemeanor. Berivation: Code Civ. Froc, § 1952, in part. § 1875. Violation by sheriff of certain provisions relating to prisoners. A sheriff, or other officer, who wilfully violates any of the pro- visions of sections one hundred and ten and one hundred and eleven of the code of civil procedure; or sections three hundred and forty, three hundred and forty-one, three hundred and forty- two, three hundred and forty-three, three hundred and forty-four, three hundred and forty-five, and three hundred and forty-six of the prison law, forfeits to the person aggrieved, treble damages. He is also guilty of a misdemeanor, and shall be punished accord- ingly. A conviction also ojjcrates as a forfeiture of his office. Derivation: Code Civ. Proc, § 961, in part § 1876. Misdemeanor for judge, justice or magistrate to per- mit any but attorneys to practice in his court. A judge, justice or magistrate within the city of New York who knowingly permits to practice in his court, a person who has not been regularly admitted to practice in the courts of record of this state, is guilty of a misdemeanor, and shall be punished by imprisonment in the county jail, not exceeding one month, or by a fine of not less than one hundred dollars or more than two hundred and fifty dollars, or by both such fine and imprison- ment. But this section and section two hundred and seventy-one do not apply to a case where a person appears in a cause to which he is a partv derivation: Code Civ. Proc, § 126. Matter of Bolte, 97 App. Div. SSI, 672, 90 N. Y. Supp. 496, see aW §272. 381 §§ 1890-1891] PUBLIC SAFETY [A'-t. X72 ARTICLE 172. FTTBUC SAFETY. Sectioit 1890. Overloading passenger vessel. 1891. Unauthorized pressure of steam. 1802. Generation of unsafe amount of steam. 1893. Mismanagement of steam boilers. 1894. Explosives and combustibles. 1895. Endangering life by maliciously placing explosive neai building. 1806. Making and disposing of dangerous weapons. 1897. Carrying and use of dangerous weapons. 1808. Possession, presumptive evidence. 1809. Destruction of dangerous weapons. 1000. Negligently managing and refusing to extinguish fires. 1001. Obstructing attempts to extinguish fires. 1902. Unautliorized manufacture, sale or use of illuminating oils. 1003. Violating law to prevent conflagrations. 1904. Ice cutting and ice bridges. 1905. Fire-escapes in hotels. 1906. Discharging fire-arms. 1907. Driving vehicles and animals on sidewalks. 1908. Driving vehicles and teams on side-paths. 1909. Riding bicycle on sidewalk or foot-path. 1910. Endangering life by refusal to labor. 1011. Injury to life saving apparatus. 1012. Procuring liquor for persons to whom sale is forbidden by the liquor tax law. 1913. Employment by common carrier of person addicted to intoxi- cation. 1914. Sale of pistols, revolvers and other fire arms. § 1890. Overloading passenger vessel. A person navigating a vessel for gain, who wilfully or negli- gently receives so many passengers, or such a quantity of other lading, on board the vessel, that by means thereof it sinks or is overset or injured, and thereby the life of a human being is en- dangered, is guilty of a misdemeanor. Derivation: Penal Code, § 359. § 1891. Unauthorized pressure of steam. A person who applies, or causes to be applied, to a steam boiler a higher pressure of steam than is allowed by law, or by the 382 Art. 172] PUBLIC SAFETY [§§ 1892-1894 inspector, officer or person authorized to limit the pressure of steam to be applied to such boiler, is guilty of a misdemeanor. Derivation: Penal Code, § 360. § 1892. Generation of unsafe amount of steam. A captain or other person having charge of the machinery or boiler of a steamboat, used for the conveyance of passengers, in the waters of this state, who from ignorance or gross neglect, or for the purpose of increasing the speed of the boat, creates, or causes to be created, an undue and unsafe pressure of steam, is guilty of a misdemeanor. Derivation: Penal Code, § 361. People T. Jenkins, 1 Hill, 467. § 1893. Mismanagement of steam boilers. An engineer or other person having charge of a steam boiler, steam engine, or other apparatus for generating or employing steam, employed in a railway, manufactory, or other mechanical works, who, wilfully or from ignorance or gross neglect, creates or allows to be created such an undue quantity of steam as to burst the boiler, engine or apparatus, or cause any other accident whereby human life is endangered, is guilty of a misdemeanor. Derivation: Penal Code, § 362. § 1894. Explosives and combustibles. A person who makes or keeps gunpowder, nitro-glycerine, or any other explosive or combiistiblb material, within a city or vil- lage, or carries such materials through the streets thereof, in a quantity or manner prohibited by law or by ordinance of the city or village, is guilty of a misdemeanor. A person who manufactures gunpowder, dynamite, nitro-glyc- erire, liquid or compressed air or gases, except acetylene gas and other gases used for illuminating purposes, naphtha, gasoline, ben- zine or any explosive articles or compounds, or manufactures am- munition, fireworks or other articles of which such substances are component parts in a cellar, room, or apartment of a tenement or dwelling-house or any building occupied in whole or in part by pe/sons or families for living purposes, is guilty of a misdemeanor. And a person who, by the careless, negligent, or unauthorized Use or management of gunpowder or other explosive substances, in- 383 25 § 1895] PUBLIC SAFETY [Art. 172 jnres or occasions the injury of the person or property of another, is punishable by imprisonment for not more than two years. Any person or persons who shall knowingly present, attempt to present, or cause to be presented or offered for shipment to any railroad, steamboat, steamship, express or other company engaged as common carrier of passengers or freight, dynamite, nitro- glycerine, powder or other explosives dangerous to life or limb, without revealing the true nature of said explosives or substance so offered or attempted to be offered to the company or carrier to which it shall be presented, shall be guilty of a felony, and upon conviction, shall be fined in any sum not exceeding one thousand dollars and not less than three hundred dollars, or im- prisonment in a state prison for not less than one nor more than five years, or be subject to both such fine and imprisonment. Nothing in this section contained shall be construed to prohibit or forbid the manufacture and sale of soda-water, seltzer-water, ginger ale, carbonic or mineral water, or the charging with liquid carbonic acid gas of such waters or ordinary waters, or of beer, wines, ales or other malt and vinous beverages in such cellar, room or apartment of a tenement or dwelling-house, or any building occupied in whole or in part by persons or families for living purposes. Derivation: Penal Code, § 389, as amended L. 1887, eh. 689; L. 1909, eh. 494; L. 1902, ch. 486. Heeg V. Licht (1880), 80 N. Y. 579, 36 Am. fiep. 6S4, 8 Abb. N. C. 355, rev'g 16 Hun, 257; Van Orden v. Robinaon (1887), 45 Hun, 570; People V. Liehtman (1902), 173 N. Y. 63, rev'g 65 App. Div. 76, 72 N. Y. Supp. 611; People v. Murray (1902), 76 App. Div. 118, 121, 78 N. Y. Supp. 721; see also Bradley v. People, 56 Barb. 72; Rhodes v. Dunbar, 57 Pa. St. 274. § 1895. Endangering life by maliciously placing explosive near building. A person, who places in, upon, under, against, or near to any building, car, vessel or structure, gunpowder or any other expio sive substance, with intent to destroy, throw down, or injure the whole or any part thereof, under such circumstances, that, if tht> intent were accomplished, human life or safety would be en- dangered thereby, although no damage is done, is g'^ilty of & felony and upon conviction shall be punished by imprisonment in a etate prison tor not more than twenty-five years. (Amended by L. 1914, ch. 362, in effect Sept. 1, 1914.) Derivntiont f enal Code, 5 4Q5. 381 Art. 172] PUBLIC SAFETY [§§ 1896-1897 § 1896. Making and disposing of dangerous weapons. A person who manufactures, or causes to be manufactured or sells or keeps for sale, or offers, or gives, or disposes of any' in- strument or weapon of the kind usually known as a blackjack, slungshot, billy, sandclub, sandbag, bludgeon, or metal knuckles' to any person ; or a person who olf ers, sells, loans, leases, or gives any gun, revolver, pistol or other fire-arm or any air-gun, spring- gun or other instrument or weapon in which the propelling force is a spring or air or any instrument or weapon commonly °known as a toy pistol or in or upon which any loaded or blank cartridges are used,^ or may be used, or any loaded or blank eartridges^or ammunition^ therefor, to any person under the age of sixteen years, is guilty of a misdemeanor. (Amended by L. 1911, ch. 195, in effect Sept. 1, 1911.) Derivation: Penal Code, § 409, as amended L. 1884, ch. 46; L 1889 ch. 140; L. 1889, ch. 603; L. 1900, ch. 222; L. 1905, ch. 92. § 1897. Carrying and use of dangerous weapons. 1. A person who attempts to use against another, or who carries, or possesses any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sand club, sandbag, metal knuckles, bludgeon, or who, with intent to use the same unlawfully against another, carries or possesses a dagger, dirk, dangerous knife, razor, stiletto, or any other dangerous or deai^ly instrument, or weapon, is guilty of a misdemeanor, and if he has been previously convicted of any crime he is guilty of a felony. 2. A person who carries or possesses a bomb or bombshell, or who, with intent to use the same unlawfully against the person or property of another, carries or possesses any explosive substance, is guilty of a felony. 3. Any person under the age of sixteen years, who shall have, carry, or have in his possession, any of the articles named or de- scribed in the last section, which is forbidden therein to offer, sell, loan, lease or give to him, shall be guilty of juvenile delinquency. 4. Any person over the age of sixteen years, who shall have in his possession in any city, village or town of this state, any pistol, revolver or other firearm of a size which may be concealed upon the person, without a written license therefor, issued to him as hsrein- after prescribed, shall be guilty of a misdemeanor, and if he has been previously convicted of any crime he shall be guilty of a felony. 5. Any person over the age of sixteen years, who shall have or 385 § 1897] PUBLIC HEALTH [Art. 172 carry concealed upon Lis person in any city, village or town of this state, any pistol, revolver, or other firearm without a written license therefor, issued as hereinafter prescribed and licensing such pos- session and concealment, shall be guilty of a misdemeanor, and if he has been previously convicted of any crime he shall bs guilty of a felony. 6. Any person not a citizen of the United States, unless author- ized by license issued as hereinafter prescribed, who shall have or carry firearms, or any dangarous or deadly weapon in any place, at any time, shall bs guilty of a misdemeanor, and if he had been previously convicted of any crime he shall be guilty of a felony. 7. It shall be the duty of the police commissioner in the city of "New York and of any magistrate elsewhere in this state to whom an application therslor is made by a commissioner of correction of the city or by any warden, stiperintendent or head keeper of any state prison, penitentiary, workhouse, county jail or other institu- tion for the detention of persons convicted of or accused of crime, or oiTenses, or held as v/itnesses in criminal casqs, to issue to each of such persons as may bs designated in such applications and who is in the regular employ in such institutions of the state, or of any county, city, town or village therein, a license authorizing such person to have and carry concealed a pistol or revolver while such person remains in the said employ. 8. It shall be the duty of the police commissioner in the city of itfew York and elsewhere of a judge or justice of a court of record in this state, upon application therefor, by any householder, mer- chant, storekeeper or messenger of any banking institution or express company in the state, and provided such police commis- sioner, judge or justice is satisfied of the good moral character of the applicant, and provided that no other good cause exists for the denial of such application, to issue to such applicant a license to have and possess a pistol or revolver, and authorizing him (a) if a householder, to have such weapon in his dwelling, and (b) if a merchant, or storekeeper, to have such weapon in his place of business, and (c) if a messenger of a banking institution, or ex- press company, to have and carry such weapon concealed while in the employ of such institution or express company. 9. In addition, it shall be lawful for the police commissioner in the city of 'Hew York or elsewhere in this state, for a judge or justice of a court of record, upon proof before hiin of the person applying therefor is of good moral character, and that proper cause exists for the issuance thereof, to issue tp such person a license to have and carry concealed a pistol or revolver without regard to employment or place of possessing such weapon, provided, how- ever, that no such license shall be issued to any alien, or to any 385a Art. 172] PUBLIC SAFETY [§ 1897-a person not a citizen of and usually a resident in the state of New York, except by the police commissionar in the city of New York and elsewhere by a judge or justice of a court of record in this state, who shall state in such license the particular reason for the issuance thereof, and the names of the persons certifying to the good moral character of the applicant. 10. Any license issued in pursuance of the provisions of this section may be limited as to the date of expiration thereof and may be vacated and canceled at any time by the police commissioner or elsewhere than in the city of New York, by any judge or justice of a court of record. 11. The conviction of a licensee of a felony in any part of the state shall operate as a revocation of the license. Any license issued in pursuance of this section and not otherwise limited as to place or time of possession of such weapon, shall be elTective throughout the state of New York, notwithstanding the provisions of any local law or ordinance. 12. All licenses issued pursuant to the provisions of this section fihall be in such form that there shall be attached to the body of such license a coupon which shall be removed and retained by any person who sells or otherwise provides the licensee with any weapon contemplated in such license. Any dealer or other person who sells, gives, or otherwise provides a person with any pistol, revolver or other firearm except upon the presentation, removal and retention of such coupon, shall be guilty of a misdemeanor. 13. This section shall not apply to the regular and ordinary transportation of firearms as merchandise, nor to sheriffs, police- men, or to other duly appointed peace officers, nor to duly author- ized military or civil organizations when parading, nor to the members thereof when going to and from the place of meeting of their respective organizations. (Amended by L. 1911, ch. 195; L. 1913, ch. 608; L. 1915, ch. 390; L. 1917, ch. 580; L. 1919, ch. 413; L. 1921, ch. 297, in eSezt Anril 21, 1921.) Dsrvation: Penal Code, § 410, as amended L. 1884, ch. 46; L. 1889, ch. 140; Ji. 10C5, ch. 92; L. 19C8, ch. 93. Taranto v. North German Lloyd Steamship Co. (1908), 128 App. Div. 75; People V. C^rvelto (19C8), 123 Ar-p. E;v. 822, 1C8 IST. Y. Su:;p. 1£6; People v. Demorio (1908), 123 App. Div. 665, 108 N. Y. Supp. 24. § 1897-a. Possession, selling, carrying and use of firearm silencers. A person who has in his possession, sells or keeps for sale, or offers, or gives or disposes of, azij instrument, attachment, weapon or apnliance for causing the firing of any gun, revolver, pistol, or other firearms to be silent or intendsd to lessen or muffle the noise of the firing of any gun, revolver, pistol, or other firearms shall be guilty of a felony, punishable by imprisonment for not more than five years. 385b §§ 1898-1899] PUBLIC SAFETY [Art. 172 This section shall not apply to the regular and ordinary transporta- tion by common carriers of any instrument, attachment, weapon or appliance for causing the firing of any gun, revolver, pistol or other firearms to be silent or intended to lessen or muffle the noise of the firing of any gun, revolver, pistol or other firearms, as merchandise, nor to sheriffs, policemen, or to other duly appointed peace officers, nor to duly authorized military or civil organizations, nor when parading, nor to the members thereof when going to and from the place of meet- ing of their respective organizations, nor to duly authorized military or civil organizations in practice. (Added by L. 1916, eh. 137; amended by L. 1917, ch. 287, in effect April 30, 1917.) § 1898. Possession, presumptive evidence. The possession, by any person other than a public officer, of any of the weapons specified in section eighteen hundred and ninety-seven of this chapter, concealed or furtively carried on the person, or of the possession of any instrument specified in the last preceding section except as permitted therein, is presumptive evidence of carrying, or concealing, or possessing, with intent to use the same in violation of this article. (Amended by L. 1916, ch. 137 ; L. 1917, eh. 287, in effect April 30, 1917.) Derivation: Penal Code, § 411. People V. Cannon (1893), 139 N. Y. 32, aff'g 63 Hun, 306, 18 N. Y. Supp. 25; People v. Adams (1903), 176 N. Y. 361, aff'g 85 App. Div. 390, 83 N. Y. Supp, 481; People v. Carvelto (1908), 123 App. Div. 822, 108 N. Y. Supp. 126; Taranto v. North German Lloyd Steamship Co. (1908), 128 App. Div. 75 ; see also People v. Izzo, 14 N. Y. Supp. 907. § 1899. Destruction of dangerous weapons. The unlawful carrying of a pistol, revolver, or other firearm, or of an instrument or weapon of the kind usually known as blackjack, bludgeon, slungshot, billy, sandclub, sandbag, metal knuckles, or of a dagger, dirk, dangerous knife, or any other dangerous or deadly weapon, by any person save a peace officer, is a nuisance and such weapons are hereby declared to be nuisances, and when any one or more of the above described instruments or weapons shall be taken from the possession of any person the same shall be surrendered to the sheriff of the county wherein the same shall be taken, except that, in cities of the first class the same shall be surrendered to the head of the police force or department of said city. The officer to whom the same may be so surrendered shall, except upon certificate of a Judge of a court of record, or of the district attorney, that the non-destruction thereof is necessary or proper in the ends of justice, proceed at such time or times as he deems proper, and at least once in each year, to destroy or cause to be destroyed any and all such weapons or instruments, in such manner and to such extent that the same shall be and become wholly and entirely ineffective and useless 386 Art. 172] PUBLIC SAFETY [§§ 1900-1902 for the purpose for which destined and harmless -to human life ot limb. (Am'd by L. 1911, ch. 195, in effect Sept. 1, 1911.) Derivationt Penal Code, § 411a, added L. 1907, eh. 682. § 1900. Negligently managing and refusing to extinguish fires. A person who: 1. Wilfully or negligently sets fire to, or assists another to set fire to any waste or forest lands belonging to the state or to an- other person whereby such forests are injured or endangered ; or, 2. Negligently sets fire to his own woods, by means whereof the property of another is endangered ; or, 3. Negligently suffers any fire upon his own land to extend be- yond the limits thereof; or, 4. Having been lawfully ordered to repair to a place of a fire in the woods, and to assist in extinguishing it, omits without law- ful excuse to comply with the order, Is guilty of a misdemeanor. Derivation: Penal Code, § 413, as amended L. 1892, cli. G92. § 1901. Obstructing attempts to extinguish fires. A person who at any burning of a building is guilty of any dis- obedience to lawful orders of a public officer or fireman, or of any resistance to, or interference with, the lawful efforts of a fireman or company of firemen, to extinguish the same, or of any disorderly conduct likely to prevent the same from being ex- tinguished, or who forbids, prevents or dissuades others from as- sisting to extinguish the same, is guilty of a misdemeanor. Derivation: Penal Code, § 414, as amended L. 1892, cli. G92. § 1902. Unauthorized manufacture, sale or use of illuminat- ing oils. A person who violates any provision of the general business law, relating to the standard, manufacture, sale, use or storaire of any oil or burning fluid, wholly or partly composed of naphtha, coal oil, petroleum or products manufactured therefrom, or of other substance or materials which will flash at a temperature below one hundred degrees Fahrenheit, or relating to the burn- ing or carriage of any such oil or fluid which will ignite at a 387 §§ 1903-1904] PUBLIC SAFETY [ART. 172 temperature below three hundred degrees Fahrenheit, is guilty of a misdemeanor. DerlTBtion: Penal Code, § 427, as added L. 1896, ch. 551. § 1903. Violating law to prevent conflagrations. A person who violates any of the provisions of section three hun- dred and six of the general business law is guilty of a misdemeauor. Derivation: Penal Code, § 42S, added L. 1896, cli. 551. § 1904. Ice cutting and ice bridges. A person or corporation cutting ice in or upon any waters within the boundaries of this state for the purpose of removing the ice for sale or use, must surround the cuttings and openings made with fences or guards of boards or other material sufficient to form an obstruction to the free passage of persons through such fences or guards into the place where such ice is being cut. Such fences or guards must be erected at or before the time of com- mencing the cuttings or openings, and must be maintained until ice has again formed therein to the thickness of at least three inches, or until the ice about such openings has melted or broken up. Whoever omits to comply with this section is guilty of a misdemeanor. A person who cuts, loosens or detaches from any bay, estuary, inlet, or main, or island shore of the Saint Lawrence river, within the jurisdiction of this state, any field of ice, or large body of ice, which, when so loosened or detached forms or is likely to form a bridge or passage way between an island of the river and the main shore, or between any islands of such river, is guilty of a misdemeanor. The sheriii of the county of Saint Lawrence may appoint one or more deputies to patrol the Saint Lawrence river within the county at such times as shall seem to him proper, and to arrest any persons found engaged in a violation of this sec- tion ; the fees and expenses of such deputies for such services shall be a county charge against said county, and shall be audited and paid in the same manner as other county charges. Derivation: Penal Code, § 429, as amended L. 1804, en. 753; L. 1900, oh. 584; L. 1905, ch. 328. Sickles V. N. Jersey Ice Co. (1897), 153 N. Y. S3, rov'g 80 Hun, 213. 30 N. Y. Supp. 10. 388 Art 172] PUBLIC SAPETY [§§; 1905-1906 § 1905. Fire-escapes in hotels. A person who : 1. Being the owner, lessee, proprietor or manager of a hotel, fails to comply with the law relative to providing or keeping ap- pliances to be used as fire-escapes; or, 2. Being the chief engineer or officer performing the duties of such in any city or village neglects to make or cause to be made the inspection required by law to be made touching fire-escapes in hotels. Is guilty of a misdemeanor. Derivation: Penal Code, § 447b, added L. 1896, cli. 551. § 1908. Discharging fire-arms. A person who, otherwise than in self defense, or in the dis- charge of official duty: 1. Wilfully discharges any species of fire-arms, air-gun or other weapon, or throws any other deadly missile in a public place or in any place where there is any person to be endangered thereby, although no injury to any person ensues ; or, 2. Intentionally, without malice, points or aims any fire arm at or toward any other person; or, 3. Discharges, without injury to any other person, fire-arms, while intentionally without malice, aimed at or toward any per- son; or, 4. Maims or injures any other person by the discharge of any fire-arm pointed or aimed intentionally, but without malice, at any such person. Is guilty of a misdemeanor. A person who leaves the state, with intent to elude any pro- vision of this section, or to commit any act without the state, which is prohibited by this section, or who, beirg a resident of this state, does any act without the state, which would be pmiish- able by the provisions of this section, if committed within the state, is guilty of the same offense and subject to the same pun- ishment, as if the act had been committed within this state. No person shall be excused from giving evidence upon an in- vestigation or prosecution for any of the offenses specified in this section, upon the ground that the evidence might tend to 380 §.§ 1907-1909] PUBLIC SAFETY [Art. 178 convict him of a crime. But such evidence shall not be received against him upon any criminal proceeding. DeriTation: First par., Penal Code, § 468, as amended L. 1803, ch. 692; second par.. Penal Code, § 461; third par.. Penal Code, § 469. § 1907. Driving vehicles and animals on sidewalks. A person who wilfully and without authority or necessity drives any team, vehicle, cattle, sheep, horse, swine or other animal along or upon a sidewalk is punishable by a fine of fifty dollars, or im- prisonment in the county jail not exceeding thirty days, or both. Derivation: Penal Code, § G52, in part, as amended L. 1897, ch. 267. For remainder of section, see § I90S, post. Moore v. Gadsden (1883), 93 N. Y. 13; Fisher v. Village of Cambridge (1892), 133 N. Y. 527; Fuller v. Bedding (1896), 16 Misc. 634, 39 N. Y. Supp. 109; Lechner v. Village of Newark (1896), 19 Misc. 452, 44 N. Y. Supp. 556; People v. Meyer (1899), 26 Misc. 117, 56 N. Y. Supp. 1097, 14 N. Y. Cr. 57. § 1908. Driving vehicles and teams on side-paths. A person who wilfully and without authority or necessity drives any team or vehicle, except a bicycle, upon a side-path, or wheel- way, constructed by or exclusively for the use of bicyclists, and not constructed in a street of a city, is punishable by a fine of not more than fifty dollars, or imprisonment not exceeding thirty days, or both. Derivation: Penal Code, § 652, in part, aa amended L. 1807, ch. 287. For remainder of section, see § 1907, ante. See Cases under Section 1907. § 1909. Riding bicycle on sidewalk or toot-path. A person who wilfully and without authority rides a bicycle upon a sidewalk or foot-path constructed, maintained, or allowed to remain for the exclusive use of pedestrians, in any street where a side-path for bicycles is maintained outside of an incorporated city or village, is guilty of a misdemeanor, punishable by a fine of not more than twenty-five dollars, or by imprisonment for not more than twenty days, or both. Derivation: Penal Code, § 652a, added L. 1001, ch. 580. People y. Schermerhorn (1908), 59 Misc. 140, 112 N. Y. Supp. 222. 390 Art. 172] PUBLIC SAFETY [§§ 1910-1913 § 1910. Endangering life by refusal to labor. A person, who wilfully and maliciously, either alone or in combination with others, breaks a contract of service or hiring, knowing, or having reasonable cause to believe, that the probable consequence of his so doing will be to endanger human life, or to cause grievous bodily injury, or to expose valuable property to destruction or serious injury, is guilty of a misdemeanor. DeriTation: Penal Code, § 673. Adams v. People (1848), 1 N. Y. 173; People v. Marine Court (1875), 6 Hun, 214; Western, etc. Coal Co. v. Kilderliouse (1882), 87 N. Y. 435; People V. Lyon (1885), 99 N. Y. 219; 3 N. Y. Cr. 101, rev'g 33 Hun. 023; People V. Marra (1886), 4 N. Y. Cr. 304; People v. Bliven (1889), 112 N. Y. 79; People v. Martin (1902), 38 Misc. 67, 74, 76 N. Y. Supp. 953; see also People v. Lane, 1 Edm. Sel. Cas. 116; Langdon v. New York, etc. R. Co., 9 N. Y. Supp. 245; Murphy v. English, 64 How. Pr. 362; People v. Wilson, 3 Park, 190; Com. v. White, 123 Mass. 430, 25 Am. Kep. 116; Wisconsin v. Pelican Ins. Co., 127 U. S. 265. § 1911. Injury to life-saving apparatus. Any person molesting, damaging, destroying, stealing, or in any way wrongfully withholding or interfering with the life- buoys, life-ladders, rubber or cork life-preservers, boats, or other life saving apparatus, or of the flags, pennants, signs, badges of office, buttons or medals of any humane or life saving association of the state of New York, shall be guilty of a misdemeanor. Derivation: Penal Code, § 674g, added L. 1899, ch. 327. § 1912. Procuring liquor for persons to whom sale is forbid- den by the liquor tax law. The purchase or procurement of liquor for any person to whom it is forbidden to sell liquor under section twenty-nine of the liquor tax law, is a misdemeanor, punishable upon conviction, by a fine of not less than ten dollars or by imprisonment not exceed- ing six months, or by both such fine and imprisonment. Derivation: Liquor Tax Law (L. 1896, ch. 112), § 40, in part, as amended L. 1897, ch. 312, § 28. § 1913. Employment by common carrier of person addicted to intoxication. Any person or officer of an association or corporation engaged in the business of conveying passengers or property for hire, who sn § 19141 PUBLIC SAFBTYl fArt. irS employ in the conduct of focb business, as an engineer, fire* man, couductor, switcJi-teuder, train dispatcher, telegrapher, com- mander, pilot, mate, fireman or in other like capacity, so that by his neglect of duty the safety and security of life, person or property so conveyed might be imperiled, any person who habitu- ally indulges in the intemperate use of liquors, after notice that such pei-son has been intoxicated, while in the active service of such person, association or corporation, shall be guilty of a mis- demeanor. Derivation: Liquor Tax Law (L. 1896, ch. 112), § 41. § 1914. Sale of pistols, revolvers and other firearms. Ifo pistol, revolver or other firearms of a size which may be coneea.ed upon the person, shall be sold, or given away, or other- wise disposed of, except to a person expressly authorized imder the provisions of section eighteen hundred and ninety-seven of the penal law to possess and have such firearm. Any person selling or disposing' of such firearm in violation of this provision of this section shall be guilty of a misdemeanor. Every person selling a pistol, revolver or other firearm of a size which may be coneealerl upon the person, whether such seller is a retail dealer, pawnbroker, or otherwise, shall keep a register in which shall be entered at the time of sale, the date of sale, name, age, occupation and residence of every purchaser of such a pistol, revolver or other firearm, together with the calibre, make, model, manufacturer's number or other mark of identification on such pistol, revolver or other firearm. Such person shall also, before delivering the same to the purchaser, require such purchaser to produce a license for possessing or carrying the same, as required by law, and shall also enter in such register the date of such per- mit, the number thereon, if any, and the name of the magistrate or other officer by whom the same was issued. Every person who shall fail to keep a register and to enter therein the facts re- quired by this section, or who shall fail to exact the production of a permit to possess or carry such pistol, revolver or other firearm, if such permit is required by law, shall be guilty of a misde- meanor. Such register shall be open at all reasonable hours for the inspection of any peace officer. Every person becoming the lawful possessor of such a pistol, revolver or other firearm, who shall sell, give or transfer the same to another person v/ithout first notifying the police authorities, shall be guilty of a misde- meanor. This section shall not apply to wholesale dealers. (Add-d bv L. 1911, ch. 195, and amended by L. 1913, ch. 608, in effect Sept. 1, 1913.) 392 Art. 174] PUNISHMENT j:§ 1930 ARTICIiE 174. FUNISHMENX. Sectioh 1930. What persons are punishable criminally. 1931. Puiiishmenta, how determined. 1932. Punishment of corporation convicted of felony. 1933. Punishment of acts committed out of the state. 1934. Punishment of accessory to felony. 1035. Punishment of felonies when not fixed by statute. 1936. Punishment of accessory to misdemeanor. 193/. Punishment of misdemeanors when not fixed by statute. 1938. Punialiment when difi"erent penalties are provided by different provisions of law. 1939. Mitigation of punishment in certain cases. 1940. Punishment for felony when pe'pon convioted has been pre- viously convicted of a misdemeanor. [Repealed by L 1930 ch. 571.] 1941. Puni'^hment for second offense of felonv. 1943. Pnnis>'mpn+ foi- fourtii onnvictinn of felony. 1943. [Renumbered by L. 1909, ch. 534.] § 1930. What persons are punishable criminally. The following persons are liable to punishment within the state: 1. A pei"son who commits within the state any crime, in whole or in part ; 2. A person who commits without the state any offense wbieh, if committed within the state, would be larceny under the laws of the state, and is afterwards found, with any of the property stolen or feloniously appropriated within this state; 3. A person who, being without the state, causes, procures, aids, or abets another to commit a crime within the state ; 4. A person who, being out of this state, abducts or kidnaps by force or fraud, any pei-son contrary to the laws of the place where such act is committed, and brings, sends or conveys such person within the limits of this state, and is afterwards found therein ; 5. A person who, being out of the state and v/ith intent to cause within it a result contrary to the laws of this state doe.s an act which in its natural and usual course results in an act or effect contrary to its laws. Derivation: Penal Code, § 16. As to liability of mental defectives, see Mental Deficiency Law (L. 1919, ch. 633). 393 §§ 1931-1934J PUNISHMENT fArt. 174 § 1931. Punishment, how determined. Whenever in this chapter the punishment for a crime is left undetermined between certain limits, the punishment to be in- flicted in a particular case must be determined by the court au- thorized to pass sentence, within such limits as may be prescribed by this chapter. Derivation: Penal Code, § 13, in part, as amended L. 1892, cb. 218. For remainder of section, see § 1932, post. People V. Bauer (1885), 3 N. Y. Cr. 433, 37 Hun, 407; People ex rel. Zeese v. Hasten (1894), 79 Hun, 580, 29 N. Y. Supp. 891. § 1932. Punishment of corporation convicted of felony. In all cases where a corporation is convicted of an offense for the commission of which ; natural .person would be punishable with imprisonment, as for a felony, such corporation is punish- able by a fine of not more than five thousand dollars. Derivation: Penal Code, § 13, in part, as amended L. 1892, ch. 218. For remainder of section, see § 1931, ante. See cases under sec. 1831. § 1933. Punishment of acts committed out of the state. A person who commits an act without this state which affects persons or property within this state, or the public health, morals, oi decency of this state, and which, if committed within this state, would be a crime, is punishable as if the act were committed within this state. Derivation: Penal Code, § 676. People V. Lyon (1885), 99 N. Y. 219, rev'g. 33 Hun, 623; People v. Martin (1902), 38 Misc. 67, rev'd 77 App. Div. 396, which was affirmed in 175 N. Y. 315, 76 N. Y. Supp. 953. § 1934. Punishment of accessory to felony. An accessory to a felony may be indicted, tried, and convicted, either in the ojimty where he became an accessory, or in the county where the principal felony was committed, and whether the prin- cipal felon has or has not been previously convicted, or is or is not amenable to justice, and although the principal has been pardoned or otherwise discharged after conviction. Except in a case where a different punishment is specially pre- scribed by law, a person convicted as an accessory to a felony is 394 Art. 1741 PUNISHMENT [§§ 1935-193T punishable by imprisonment for not more than five years, or by a fine of not more than five hundred dollars, or by both. DeriTatlont Penal Code, §§ 32, S3. Starin v. People (1871), 45 N. Y. 333; Jones v. People (1880), 20 Hun, 645; People v. Eyland (1884), 97 N. Y. 126; People v. Basford (1885), 3 N. Y. Cr. 219; People v. Booth (1907), 52 Misc. 340, 102 N. Y. Supp. 62; Bee also People v. Gray, 25 Wend, 4G4. § 1935. Punishment of felonies when not fixed by statute. A person convicted of a crime declared to be a felony, for which no other punishment is specially prescribed by this chap- ter, or by any other statutory provision in force at the time of the conviction and sentence, is punishable by imprisonment for not more than seven years, or by a fine of not more than one thousand dollars, or by both. DeriTation: Penal Code, S 14. People V. Meakim (1892), 133 N. Y. 214, 8 N. Y. Or. 308, 404, 416, aff'g 61 Hun, 327, 15 N. Y. Supp. 917. § 1936. Punishment of accessory to misdemeanor. When an act or omission is declared by statute to be a misde- meanor, and no punishment for aiding or abetting in the doing thereof is expressly prescribed, every person who aids, or abets another in such act or omission is also guilty of a misdemeanor. Derivation: Penal Code, § 682. People V. Clark (1891), 8 N. Y. Cr. 179-198, 14 N. Y. Supp. 642. § 1937. Punishment of misdemeanors when not fixed by statute. A person convicted of a crime declared to be a misdemeanor, for which no other punishment is specially prescribed by this chapter, or by any other statutory provision in force at the time of the conviction and sentence, is punishable by imprisoniucut in a penitentiary, or county jail, for not more than one year, or by a fine of not more than five hundred dollars, or by both- Derivation: Penal Code, § 15. People V. McTameney (1883), 30 Hun, 505, 13 Abb. N. C. 66, 1 N. Y. Cr. 437, 66 How. Pr. 75; People ex rel. Van Houton v. Sadler (1884), 97 N. Y. 146, a N. Y. Cr. 474; People ex rel. Devoe v. Kelly (1884), 97 N. Y. 212, 395 §§ 1938-1939] PUmSlIMEFT FAit 174 2 N. Y. Cr. 437; People ex rel. Stokes v. Riaely (1885), 38 Hun, 280, 4 N. y. Cr. 109; People v. Parr (1886), 4 N. Y. Cr. 545; People v. Palmer (1887), 43 Hun, 397, 5 N. Y. Cr. 107; People v. Carter (1888), 48 Hun, 165; Loos V. Wilkinson (1889), 51 Hun, 74, 5 N. Y. Supp. 410; People v. Meakim (1892); 133 N. Y. 214, 8 N. Y. Cr. 413, aff'g 61 Hun, 327, 15 N. Y. Supp. 917, 8 N. Y. Cr. 308; People v. Christy (1892), 65 Hun, 349, 20 N. Y. Supp. 278, 8 N. Y. Cr. 482; People v. Madill (1895), 11 N. Y. Cr. 136, 91 Hun, 152, 36 N. Y. Supp. 1130; Matter of Vanderhoff (1896), 15 Misc. 434, 30 N. Y. Supp. 833; People v. Knatt (1898), 156 N. Y. 305, rev'g 19 App. Div. C28, 46 N. Y. Supp. 1098; People ex rel. Frank v. Keeper (1002), 38 Misc. 238, 77 N. Y. Supp. 145; People v. Olcese (1903), 41 Misc. 102, 83 N. Y. Supp. 973; People ex rel. Lodes v. Dept. of Health (1907), 117 App. Div. 858, 103 N. Y. Supp. 275; People v. Scliermerliorn (1908), 59 Mise. 148, 112 N. Y. Supp. 222; see also Burns v. Norton, 35 N. Y. St. 418, 15 N. Y. Supp. 75; Matter of Hallenbcck, 65 How. 501, 1 N. Y. Cr. 437. § 1938. Punishment when different penalties are provided by different provisions of law. An act or omission which is made criminal and punishable in different ways, by different provisions of law, may be punished under any one of those provisions, but not under more than one; and a conviction or acquittal imder one bars a prosecution for the same act or omission under any other provision. DerlTation: Penal Code, § 677. Polinaky v. People (1877), 11 Hun, 390, aff'd 73 N. Y. 65; People ex rel. McDonald v. Keeler (1885), 99 N. Y. 475, rev'g 32 Hun, 563; People v. Krank (1888), 110 N. Y. 488, rev'g 40 Hun, 632; People v. Christy (1892), 65 Hun, 352, 20 N. Y. Supp. 278, 8 N. Y. Cr. 483; see also Blatchley v. Moser, 15 Wend. 215; People v. Church, 1 How. Pr. (N. S.) 366, citing 1 Bish. Crim. Law (7th Ed.) 778; City of Brooklyn v. Toynbee, 31 Barb, 282; Mayor v Hyatt, 3 E. D. Smith, 156; Rogers v. Jones, 1 Wend, 261; People v. Stevens, 15 Wend. 341; Mayor v. Allaire, 14 Ala. 404; Huff smith v. People, 8 Colo. 175, 54 Am. Rep. 550; McRea v. Mayor, 59 Ga. 168, 27 Am. Rep. 390; Robbing v. People, 95 111. 178; Wragg v Penn. Township, 94 III. 23; Waldo V. Wallace, 12 Ind. 584; Shafer v. Mumma, 17 Md. 331; State v. Lee, 29 Minn. 445; Brownsville v. Cook, 4 Neb. 105; State v. Sly, 4 Oreg. 278, 279; State v. Bergman, 6 Oreg. 343; State v. Williams, 11 S. C. 292; State V. Hamilton, 3 Tex. App. 643; McLaughlin v. Stevens, 2 Cranch, C. C. 149; Howe v. Plainfield, 8 Vroom, 150; Greenwood v. State, 6 Baxt. 567, 32 Am. Rep. 539; Huglies v. People, 7 Crim. L. Mag. 280, 285, note; Com. v. Trichey, 13 Allen, 559; Com. v. McConnell, U Gray, 204; Reg. v. Gilmore, 15 Cox Cr. Cas. 85, 36 Eng. Rep. 500. § 1939. Mitigation of punishment in certain cases. Where it appears, at the time of passing sentence on a person convicted that he has already paid a fine or suffered an imprisoa- 3i)G Art. 174] PUNISHMENT [§§ 1940-1941 ment for the act of which he stands convicted, tinder an order adjudging it a contempt, the court, passing sentence, may mitigate the punishment to be imposed, in its discretion. Derivation: Penal Code, § 6SI. § 1940. Punishment for felony when person convicted has been previously convicted of a misdemeanor. (Eepealed by L. 1920, cb. 571, in effect Sept. 1, 1920.) Derivation: Penal Code, § 689. § 1941. Punishment for second offense of felony. A person, who, efter having bean convicted within this state, of a felony, or an attempt to commit a felony, or, under the laws of any other state, government, or country, of a crime which, if com- mitted within this state^ would be a felony, commits any crime, within this state, is punishable upon conviction of such second offense as follows: If the subsequent crime is such that, upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life, then such person must be sentenced to im- prisonment for a term not less than the longest term, nor more than twice the longest, term, prescribed upon a first conviction. (Amended by L. 1920, ch. 571, in effect Sept. 1, 1920.) Derivation: Penal Code, § 688. People V. Gibson (1875), 5 Hun, 542; People v. Raymond (1884), 33 Hun, 123, 96 N. Y. 38; People v. Cook (1887), 45 Hun, 37; People v. Price (1888), 6 N. Y. Cr. 141, 2 N. Y. Supp. 414; People v. Price (1889), 53 Hun, 185, 6 N. Y. Supp. 333, 119 N. Y. 650; People v. Bosworth (1892), 64 Hun, 73, 19 N. Y. Supp. 114, 45 N. Y. St. 512; People v. Sickles (1898), 156 N. Y. 541, 13 N. Y. Cr. 277, aff'g 26 App. Div. 470, 50 N.Y. Supp. 377; Peo- ple ex rcl. V. Cramer (1898), 23 M:sc. 13, 40 N. Y. Cuon. 1037, 30 App. Div. C24, 53 N. Y. Supp. 1111; Peop'e v. Reilly (lOOC), 43 App. Div. 318, 63 N. Y. Supp. 18, 14 N. Y. Cr. 458, aff'g 164 N. Y. 600; People v. Johnston (1906) , 113 App. Div. 813, 99 N. Y. Supp. 561, 30 Crim. Rep. 141, see also People V. Caesar, 1 Park. 648, Parker, J.; People v. Stanley, 47 Cal. 113, 17 Am. Rep. 401; Kelly v. People, 115 HI. 583, 56 Am. Rep. 184; Chetworth v. Com. (Ky.), 13 Crim. L. Mag. 234. § 1942. Punishment for fourth conviction of felony. A person who, after having been three times convicted within this state, of felonies or attempts to commit felonies, or under the law of any other state, government or country, of crimes which if committed within this state would be felonies, commits a felony within this state, shall be sentenced upon conviction of 397 §§ 1942-1943] PUNISHMENT [Ai-t. 174 such fourth, or subsequent, offense to imprisonment in a state prison for the term of his natural life, but after serving a period of time equal to the maximum penalty prescribed for the offense of which he is convicted, less the usual commutation for good eon- duet, shall become subject to the jurisdiction of the board of com- missioners of paroled prisoners, and may be paroled upon such conditions as said board may prescribe, but said board shall not grant an absolute discharge to such prisoner. Derivation: Penal Code, § 688a, added L. 1907, eh. 645. People v. Fabian (1908), 126 App. Div. 95. § 1943. (Renumbered § 2461 by L. 1909, ch. 524. In effect May 27, 1909.) 308 Art. 176] QUARANTINE [§§ 1960-1961 ARTICIiE 176. QUARANTINE.' Sechor 1960. Violation of quarantine laws by master of vessel. 1961. Giving false information; permitting person to land befors visit of health officers. 1962. Landing from vessel before visit of health officers. 1963. Going on board vessel at quarantine grounds without leave. 1964. Violating quarantine regulations. § 1960. Violation of quarantine laws by master of vesseL A master of a vessel subject to quarantine or visitation by the health officer, arriving in the port of New York, who refusea or omits: 1. To proceed to and anchor his vessel at the place assigned for quarantine, at the time of his arrival ; or, 2. To submit his vessel, cargo and passengers, to the examina- tion of the health officer, and to furnish all necessary information to enable that officer to determine the length of quarantine and other regulations to which they ought respectively to be subject ; or, 3. To remain with his vessel at quarantine during the period assigned for her quarantine, and while at quarantine to comply with the directions and regulations prescribed by law, and with such as any of the officers of health, by virtue of the authority given to them by law, shall prescribe in relation to his vessel, his cargo, himself, his passengers or crew. Is punishable by imprisonment not exceeding one year, or by a fine not exceeding two thousand dollars, or both. Derivation: Penal Code, § 391. § 1961. Giving false information; permitting person to land before visit of health officers. A master of a vessel hailed by a pilot, who: 1. Gives false information to such pilot, relative to the condi- tion of his vessel, crew or passengers, or the health of the place or places from whence he came, or refuses to give such informa- tion as shall be lawfully required; or, 2. Lands any person from his vessel, or permits any person, except a pilot, to come on board of his vessel, or unlades or trana- 399 26 §§ 1962-1964] QUARANTINE [Art. 176 ships any partion of his cargo, before his vessel has been visited and examined by the health officers; or, 3. Approaches with his vessel nearer the city of New York than the place of quarantine to which he may be directed, Is punishable by imprisonment not exceeding one year, or by a fine not exceeding two thousand dollars, or by both. Derivation: Penal Loue, § 302. § 1982. Landing from vessel before visit of health officers. A person, who, being on board any vessel at the time of her arrival at the port of New York, lands from such vessel, or un- lades, or transships, or assists in unlading or transshipping any portion of her cargo, before such vessel has been visited and ex- amined by the health officers, is punishable by imprisonment not exceeding one year, or by a fine not exceeding two thousand dol- lars, or both. Derivation: Penal Code, ! 303. § 1963. Going on board vessel at quarantine grounds with- out leave. A person who goes on board of, or has any communication or intercourse with any vessel at quarantine, or with any of the crew or passengers of such vessel, without the permission of the health officer, and every person who, without such authority, enters the quarantine grounds or anchorage, is punishable by imprisonment not exceeding one year, or by a fine not exceeding two thousand dollars, or both; and in addition thereto he may be detained at quarantine so long as the health officer directs, not exceeding twenty days. And in case such person shall be taken sick of any infectious, contagious or pestilential disease, during such twenty days, he may be detained at the marine hospital, for such further time as the health officer directs. Derivation: Penal Code, § 304. § 1964. Violating quarantine regulations. A person who, having been lawfully ordered by a health officer to be detained in quarantine, and not having been discharged, leaves the quarantine grounds or anchorage, or wilfully violates any quarantine law or regulation, is guilty of a misdemeanor. Derivation: Penal Code, § 305. 400 Art. 1781 RAILROADS [§ 1980 ARTICLE 178. RAILROADS. (SECTION 1980. Unlawful acts of and neglect of duty by railroad officials. 1981. Misconduct of public service commissioners and their em- ployees. 1982. Person unable tn read not to act or be employed as engineer; telegrapli operators. 1983. Misconduct of officials or employees on elevated railroads. 1984. Intoxication or other misconduct of railroad or steamboat em- ployees. 1985. Ringing bells and blowing whistles at crossings; obstructing highways. inSG. Placing passenger cars in front of other cars. 1987. Platforms and heating apparatus of passenger cars, i888. Guard posts; automatic couplers. 1989. Inciting railroad employees not to wear uniform; unauthorized wearing of uniform. 1990. Riding on freight trains; boarding cars in motion; obstrU'iting passage of car. 1991. Injuring railioad property and appurtenances; obstructing tracks. § 1980. Unlawful acts of and neglect of duty by railroad officials. An officer, agent, attorney or employee of a railroad corpora- tion, who: 1. Offers a place, appointment, position or any other considera- tion to a public service commissioner or to a secretary, clerk, agent, employee or expert employed by the public service com- missions; or, 2. After due notice, neglects or refuses to make or furnish any statement or report lawfully required by the public service com- missions, or wilfully hinders, delays or obstructs such commis- sioners in the discharge of their official duties, Is guilty of a misdemeanor. Derivation: Penal Code, § 416, as amended L. 1892, ch. 692; L. 1893, eh. G92. Mayor, etc. v. Starin (1887), IOC N. Y. 1. 4U1 §§ 1981-1983] KAILEOADS [Art. 178 § 1981. Misconduct of public service commissioners and their employees. Any public service commissioner, or ijiy secretary, clerk, agent, expert or other person employed by the public service commissions, who: 1. Directly or indirectly solicits or requests from or recommends to any railroad corporation, or to any officer, attorney or agent thereof, the appointment of any person to any place or position ; or, 2. Accepts, receives or requests, either for himself or for any other person, any pass, gift or gratuity from any railroad corporation; or, 3. Secretly reveals to any railroad corporation, or to any officer, member, or employee thereof, any information gained by him from any other railroad corporation. Is guilty of a misdemeanor. Derivation: Penal Code, § 417, as amended L. 1892, ch. 692. •§ 1982. Illiterate employees; telegraph operators. It shall be a misdemeanor for any person, firm or corporation en- gaged in the operation of a railroad within this state, whereon steam or electricity is used as a motive power, to employ in or about the operation of any engine, train or trains any engineer, assistant engi- neer, fireman, engine foreman, hostler, trainman or flagman who is unable to read the time tables of such railroad and ordinary hand- writing in the English language or unable to speak, hear and under- stand the English language, or to see and understand the signals required by the book of rules governing the operations of the engines and trains on such railroad; or for any person, firm or corporation in his ovm behalf, or in the behalf of any other person or corporation, knowingly to employ or use a person so unable to read, speak, hear and understand the English language, or to see and understand the signals aforesaid as such engineer, assistant engineer, fireman, engine fore- man, hostler, trainman or flagman ; or to employ a person as a tele- graph operator who is under the ase of eighteen years, or who has less than one year's experience in t3l<»s:raphing, to receive or t"ansTnit a telegT'aphie message or train ord°T for the movement of trains; pro- vided, however, that this section shall not apply to flagman at street or highway crossings. (Amended by L. 1916, ch. 424, in effect Sept. 1, 1916.) Berivation: Penal Code, § 418, as amended L. 1892, ch. 692; L. 1895, ch. 892. § 1983. Misconduct of officials or employees on elevated rail- roads. Any conductor, brakeman, or other agent or employee of an elevated railroad, who : 1. Starts any train or car of such railroad, or gives anv s'fmal or order to any engineer or other person to stii-t any such t^'^in or car, before every passenger therein who manifests an intention 402 Art. 178] RAILROADS [§§ 1984-1985 to depart therefrom by arising, or moving toward the exit tliereof, has departed therefrom; or before every passenger on the plat- form or station at which the train has stopped, who manifests a desire to enter the train, has actually boarded or entered the same, unless due notice is given by an authorized employee of such rail- road that the train is full, and that no more passengers can then be received; or, 2. Obstructs the lawful ingress or egress of a passenger to or from any such car; or, 3. Opens a platform gate of any such car while the train is in motion, or starts such train before such gate is firmly closed. Is guilty of a misdemeanor. Derivation: Penal Code, § 419, aa amended L. 1892, eh. 692. § 1984. Intoxication or other misconduct of railroad or steamboat employees. 1. Any person who, being employed upon any railway as engi- neer, conductor, baggage master, brakeman, switch-tender, fire- man, bridge-tender, flagman, signal man, or having charge of stations, starting, regulating or running trains upon a railroad, or, being employed as captain, engineer or other officer of a vessel propelled by steam, is intoxicated while engaged in the discharge of any such duties; or, 2. An engineer, conductor, brakeman, switch-tender, or other officer, agent or employee of any railroad corporation, who wil- fully violates or omits his duty as such officer, agent or employee, by which human life or safety is endangered, the punishment of which is not otherwise prescribed. Is guilty of a misdemeanor. Derivation: Penal Code, § 420, as amended L. 1892, cli. 602. § 1985. Ringing bells and blowing whistles at crossings ; ob- structing highways. A person acting as engineer, driving a locomotive on any rail- way in this state, who fails to ring the bell, or sound the whistle, upon such locomotive, or cause the same to be runs: or sounded, at least eisihty rods from any nlace whpre such railway crosses a travpled road or street on the same level, except in cities, or to continue the ringing of such bell or sounding such whistle at 403 §§ 1986-1987] RAILROADS [Art. 178 intervals, until such locomotive and the train to which the loco- motive is attached shall have completely crossed such road or street, or any officer or employee of a corporation in charge of a locomotive, train or car, who shall wilfully obstruct, or cause to be obstructed, any farm or highway crossing with any loco- motive, train or car for a longer period than five consecutive minutes, is guilty of a misdemeanor. Derivation: Fenal Code, § 421, as amended L. ISOl, ch. 358; L. 1900, ch. 759. Vandewater v. Railroad Co. (1892), 135 N. Y. 583, rev'g 63 Hun, 186, 17 N. Y. Supp. 652; Petrie v. Eailroad Co. (1892), 66 Hun, 287, 21 N. Y. Supp. 159; Piiillips v. Eailroad Co. (1E95), 84 Hun, <:15, 32 N. Y. Supp. 299; Laible V. Eailroad Co. (1897), 13 App. Div. 57'!, 43 N. Y. Supp. 1003; Petrie V. Railroad Co. (1901), 63 App. Div. 473, 71 N. Y. Supp. 860; Henavie v. Eailroad Co. (1901), 166 N. Y. 284, rev'g 44 App. Div. 041, 60 N. Y. Supp. 752; Eieh v. Pennsylvania R. R. Co. (1906), 112 App. Div. 821, 98 N. Y. Supp. 678; Burns v. D. & H. Co. (1906), 110 App. Div. 595, 90 N. Y. Supp. 509; Kurt v. Lake Shore, etc. R. Co. (1908), 127 App. Div. 842. § 1988. Placing passenger cars in front of other cars. A person being an officer or employee of a railway company, who knowingly places, directs, or suffers a freight, lumber, merchandise or oil car to be placed in rear of a car used for the con- veyance of passengers in a railway train is guilty of a misde- meanor. Derivation: Penal Code, § 422, as amended L. 1889, ch. 267. Bushby v. Railroad Co. (1887), 107 N. Y. 374, aff'g 37 Hun, 104. § 1987. Platforms and heating apparatus of passenger cars. A railroad corporation, or any officer or director thereof hav- ing charge of its railroad, or any person managing a railroad in this state, or any person or corporation running passenger cars upon a railroad into or through this state, who: 1. Fails to have the platforms or ends of the passenger cars run upon such railroad constructed in such manner as will prevent pas- sengers falling between the cars while in motion; or, 2. Except temporarily, in case of accident or emergency, heats any passenger car, while in motion, on any such railroad more that fifty miles in length, except a narrow-gauge railroad which nms on]y mixed trains, betwepn October fifteenth and May first, by any stove or furnace inside of or suspended from such car, 404 Art. 178] RAILROADS [§§ 1988-1989 except stoves of a pattern and kind approved by the public ser- vice commissions for cooking purposes in dining-room cars, and except within the extended time allowed by the public service com- missions, in pursuance of law, for introducing other heating apparatus, Is guilty of a misdemeanor. Derivation: Penal Code, § 423, as amended L. 1892, ch. 092. § 19S8. Guard posts ; automatic couplers. All corporations and persons other than employees, operating any steam railroad in this state: 1. Failing to cause guard posts to be placed in prolongation of the line of bridge trusses upon such railroad, so that in ease of derailment, the posts and not the trusses shall receive the blow of the derailed locomotive or car, or in lieu thereof failing to cause guard rails to be placed within the running rails of its track, or such other saleguard as the public service commission shall order, for the same purpose ; or, 2. Failing to equip all of their own freight cars, run and used in freight or other trains on such railroad, with automatic self- couplers, or running or operating on such railroad any freight car belonging to any such person or corporation, without having the same equipped, except in case of accident or other emergency, with auitomatic self-couplers, and except within the extended time al.owed by the public service commission, in pursuance of law, for tquipping such car with such couplers, is guilty of a misda- meanor, punishable by a fine of five hundred dollars for each offense. (Amended by L. 1913, eh. 398, in effect Sept. 1, 1913.) DeriTatioii! Penal Code, § 424, as amended L. 1892, ch. 692; L. 1896, Cb. 664. Cleary v. Long Island R. Co. (1900), 54 App. Div. 284, 66 N. Y. Supp. 568. § 19S9. Inciting railroad employees not to wear uniform ; un- authorized wearing of uniform. A person who : 1. Advises or induces any one, being an officer, agent or em- ployee of a railway company, to leave the service of such com- pany, because it requires a uniform to be worn b ysuch officer, agent or employee, or to refuse to wear such uniform, or any part thereof; or, 2. Uses any inducement with a person employed by a railway company to go into the service or employment of any other rail- way eomppiy, because a uniform is required to be worn; or, 405 §§ 1990-1991] EAILEOADS [Art. 178 3. Wears the uniform designated by a railway company with- out authority, Is guilty of a misdemeanor. Derivation: Penal Code, § 425. § 1990. Riding on railway cars; boarding cars in motion; obstructing passage of car; trespassing upon railway tracks. 1. A person who rides on any engine or any passenger car, bag- gage car, express car, freight car, wood ear or any other car. of any railway company, without authority or permission of the proper officers of the company or of the person in charge of said car or engine; or, with intention of not paying therefor; or, 2. Y.'ho gets on any car or train while in motion, for the pur- pose of obtaining transportation thereon as a passenger ; or, 3. Who wilfully obstructs, hinders or delays the passage of any car lawfully running upon any steam, or horse, or street rail- way; or, 4. Who, not being connected with or employed upon the railroad shall walk upon or along any railroad track or tracks, or right of way, except where and when necessary to cross the track or tracks or right of way where they shall be laid across or along the streets or highways, Is giiilty of a misdemeanor and punishable by a fine of not less than one dollar, nor more than five dollars. (Amended by L. 1917, ch. 350, in effect Sept. 1, 1917.) Derivation: Penal Code, § 426, as amended L. 1890, ch. 458. People ex rel. Gunn v. Webster (1894), 75 Hun, 278, 26 N. Y. Supp. 1007; Barrett v. Railroad Co. (18S8), 157 N. Y. 667, rev'g 92 Hun, 606, 36 N. Y. Supp. 1121; Kolzem v. Railroad Co. (1892), 1 Misc. 148, 20 N. Y. Supp. 700; Sharp v. Erie Railroad Co. (1904), 90 App. Div. 504, 85 N. Y. Supp. 553; East v. Brooklyn Heights Railroad Co. (1906), 115 App. Div. 685, 101 N. Y. Supp. 364. § 1991. Injuring railroad property and appurtenances; ob- structing tracks. A person who wilfully : 1. Displaces, loosens, removes, injures or destroys any rail, sleeper, switch, bridge, viaduct, culvert, embankment or structure 406 Art. 178] RAILROADS [§ 1991 or any part thereof, attached, appertaining to or connected with any railway, or by any other means attempts to wreck, destroy, or so damage any car, tender, locomotive or railway train or part thereof, while moving or standing upon any railway track in tliis state, as to render such car, tender, locomotive or railway train wholly or partially unfitted for its ordinary use, whether operated by steam, electricity or other motive power ; or, 2. Places any obstruction upon the track of any such railway; or, 3. Wilfully destroys or breaks any guard erected or maintained by a railroad corporation as a warning signal for the protection of its employees ; or, 4. Wilfully discharges a loaded fire-arm, or projects, or throws a stone or other missile at a railway train, or at a locomotive, car or vehicle standing or rdoving upon a railway ; or, 5. Wilfully displaces, removes, cuts, injures or destroys any wire, insulator, pole, dynamo, motor, locomotive, or any part thereof, attached, appertaining to or connected with any railway operated by electricity, or wilfully interferes with or interrupts any motive power used in running such road, or wilfully places any obstruction upon the track of such railroad, or wilfully dis- charges a loaded fire-arm, or projects or throws a stone or any other missile at such railway train or locomotive, car or vehicle, standing or moving upon such railway ; or, 6. Removes a journal brass from a car while standing upon any railroad track in this state, without authority from some person who has a right to give such authority. Is punishable as follows : First, If thereby the safety of any person is endangered, by imprisonment for not more than twenty years. Second. In every other case by imprisonment for not more than five years. Derivation: Penal Code, § 635, as amended L. 1890, ch. 280; L. 1892, ch. 692: L. 1895, ch. 726; h. 1897, ch. 183. 407 § 2010] RAPE [Art 180 ARTICLE 180. BAPE. Section 2010. Rape defined. 2U11. Peiietiatiuu sufHcient;. 2012. Wiieii pnysical ability must be proved. 2U13, No conviction for rape ou unsuppuitud testimony, § 2010. Rape defined. A person who perpetrates an act of sexual intercourse with a femaiL' not liis witt, against her will or without her consent; or, 1. When through idiocy, imbecility or any unsoundness of mind, either tenijwrary or permanent, she is incapable of giving consent, or, by reason of mdital or physical weakness, or imma- turity, or any bodily ailment, she does not offer resistance j or, 2. When her resistance is forcibly overcome; or, 3. When her resistance is prevented by fear of immediate and great bodily harm, which she has I'easonable cause to believe will be inflicted upon her; or, 4. When her resistance is prevented by stupor, or weakness of mind produced by an intoxicating, or narcotic, or ana;sthctio agent; or, when she is known by the defendant to be in such state of stupor or weakness of mind from any cause; or, 5. AVhcn she is, at the time, unconscious of the nattire of the act, and this is known to the defendant; or when she is in the cns- torly of the law, or of any officer thereof, or in any place of lawful detention, temporary or permanent. Is guilty of rape in the first degree and punishable by imprison- ment for not more than twenty years. A person who perpotratcs an act of sexual intercourse with a female,, not his wife, under the age of eighteen years, under cir- cumstanncs not amounting to rape in the first degree, is guilty of rape in the second deorroe, and punishable with imprisonment for not mnro than ton years. Derivation: Ppnnl Code, § 278, as amended L. 1882, cli. 384; L. 1887, ch. ()93; L. 18D2, ch. .325; L. 1805, ch. 460. Dean v. Raplee (1805), 145 N. Y. 310, aff'g 75 Hun, 380, 27 N. Y. Supp. , 43S; Ppnple v. Nelson (1807), 153 N. Y. 00, 12 N. Y. Cr. 368, rev'g 01 Hun, 635, 30 N. Y. Supp. 1130; People v. Mosier (1002), 73 App. Div. 5, 9, 76 N. 403 Art. 180] EAPE [§ 2010 y. Supp. C5; People v. Green (1905), 103 App. Div. 79, 84, 92 N. Y. Supp. 608, 19 Crim. Bep. 316. Snbd. 1. — State v. Atherton, 58 Iowa, 189; Hornback v. State, 35 Ohio Bt. 277, 35 Am. Rep. 608; Queen v. Earratt, L. E., 2 Cr. Cas. Res. 81, 7 Eng. Bep. 320; Bloodworth v. State, 6 Baxt. 614, 32 Am. Rep. 546; State v. Crow, 10 West. L. Jour. 501. Subd. 2.— People v. Dohring (1874), 59 N. Y. 374, 17 Am. Rep. 349; People V. Draper (1882), 28 Hun, 1, 1 N. Y. Cr. 138; People v. Bowles (1884), 3 N. Y. Cr. 447; People v. demons (1885). 37 Hun, 581, 3 N. Y. Cr. 563; Peo-ple v. Connor (18yi), 126 N. Y. 278; People v. Burns (1902), 73 App. Div. 613, 76 N. Y. Supp. 1022, 19 Am. L. Rev. 857; see also Gongle- man v. People, 3 Park, 15; People v. Monnais, 17 Abb. 345; Don Moran v. People, 25 Mich, 356, 12 Am. Rep. 283; Oleson v. State, 11 Nebr. 276, 38 Am. Eep. 366; State v. Johnson, 67 N. C. 55; Williams v. State, 1 Tex. Ct. App. 90, 28 Am. Rep. 399; Whitaker v. State, 50 Wis. 518, 36 Am. Rep. 856; Smith V. Fingar, 1 Alb. h. 101; Reg. v. Hallett, 9 C. & P. 748; Reg. v. Fletcher, 8 Cox C. C. 131; Reg. v. Dee, 15 Cox. Cr. 579, 36 Eng. Rep. 015, 6 Crim. L. Mag. 220; Com. v. Fogerty, 8 Gray, 489. ' Snbd. 3.— Reg. v. Fletcher, L. R., 1 Cr. Caa. Res. 391, 19 Cox Cr. Cas. 248, 2 Bish. Crim. Law (6th Ed.) Snbd. 4.— People v. Quinn, 50 Barb. 128; Com. v. Burke, 105 Mass. 376, 7 Am. Rep. 531; Reg. v. Young, 14 Cox Cr. Cas. 114, 28 Eng. Rep. 548; Reg. V. Mayers, 12 Cox. Cr. Cas. 311, 4 Eng. Rep. 559. Snbd. 5. — Baccio v. People (1869), 41 N. Y. 265; Higgins v. People (1874), 58 N. y. 377, atf'g 1 Hun, 317; Woods v. People (1874), 55 N. Y. 615, 14 Am. Rep. 309, rev'g 1 Th. & C. 610; Singer v. People (1878), 13 Hun, 418, aff'd 75 N. Y. 608; People v. Bowles (1884), 3 N. Y. Cr. 447; People V. demons (1885^, 3 N. Y. Cr. 570; Pepple v. Crowley (18S6), 102 N. Y. 234; People v. Stott (1886), 5 N. Y. Cr. 61; People v. O'SuUivan (1887), 104 N. Y. 481, 58 Am. Rep. 530, citmg Whart. Crim. Ev. 35, 46, 40; People v. Sharp (1887), 107 N. Y. 427, rev'g 45 Hun, 460; People v. Patterson (1888), 50 Hun, 44, 2 N. Y. Supp. 376; People v. Ma.\on (1890), 57 Hun, 367, 10 N. Y. Supp. 593; Zopfit v. Smith (1S90), 55 Hun, 547, 8 N. Y. Supp. 870; People v. Flaherty (1894), 79 Hun, 48, 29 N. Y. Supp. 641, 9 N. Y. Cr. 253, aff'd 145 N. Y. 597; People v. Grauer (1896), 12 App. Div. 465, 42 N. Y. Supp. 721; People v. Nelson (1897), 153 N. Y. 90, 12 N. Y. Cr. 368, rev'g 91 Hun, 635, 36 N. Y. Supp. 1130; People V. Freeman (1898), 25 App. Div. 583, 50 N. Y. Supp. 984; People v. Flaherty (1900), 162 N. Y. 532, rev'g 27 App. Div. 535, 50 N. Y. Supp. 574; People V. Eagone (1900), 54 App Div. 498, 67 N. Y. Supp. 23; People v. Dickerson (1901), 58 App. Div. 202, 68 N. Y. Supp. 715, 15 N. Y. Cr. 365; People v. Garner (1901), 64 App. Div. 410, 72 N. Y. Supp. 66, aff'd 165 N. Y. 585; People V. Mosier (1902), 73 App. Div. 9, 76 N. Y. Supp. 65, 16 N. Y. Cr. 541; People v. Estell (1905), 106 App. Div. 517, 94 N. Y. Supp. 748; see also People v. Abbott, 19 Wend. 192; People v. Aldrich, 11 N. Y. Supp. 464; Brown v. People, 7 How. 171; Conkey v. People, 1 Abb. Dec. 418, 5 Park. 31; Crossman v. Bradley, 53 Barb. 125; Hays v. People, 1 Hill, 351; People v. Jackson, 3 Park 391; People v. McGee, 1 Den. 19; People v. Stamford, 2 Wheel. Cr. Cas. 152; Woodiu v. People, 1 Park. 464; Lawson v. State, 20 409 §§ 2011-2012] RAPE [Art. 180 Ala. 65, 66 Am. Dee. 182; Barnes v. State, 88 Ala. 204, 16 Am. St. Rep. 48-, Dawson v. State, 29 Ark. 116; People v. Benson, 6 Cal, 221; People v. Mayes, 66 Cal. 597, 56 Am. Kep. 126; State v. Kinney, 44 Conn. 153, 26 Am. Eep. 436; see also 80 Am. Dec. 371, note; Stephen v. State, 11 Ga. 225; State V. Walters, 45 Iowa, 389; Sherwin v. People, 69 111. 55; State v. Rob- inson, 38 La. Ann. 618, 58 Am. Rep. 201 ; State v. Tilman, 30 La. Ann. 1249, 31 Am. Rep. 236; Com. v. Roosnell, 143 Mass. 32; Com. v. Murphy, 165 Mass. 66, 30 L. R. A. 735; Com. v. Nichols, 114 Mass. 2S5; Shart- zer V. State, 63 Md. 149, 52 Am. Rep. 501; Strang v. People, 24 Mich. 1; State v. Vandnais, 31 Minn. 382; State v. Patterson, 88 Mo. 88, 57 Am. Rep. 374; State v. Way, 5 Nebr. 287; Oleson v. State, 11 Nebr. 276, 38 Am. Rep. 366; State v. Murray, 63 N. C. 31; State v. Knapp, 45 N. H. 156; State v. Marvin, 35 N. H. 22; State v. Wal- lace, 9 N. H. 515; Clivir v. State, 45 N. J. L. 46; O'Meara v. State, 17 Ohio St. 515; Moore v. State, 17 Ohio, 521; Hornbeck v. State, 35 Ohio St. 277, 35 Am. Rep. 608; Sharp v. State, 15 Tex. App. 171; State v. Reed, 39 Vt. 417; Hardtke v. State, 67 Wis. 552; Reg. v. Connelly, 26 Upp. Can. Q. B. 323; Reg. v. Rearden, 4 F. & F. 76; Reg. v. Jones, 4 Law Rep. 154; Rex. v. Chambers, 3 Cox Cr. Cas. 92; Williams v. State, 8 Humphr. 585; Com. V. Lahey, 14 Gray, 92; Cora. v. Merriam, 14 Pick. 518; Benstine V. State, 2 Lea, 169, 31 Am. Rep. 593; Reg. v. Wood, 14 Cox Cr. Cas. 46, ?0 Eng. Rep. 393; Reg. v. Langlield, 58 Law Times (Folio) 127; Reg. v. Riley, 18 Q. B. Div. 481, 38 Eng. Rep. 537; Titus v. State, 7 Baxt. 132; Com. V. Regan, 105 Mass. 593; State v. Turner, 1 Houst. 76; Reg. v. Holmes, L. K., 1 Cr. Cas. Res. 334, 12 Cox. Cr. Cas. 137, 1 Eng. Rep. 226. § 2011. Penetration sufficient. Any sexual penetration, liowever slight, is sufficient to com- pleie the crime. Derivation: Penal Code, § 280. People V. Crowley (1880), 102 N. Y. 237, 4 N. Y. Cr. 168; People v. Tench (1901), 167 N. Y. 520, rev'g 59 A. D. 627; People v. Estell (1905), 106 App. Div. 616, 518, 94 N. Y. Supp. 748; see also Brown v. State, 76 Ga. 623; Taylor v. State, 111 Ind. 279; Reg. v. Hughes, 9 C. & P. 752. § 2012. When physical ability must be proved. No conviction for rape can be had against one who was under the age of fourteen years, at the time of the act alleged, unless his physical ability to accomplish prnetration is proved as an in- dependent fact, beyond a reasonable doubt. Derivation: Penal Code, S 279. People v. Crouclier, 2 Wbepl. Cr. Cas. 42; People v. RandolpTi, 2 Park. 174, 213: Williams v. State, 14 Ohio, 222. 45 Am. Dec. 536; Hitabiddle v. State, 35 Ohio St. 52, 35 Am. Rep. Sn."!: Foster v. Com., 96 Va. 306, 42 L. E. A. 589; Wagoner v. State, 5 Lea. 352, 40 Am. Rep. 36. 410 Art. 180] RAPE [§ 2013 § 2013. No conviction for rape on unsupported testimony. No conviction can be had for rape or defilement upon the testimony of the female defiled, unsupported by other evidence. Derivation: Penal Code, § 283, as amended L. 1886, ch. 663. Kenyon v. People (1863), 26 N. Y. 203; People v. Plath (1885), 100 N. Y. 590, 4 N. Y. Cr. 53; People v. Powell (1886), 4 N. Y. Cr. 586; People V. Stott (1886), 5 N. Y. Cr. 61; People v. Crowley (1886), 102 N. Y. 234; People v. O'Sullivan (1887), 104 N. Y. 481; People v. Kearney N. Y. 481; People v. O'Sullivan (1887), 104 N. Y. 481; People v. Kearney (1888), 110 N. Y. 188, rev'g 47 Hun, 129; People v. Terwilliger (1893), 74 Hun, 310, 26 N. Y. Supp. 674; People v. Flaherty (1894), 79 Hun, 48, 29 N. Y. Supp. 641, 9 N. Y. Cr. 253, aff'd 145 N. Y. 597; People v. Grauer (1896), 12 App. Div. 464, 42 N. Y. Supp. 721; People v. Flaherty (1898), 27 App. Div. 535, 50 N. Y. Supp. 574, conviction reversed, 152 N. Y. 540; People V. Page (1900), 162 N. Y. 272, 14 N. Y. Cr. 517, rev'g 20 App. Div. 637, 47 N. Y. Supp. 1145; People v. Butler (1900), 55 App. Div. 361, 66 N. Y. Supp. 851, 15 N. Y. Cr. 207.; People v. Panyko (1902), 71 App. Div. 324, 76 N. Y. Supp. 945, 16 N. Y. Cr. 438; People v. Miller (1902), 70 App. Div. 592, 75 N. Y. Supp. 655, 16 N. Y. Cr. 396; People v. Swasey (1902), 77 App. Div. 185, 78 N. Y. Supp. 1103, 17 N. Y. Cr. 138; People v. Haischer (1903), 81 App. Div. 559, 81 N. Y. Supp. 79, 17 N. Y. Cr. 287; People v. Green (1905), 103 App. Div. 79, 92 N. Y. Supp. 508; People v. Biglizen (1906), 112 App. Div. 225, 98 N. Y. Supp. 361; People v. Smith (1906), 114 App. Div. 513, 100 N. Y. Supp. 259; see also People v. Brandt, 14 N. Y. St. 419, aff'd 110 N. Y. 647; Conkey v. People, 1 Abb. Dec. 418; Crandall V. People, 2 Lans. 309; People v. Cullen, 6 N. Y. Supp. 886; People v. Kir- wan, 22 N. Y. Supp. 160; People v. Morris, 12 N. Y. Supp. 492, 35 N. Y. St. 942; Woodin v. People, 1 Park, 464. il\ §§ 2030-2031] KEAL PKOPERTT [Art. 182 ARTICLE 182. REAL PROPERTY. Section 2030. Contracts in relation to Indian lands. 2C31. Buying lands in suit of person not in possession. 2C32. Buying pretended titles to real property. 2033. Mortgage of lands under adverse possession not prohibited. 2034. Forcible entry and detainer. 2035. Returning to take possession of lands after being removed by legal process. 2036. Unlawful intrusion on real property. 2037. Person leaving the state to elude provisions of this article. 2038. Witnesses' privilege. 2039 Unauthorized appUcations for loans upon real property. 2040. Wilful violation of the terms of a lease. 2041. Discrimination against children in dwelling houses. § 2030. Contracts in relation to Indian lands. A person who without the authority and consent of the l^a- lature, in any manner or for or on any terms, purchases any lands within this state of any Indian residing therein, or makes any contract with any Indian for or concerning the sale of any lands within this state, or gives, sells, demises, conveys or otherwise dis- poses of any such lands, or any interest therein, or offers so to do, or enters upon or takes possession of or settles upon any such lands, by pretext or color of any right or interest in the same, in consequence of any sneh purchase, or contract made or to be made, since October fourteenth, seventeen hundred and seventy- five, is guilty of a misdemeanor. Derlvatloii: Penal Code, § 384a, added L. 1803, ch. 692. § 2031. Buying lands in suit of person not in possession. A person who takes a conveyance of any lands or tenements, or of any interest or estate therein, from any person not being in the possession thereof, while such lands or tenements arc the subject of controversy, by suit in any Court, knowing the pendency of such suit and that the grantor was not in possession of such lands or tenements, is guilty of a misdemeanor. Derivation: Penal Code, § 129. Meigs V. Roberts (1809), 42 App. Div. 200, 50 N. Y. Supp. 215; ArentB v. Long Island R. Co. (18D9), 30 App. Div. 370, 55 N. Y. Supp. 401; Danzin- ger V. Boyd (1890), 120 N. Y. 028. aOTg a5 N. Y. Super. 637; City Real ■412 Art. 182] REAL PROPERTY [§§ 2032-2034 Estate Co. v. Clark (1902), 36 Misc. 709, 714, 74 N. Y. Supp. 405; see also Ctamberlain v. Taylor (Ct. of App.), 12 Abb. N, C. 473. § 2032. Buying pretended titles to real property. A person who buys or sells, or in any manner procures, or takes or makes any covenant or promise to convey any right, or title real or pretended, to any lands or tenements, unless the grantor thereof or the person making such covenant or promise has been in possession, or he and those by whom he claims, have been in possession of the same or of the reversion and remainder thereof, or have taken the rents and profits thereof for the space of one year before such covenant or promise made, is guilty of a mis- demeanor. Derivation: Penal Code, § 130. § 2033. Mortgage of lands under adverse possession not pro- hibited. Sections two thousand and thirty-one and two thousand and thirty-two shall not be construed to prevent any person having a just title to lands in the adverse possession of another, from executing a mortgage upon such lands, nor shall said sections apply to any conveyance or release of lands or tenements to any person in the lawful possession thereof. Derivation: Penal Code, § 131, as amended L. 1888, ch. 282. § 2034. Forcible entry and detainer. A person, guilty of using, or of procuring, encouraging or as- sisting another to use, any force or violence in entering upon or detaining any lands or other possessions of another, except in the cases and the manner allowed by law, is guilty of a misdemeanor. Derivation: Penal Code, § 465. McMorris v. Howell (1903), 89 App. Div. 272, 277, 85 N. Y. Supp. 1018; see also People v. Anthony, 4 Johns. 198; Cain y. Flood, 21 Civ. Proc. 116, 38 N. Y. St. 197, 14 N. Y. Supp. 776; People v. Carter, 29 Barb. 208; Carier V. NcwboM, 7 How. 166; People v. Farrell, 28 N. Y. St. 43, 8 N. Y. Supp. 232; People v. Field, 52 Barb. 198, 58 Barb. 570, 1 Lans. 222; People v. Leonard, 11 Johns. 504; Mather v. Hood, 8 Johns. 44; Mickle's Case, 1 City Hall Rec. 90; Mickle v. Edwards, 1 City Hall Eec. 119; People v. Nelson, 13 Johns. 340; People v. Reed, 11 Wend. 147; People v. Eickert, 8 Cow. 226; People V. Shaw, 1 Cai. 125; People v. Smith, 24 Barb, 15; People v. Van Hostrand. 9 Wend. 50; People v. Wilson, 13 How. 446; Matthews v. ien- 413 §§ 2035-2038] REAL PEOPERTY [Art. 182 tell, 8 Leg. Inst. 22; State v. Pearson, 2 N. H. 550; People v. Godfrey, 1 Hall, 240. § 2035. Returning to take possession of lands after being re- moved by legal process. A person, who has been removed from any lands by process of law, or who has removed from any lands pursuant to the lawful adjudication or direction of any court, tribunal or officer, and who afterwards, without authority of law, returns to settle or reside upon or take possession of such lands, is guilty of a misdemeanor. Derivation: Penal Code, § 466. § 2036. Unlawful intrusion on real property. A person, who intrudes upon any lot or piece of land within the bounds of a city or village, without authority from the owner thereof, or who erects or occupies thereon any hut, or other struc- ture whatever without such authority; and a person who places, erects, or occupies within the bounds of any street or avenue of a city or village, any hut, or other structure, without lawful au- thority, is guilty of a misdemeanor. Derivation: Penal Code, § 467. People V. Stevens (1888), 109 N. Y. 169; People v. Bates (1894), 79 Hun, 684, 29 N. Y. Supp. 894; Hewitt v. Newburger (1894), 141 N. Y. 638, rev'g 66 Hun, 230, 20 N. Y. Supp. 913. § 2037. Person leaving the state to elude provisions of this article. A person who leaves the state, with intent to elude any provision of the last three sections, or to commit any act without the state, which is prohibited by the last three sections, or who, being a resident of this state, does any act without the state, which would be punishable by the provisions of the last three sections, if com- mitted within the state, is guilty of the same offense and subject to the same punishment, as if the act had been committed within this state. Derivation: Penal Code, § 461. ^ 2038. Witnesses' privilege. No person shall be excused from giving evidence upon an in- vestigation or prosecution for any of the offenses specified in seo- 41i Art. 182] REAL PROPERTY [§§ 2039-2041 tions two thousand and thirty-four, two thousand and thirty-five and two thousand and thirty-six, upon the ground that the evi- dence might tend to convict him of a crime. But such evidence shall not be received against him upon any criminal proceeding. Dexivatlon: Penal Code, § 469. § 2039. Unauthorized applications for loans upon real prop- erty. In cities of the first and second class, any person who shall make application to any other person, or to any corporation, for a loan upon any real property without the written authority of the owner of such real property, or of his attorney in fact, appointed in writing, or of a person who has made a written contract for the purchase of such property with the oAvner thereof, shall be guilty of a misdemeanor. Derivation! Code Civ. Proc., S 1679, in part. ' § 2040. Wilful violation of the terms of a lease. Any lessor, agent, manager, superintendent or janitor of any building, or part thereof, the lease or rental agreement whereof by its terms, expressed or implied, requires the furnishing of hot or cold water, heat, light, power, elevator service, telephone service or any other service or facility to any occupant of said building, who wilfully or intentionally fails to furnish such water, heat, light, power, elevator service, telephone service or other service or facility at any time when the same are necessary to the proper or cus- tomary use of such building, or part thereof, or any lessor, agent, manager, superintendent or janitor who wilfully and intentionally interferes with the quiet enjoyment of the leased premises by such occupant, is guilty of a misdemeanor. (Added by L. 1920, ch. 131, and amended by L. 1920, cL .a51, in effect Sept. 27, 1920.) § 2041. Discrimination against children in dwelling houses. Any person, firm or corporation in any city owning or having in charge any apartment house, tenement house, or other building used for dwelling purposes who shall refuse to rent any or part of any such building to any person or family solely on the ground that such person or family has or have a child or children shall be guilty of a misdemeanor and on conviction thereof shall be punished by a fine of not less than fifty nor more than one hundred dollars for each offense. (Added by L. 1921, ch. 208, in effect April 21, 1921.) 415 §§ 2050-2053] EECOEDS AND DOCUMENTS [Art. 184 ARTICLE 184. RECOEDS AND DOCUMENTS. Section 2050. Injury to pub:ic record. 3051. Offering 'iIst or forged instruments to be filed or recorded. 2052. Stealing, ilesl-'uction, mutilation or concealment of will or olher testamentary instrument. 2053. Alteration of legal process, pleading or record. f 2050. Injury to public record. A person who, wilfully and unlawfully removes, mutilates, destroys, conceals, or obliterates a record, map, book, paper, document, or other thing, filed or deposited in a public office or with any public officer by authority of law, is punishable by imprisonment for not more than five years, or by a fine of not more than five hundred dollars, or by both. Derivation : Peuixl Cede, § 94. People V. Wise (ISSr,), 3 N. Y. Cr. 303, 3 How. Pr. (N. S.) 92: People 7. Peck (1893), 188 N. Y. 286. aff'g 67 Run. 560, 22 N. Y. Supp. 570 : People V. Mills (1904), 178 N. Y, 274, aff'g 91 App. Div. 331, 18 N. Y. Crim. Kep. 279, 86 N. Y. Supp. 529: People v. Herzog (1905), 47 Misc. 50, 93 N. Y. Supp. 357; see also Ayres v. Covill, 19 Barb. 263. § 2051. Ofierin^ false or forged instruments to be filed or recorded. A person ivho knowingly procures or offers any false or forged insirument to be filed, registered or recorded in any public office within this state, which instrument, if genuine, might be filed or registered or recorded under any law of this state or of the United States, is guilty of felony. Derivation: Penal Code, § 95. § 2052. Stealing, destruction, mutilation or concealment of will or other testamentary instrument. A person who steals or for any fraudulent purpose destroys, mutilates or conceals a will, codicil or other teslaraentary instrument, or who aids, assists, advises or conspires with another to steal or for any fraudulent purpose to destroy, muti.ate or conceal a will, codicil or other testamentary instrument shall be guilty of a felony punishable by imprisonment for not more than five years or by a, fine not exceeding one thousand dollars, or by both. An indictment for a violation of this section need not contain any allegation of value or ownership. No person shall be excused from attend- ing and testifying, or producing any books, papers or o^her documsnts be- fore any court or magistrate, upon any investigation, proceeding or tria^, for a violation of any of the provisions of this section, upon the ground or for the reason that the testimony or evidence, documentary or otherwise, re- quired of him may tend to convict him of a erims or to subject him to a penalty or forfeiture; but no person shall be prosecuted or subjected to any penalty or forfeitu-e for or on account of any transaction, matter or thing concerning which- he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding. (Added by L. 1910, ch. 357, in effect Sept. 1, 1910.) § 2C53. Alteration of legal process, pleading or record. A process, p'eading, or record, shall not be altered, by the clerk or any other officer of the court, or by any other person, without Ihe direction of the court, or of another court of competent authority ; except in a case where a paity, or his attorney, is specially authorized by law to amend the plead- ing. (Added by L. 1920, ch. 567, in effect /.pril 15, 1921.) Derivation: Code of Civil Procedure, § 727. 416 Art. 186] EELIGION [§§ 2070-2072 ARTICLE 186. RELIGION. Section 2070. Preventing performance of religious act. 2071. Disturbing religious meetings. 2072. Definition of the ofTense. 2073. Compelling adoption of a form of belief. 2074. Preventing presentation of living cuaracters representing the Divine Person. § 2070. Preventing performance of religious act. A person who wilfully prevents by threats or violence another person from performing any lawful act enjoined upon or recom- mended to such person by the religion which he professes, is guilty of a misdemeanor. Derivation: Penal Code, § 273. § 2071. Disturbing religious meetings. A person who wilfully disturbs, interrupts or disquiets any assemblage of people met for religious worship, by any of the sets enumerated in the next section, is guilty of a misdemeanor. Derivation: Penal Code, § 274. Wall V. Lee (1805), 34 N. Y. 141; People v. Crowley (1881), 23 Hun, tl2; S'einert v. Sobey (1897), 14 App. Div. 505, 44 N. Y. Supp. 146; see also Bccket V. Lawrence, 7 Abb. Pr. (N. S.) 403; People v. Brown, 1 VVIieel. Cr. Cas. 124; People v. Degey, 2 Wlieel. Cr. Cas. 135; Farren v. Warren, 3 Wend. 253; First Bap. Ch. v. Utica & Schen. R. Co. Barb. 3in, 5 Barb. 79; Foster V. Smitli, 10 Wend. 377; State v. Smith, 5 Harring. 490; Reed v. Inglis, 12 U. C. C. P. 101. § 2072. Definition of the offense. The following acts, or any of them, except as permitted by Sfction tv'o hundred and eighty-two of membership corporations law, constitute a disturbance of a religious meeting: 1. Uttering any profane discourse, committing any rude or indecent act, or making any unnecessary noise, either within the place where such meeting is held, or so near it as to disturb the order and solemnity of the meeting; 2. Engaging in, or promoting, within two miles of the place where a religious meeting is held, any racing of animals or gam- bling of any description; or elsewhere than in a city or village 4iV ■ ^ 2073] KELIGIOK [Art 186 keeping open any huckster shop, inn, store or grocery, in any other place than that in which such business shall have usually been carried on; or elsewhere than in a city exhibiting within the distance aforesaid any shows or plays, unless the same shall have been duly licensed by the proper authorities; 3. Obstructing in any manner without authority of law, within the like distance, free passage along a highway to the place of Buch meeting. Derivation: Penal Code, § 275, as amended L. 1893, ch. 292. People V. Miles (1908), 123 App. Div. 871, 108 N. Y. Supp. 510. § 2073. Compelling adoption of a form of belief. An attempt by means of threats or violence, to compel any per- son to adopt, practice or profess a particular form of religious belief, is a misdemeanor. Derivation: Penal Code, § 272. § 2074. Preventing presentation of living characters repre- senting the Divine Person. No person, association of persons, company, or corporation shall in any public or private place, hall, theatre, or auditorium present or enact or suffer to be presented or enacted any exhibi- tion, play, drama, 'tragedy, opera, comedy, or performance in which there shall be a living character representing the deity or known by any appellation which by the recognized standards of any particular form of religious worship or belief indicates the deity or is reasonably referable alone to such deity, which is wor- shipped, reverenced, adored, or venerated by any religious denom- ination or sect or class of people professing a pantieular and well- defined form of religious belief and practice. Any violation of this section shall be a misdemeanor. Any license granted to the owner, proprietor, or manager of the place where the offense is committed must upon conviction of this offense be revoked, . (Added by L. 1911, ch. 319, in effect Sept. 1, 1911.) *1« Art. 188] RIOTS, ETO [§§ 209U-209i ARTICLE 188. RIOTS AND UNI.AWFUL ASSEMBUES. Section 2090. Riot defined. 2091. Punishment of riot. 2092. Unlawful assemblies. 2093. Kemaining present at place of riot or unlawful assembly after warning. 2094. Remaining present at place of a meeting, originally lawful, after it has adopted an unlawful purpose. 2095. Refusing to assist in arresting rioter. 2095-a. Display of red flag. 2096. Leaving state with intent to elude provisions of this article. 2097. Witnesses' privilege. § 2090. Riot defined. Whenever three or more persons, having assembled for any purpose, disturb the public peace, by using force or violence to any other person, or to property, or threaten or attempt to com- mit such disturbance, or to do an unlawful act by the use of force or violence, accompanied with the power of immediate ex- acntion of such threat or attempt, they are guilty of riot. Derivation: Penal Code, § 449. People V. White (1865), 32 N. Y. 465, aff'g 55 Barb. 606; Marshall v. City ef Buffalo (1900), 50 App. Div. 149, 65 N. Y. Supp. 411; Matter of Howard (1905), 110 App. Div. 61, 97 N. Y. Supp. 23; Adamson v. City of N. Y. (1907), 188 N. Y. 255, afPg 110 App. Div. 58, 96 N. Y. Supp. 907; see also Rodman's case, 2 City Hall Rec. 88 ; Scott's case, 2 City Hall Rec. 25 ; Spies v. People, 122 111., 1, 3 Am. St. Rep. 320; State v. Brown, 69 Ind. 95, 35 Am. Rep. 210. § 2091. Punishment of riot. A person guilty of riot or of participating in a riot, either by being personally present, or by instigating, promoting, or aid- ing the same, is punishable as follows: 1. If the purpose of the assembly, or of the acts done or threat^ cned or intended by the persons engaged, is to resist the enforc- ment of a statute of this state, or of the United States, or to obstruct any public officer of this state, or of the United States, in serving or executing any process or other mandate of a court of competent jurisdiction, or in the performance of any other duty ; or if the offender carrier, at the time of the riot, fire-arms or any other dangerous weapon, or is disguised; by imprisonment 419 §§ 2092-2093J RIOTS, ETC. [Art. 188 for not more than five years, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment. 2. In any other case, if the offender directs, advises, encourages, or solicits other persons, present or participating in the riot or assembly, to acts of force or violence, by imprisonment for not more than two years, or by a fine of not more than five hundred dollars, or by both such fine and imprisonment. 3. In any case, not embraced within the foregoing subdivisions of this section, by imprisonment for not more than one year, or by a fine of not more than two hundred and fifty dollars, or by both such fine and imprisonment. Beriiration: Penal Code, § 450. § 2092. Unlawful assemblies. Whenever three or more persons: 1. Assemble with intent to commit any unlawful act by force; or, 2. Assemble with intent to carry oiit any purpose in such a manner as to disturb the public peace; or, 3. Being assembled attempt or threaten any act tending to- wards a breach of the peace, or an injury to person or propei'ty, or any unlawful act; Such an assembly is unlawful, and every person participating therein by his presence, aid or instigation, is guilty of a mis- demeanor. But this section shall not be so construed as to prevent the peaceable assembling of persons for lawful purposes of protest or petition. Derivation: Penal Code, § 451, as amended L. 1882, cli. 384. People V. Most (1891), 128 N. Y. 108, 8 N. Y. Cr. 273. 20 Am. St. Rep. 458; see also State v. Wood, 9 Bosw. 15. § 2093. Remaining present at place of riot or unlawul assem- bly after warning. A person, remaining present at the place of an unlawful assem- bly or riot, after the persons assembled have been warned to disperse by a magistrate or public ofilcer, is guilty of a misde- meanor, unless as a public officer, or at the request or command of a public officer, he is endeavoring or assisting to disperse 420 Art, 188] RIOTS, ETC. IJs 2094-2097 the same, or to protect persons cr property, or to arrest the offenders. Derivation: Penal Code, § 454. § 2094. Remaining present at place of a meeting, originally lawful, after it has adopted an unlawful purpose. Where three or more persons assemble for a lawful purpose, and afterwards proceed to commit an act that would amount to a riot, if it had been the original purpose of the meeting, every person who does not retire when the change of purpose is made known, or such act is committed, except public officers and per- sons assisting them in attempting to disperse the assembly, is guilty of a misdemeanor. Denvation: Penal Code, § 455. § 2095. Refusing to assist in arresting rioter. A person, present at the place of an unlawful assembly or riot, who, being commanded by a duly authorized public officer to act or aid in suppressing the riot, or in protecting persons or property, or in arresting a person guilty of or charged with participating in the unlawful assembly or riot, neglects or refuses to obey such command, is guilty of a misdemeanor. Derivation: Penal Code, § 456. § 2095-a. Display of red flag. A person, who shall display or expos© to view the red flag in any public assembly or parade as a symbol or emblem of any organiza- tion or association, or in furtherance of any political, social or economic principle, doctrine or propaganda, is guilty of a misde- meanor. (Added by L. 1919, ch. 409, in effect May 5, 1919.) § 2096. Leaving state with intent to elude provisions of this article. A person who leaves the state, with intent to elude any pro- vision of this article, or to commit any act without the State, which is prohibited by this article, or who, being a resident of this state, does any act without the state, which would be pun- ishable by the provisions of this article, if committed within the state, is guilty of the same offense and subject to the same pun- ishment, as if the act had been committed within this State. Derivation: Penal Code, § 461. § 2097. Witnesses' privilege. IVo person shall be excused from giving evidence upon an in- vestigation or prosecution for any of the offenses specified in this article, upon the ground that the evidence might tend to convict him oT a crime. But such evidence shall not be received against him upon any criminal proceeding. Derivation: 'Penal Code, § 469. 421 2120-2121] ROBBEEY [Art. 190 ARTICI.I: 190. BOBBEBT. BBCnoN 2120. Robbery defined. 2121. Force or fear must be employed. 2122. Degree of force immaterial. 2123. Taking property secretly not robbery. 2124. Robbery in first degree. 2125. Punialiment of robbery in first degree. 2126. Robbery in second degree. 2127. Punishment of robbery in second degree. 2128. Robbery in third degree. 2129. Punishment of robbery in third degree. § 2120. Robbery defined. Robbery is the unlawful taking of personal property, from the person or in the presence of another, against his will, by means of force, or violence, or fear of injury, immediate or future, to his person or property, or the person or property of a relative or member of his family, or of any one in his company at the time of the robbery. Derivation: Penal Code, § 224. Brooks V. People (1872), 49 N. Y. 436, 10 Am. Rep. 398; Murphy v. People (1874), 3 Hun, 114, 5 Th. & C. 302; Mahoney v. People (1874), 3 Hun, 202, 5 Th. & C. 329; Hope v. People (1880), 83 N. Y. 426, 38 Am. Rep. 460; People v. McGinty (1881), 24 Hun, 62; People v. Glynn (1889), 54 Hun, 382, 7 N. Y. Supp. 555, aff'd without opinion 123 N. Y. 631; People V. Rose (1889), 52 Hun, 33, 4 N. Y. Supp. 787; People v. O'Neil (1889), 6 N. Y. Cr. 226, 4 N. Y. Supp. 410; People v. DuVeau (1905), 105 App. Div. 381, 382, 94 N. Y. Supp. 225; People v. Munroe (1907), 119 App. Div. 705, 104 N. Y. Supp. 675, 21 N. Y. Cr. Rep. 210; Bloomer v. People, 1 Abb. Ct. App. Dec. 146; People v. Hall, 6 Park, 642; McCloskey v. People, 5 Park, 299; People v, McDaniels, 1 Park, 198; see also Evans v. State, 80 Ala. 4; Bussey v. State, 71 Ga. 100, 51 Am. Rep. 256; Long v. State, 12 Ga. 293; Shinn v. State, 64 Ind. 13, 31 Am. Rep. 110; Com. v. Humphreys, 7 Mass. 242; State v. Sommers, 12 Mo. App. 374; State v. Gorham, 55 N. H. 152; Rex V. Cannon, R. & R. 146, 1 Hale 533. § 2121. Force or fear must be employed. To constitute robbery, the force or fear must be employed either to obtain or retain possession of the property or to prevent or overcome resistance to the taking. If employed merely as a means of escape it does not constitute robbery. Derivation: Penal Code, § 225. 422 Art. 1901 ROBBERY [§§ 2122-2124 Mahoney v. People (1874), 3 Hun, 202, 59 N. Y. 659; People v. Glynn (1889), 54 Hun, 332, 7 N. Y. Supp. 555, aff'd without opinion, 123 N. Y. 631; sec also People v. Foley, 9 N. Y. St. 34, 27 Week. Dig. 217; McClosky V. People, 5 Park, 299. § 2122. Degree of force immaterial. When force is employed in either of the ways specified in the last section, the degree of force employed is immaterial. Derivation: Penal Code, § 226. Mahoney v. People (1874), 3 Hun, 202, 59 N. Y. 659; People v. McGinty (1881), 24 Hun, 62; see also People v. Foley, 27 Week. Dig. 217, 9 N. Y. St. 34. § 2123. Taking property secretly not robbery. The taking of property from the person of another is robbery, when it appears that although the taking was fully completed without his knowledge, such knowledge was prevented by the use of force or fear. Derivation: Penal Code, § 227. Norris' Case, 6 City Hall Eee. 86. § 2124. Robbery in first degree. An unlawful taking or compulsion, if accomplished by force or fear, in a case specified in the foregoing sections of this article is robbery in the first degree, when committed by a person: 1. Being armed with a dangerous weapon; or, 2. Being aided by an accomplice actually present; or, 3. When the offender inflicts grievous bodily harm or injury upon the person from whose possession, or in whose presence, the property is taken, or upon the wife, husband, servant, child, or inmate of the family of such person, or any one in his company at the time, in order to accomplish the robbery. Derivation: . Penal Code, § 228. People V. Mclnerney (1886), 5 N. Y. Cr. 48; People v. Glynn (18R9), 54 Hun, 332, 7 N. Y. Siipp. 5.55, alT'd 123 N. Y. 631; Peoplf? v. Flanagan (1897), 22 App. Div. 516, 48 N. Y. Supp 241,12 N. Y. Cr. 510; People v. Stack (ISnO), 41 App. Div. 548, 58 N. Y. Supp. C91; People v. DuVeau (1905), 105 App. Div 381, 382, 387, 94 N. Y. Supp. 225; People v. Jaffe (1906), 185 N. Y. 497, 19 ' Cr. ' Rep.' 278, rev'g 112 App. Div. 516, 98 N. Y. Supp. 486; People V. MoKenna (19071, 118 App. Div. 766, 103 N. Y. Supp. 870; People V. Munroe (1008), 190 N. Y. 437, rev'g 119 App. Div. 705, 104 N. Y. Supp. 675, 21 Cr. Rep. 210. 423 §§ 2125-2129J KOBBERY [Art. 190 § 2125. Punishment of robbery in first degree. Robbery in the first degree is punishable by imprisonment for a term not exceeding twenty years. Oerivation: Penal Code, § 231, as amended L. IS92, cli. 6G2. People V. Munroe (1907), 119 App. Div. 705, 104 N. Y. Supp. 675, 21 Cr, Eep. 210. • § 2126. Robbery in second degree. Such unlawful taking or compulsion, when accomplished by force or fear, in a case specified in the foregoing sections of this article, but not under circumstances amounting to robbery in the first degree, is robbery in the second degree, when accomplished: 1. By the use of violence; or, 2. By putting the person robbed in fear of immediate injury to his i>erson or that of someone in his company. Derivation: Penal Code, § 229. People V. Holfelder (1887), 5 N. Y. Cr. 179; People v. Munroe (1907), 119 App. Div. 705, 104 N. Y. Supp. 675, 21 Crim. Rep. 211. § 2127. Punishment of robbery in second degree. Robbery in the second degree is punishable by imprisonment for a term not exceeding fifteen years. DerlTation: Penal Code, § 232, as amended L. 1S92, eh. 6G2. § 2128. Robbery in third degree. A person who robs another, under circumstances not amounting to robbery in the first or second degree, is guilty of robbery in the third degree. DeriTation: Penal Code, § 230. People V. Munroe (1907), 119 App. Div. 705, 104 N. Y. Supp. 675, 21 Cr. Rep. 210. § 2129. Punishment of robbery in third degree. Robbery in the third degree is punishable by imprisonment for not more than ten years. Derivation! Penal Code, 5 233. People V. Munroe (1907), 119 App. Div. 705, 104 N. Y. Supp. C'.'.'). 424 Art 1921 SAEBATH § 2140 AIITICI.E 192. SABBATH. Section 2140. The Sabbath. 2141. Sabbath breaking. 2142. Punishment for Sabbath breaking. 2143. Labor prohibited on Sunday. 2144. Persons observing another day as a Sabbath. 2145. Public sports on Sunday. 2146. Trades, manufactures, and mechanical employments prohibited on Sunday. 2147. Public traffic on Sunday. 2148. Serving process on Sunday. 2149. Forfeiture of commodities exposed for sale on Sunday. 2150. Maliciously serving process on Saturday on person wno Keeps Saturday as holy time. 2151. Processions and parades on Sunday. 2152. Theatrical and otlier performances on Sunday. 2153. Barbering on Sunday. 2154. Motion picture exhibitions on the first day of the week. § 2140. The Sabbath. The first day of the week being by general consent set apart for rest and religious uses, the law prohibits the doing on that day of certain acts hereinafter specified, which are serious interrup- tions of the repose and religious liberty of the community. DeriTation: Penal Code, § 259. Smith V. Wilcox (1862), 24 N. Y. 353; Neuendorff v. Duryea (1877), 69 N. Y. 557, aff'g 6 Daly, 276; Matter of Agudath Hakehiloth (1S9C), 18 Misc. 717, 42 N. Y. Supp. 985; People v. Havnor (189C), 149 N. Y. 194, aff'g 1 App. Div. 459, 37 N. Y. Supp. 314; People ex rel. Bedell v. DeMott (1902), 38 Misc, 171, 172, 77 N. Y. Supp 249, 16 N. Y. Cr. 552; Dunham v. Bing- hampton & L. B. B. Assn. (1904), 44 Misc. 114, 89 N. Y. Supp. 702; People V. Poole (1904), 44 Misc. 119, 89 N. Y. Supp. 773; Brighton Athletic Club V, McAdoo (1905), 47 Misc. 432, 434, 94 N. Y. Supp. 391; Eden Musee Co. V. Bingham (1908), 58 Misc. C40, 108 N. Y. Supp. 200; Moore v. Owen (1908), 58 Misc. 335, 109 N. Y. Supp. 585; United Vaudeville Co. v. Zeller (1908), 58 Misc. 17, 108 N. Y. Supp. 189; see also Andrews v. Bible Society, 4 Sandf. 156; People v. Ball, 42 Barb. 324; People v. Hoym, 20 How. Pr. 76; Lindcnmuller v. People, 33 Barb. 508, 509, 21 How. Pr. 156; People v. Buggies", 8 Johns. 210; Matter of Burke, 59 Cal. 6, 43 Am. Rep. 231; Mc- Pherson v. Village of Chebanse, 114 111. 40, 55 Am. Eep. 857; Com. v. Has, 122 Mass. 40; Com. v. Louisville, etc. R. Co., 3 Crim. L. Mag. 632; Vidal T. Girard's, Exrs., 2 How. (U. S.) 127. 425 §§ 2141-2143] SABBATH [Art. 193 § 2141. Sabbath breaking. A violation of the foregoing prohibition is Sabbath breaking. Derivation: Penal Code, § 260. Steinert v. Sobey (1897), 14 App. Div. 505, 44 N. Y. Supp. 146; Dunham V. Binghampton & L. B. B. Assn. (1904), 44 Misc. 114, 89, N. Y. Supp. 762- Brighton Athletic Club v. McAdoo (1905), 47 Misc. 432, 434, 94 N. Y. Supp. 391 ; see also anonymous, 12 Abb. N. C. 457. § 2142. Punishment for Sabbath breaking. Sabbath breaking is a misdemeanor, punishable by a fine not less than five dollars and not more than ten dollars, or by imprison- ment in a county jail not exceeding five days, or by both, but for a second or other offense, where the party shall have been previ- ously convicted, it shall be punishable by a fine not less than ten dollars and not more than twenty dollars, and by imprisonment in a county jail not less than five nor more than twenty days. Derivation: Penal Code, § 269, as amended L. 1887, oh. 535. Erbe v. Monteverde (1894), 13 Misc. 404, 35 N. Y. Supp. 102; Steinert v. Sobey (1897), 14 App. Div. 509, 44 N. Y. Supp. 146; People ex rel. Moffatt V. Zimmerman (1905), 48 Misc. 203, 204, 95 N. Y. Supp. 136; Matter of City of New York (1907), 57 Misc. 56, 108 N. Y. Supp. 197; People v. Schermer- horn (1908), 59 Misc. 149, 112 N. Y. Supp. 222. § 2143. Labor prohibited on Sunday. All labor on Sunday is prohibited, excepting the works of necessity and charity. In works of necessity or charity is in- cluded whatever is needful during the day for the good order, health or comfort of the community. Derivation: Penal Code, § 263, as amended L. 1883, ch. 358. Merrit v. Earle (1S64), 29 N. Y. 122, aff'g 31 Barb. 38; Eberle v. Mehr- bach (1874), 55 N. Y. 682; Solarz v. Manhattan Ry. Co. (1894), 8 Misc. 656, 29 N. Y. Supp. 1123, 31 Abb. N. C. 426; People v. Havnor (1896), 149 N. Y. 105, aff'g 1 App. Div. 459, 37 N. Y. Supp. 314; Tyrrell v. Mayor, etc. (18i)8), 34 App. Div. 334. 54 N. Y. Supp. 3''2; Pennle v. Pnolp (1004), 44 Misc. 119, 89 N. Y. Supp. 773; Hallen v. Thompson (1905), 48 Misc. 643. 96 N. Y. Supp. 142; People ex rel. Moffatt v. Zimmerman (1905), 48 Misc. 203, 204, 95 K. Y. Supp. 136; Matter of the City of New York (1(107). 57 Misc. 56, 108 X. Y. Supp. 197; People ex rel. Hammerstein v. O'Gorman (1908), 124 App. Div. 222,. 108 N. Y. Supp, 737; United Vaudeville Co. v. Zeller (1908). 5fi Misc. 17, 108 N. Y. Supp. 789; Moore v. Owen (1908), 58 Misc. 335, 109 N. Y. Supp. 585; see also Batsford v. Every, 44 Barb. 618; Bilordeaux v Litho- graphic Co., 16 Daly, 78, 9 N. Y. Supp. 507; Dinsmore v. Board of Police, 426 Art. 192] SABBATH [§§ 2144-2145 12 Abb. N. C. 437; Miller v. Eoessler, 4 E. D. Smith 234; Sun, etc., Assn. v Tribune, etc., Assn., 44 N. Y. Super. 136; Isaacs v. Beth, etc., Society, 1 Hilt. 469; Rex y. Brotherton, 2 Str. 702; State v. Railroad Co., 24 W. Va. 7S3. 49 Am. Kep. 290. § 2144. Persons observing another day as a Sabbath. It is a sufficient defense to a prosecution for work or labor on the first day of the week that the defendant uniformly keeps another day of the week as holy time, and does not labor on that day, and that the labor complained of was done in such man- ner as not to interrupt or disturb other persons in observing the first day of the week as holy time. Derivation: Penal Code, § 264, as amended L. 1885, ch. 519. People ex rel. Moffatt v. Zimmerman (1905), 48 Misc. 203, 204, 95 N. Y. Bupp. 136; see also Paulding v. Lane, 104 N. Y. Supp. 1051; Scales v. State, 47 Ark. 476, 58 Am. Rep. 768; Johns v. State, 78 Ind. 332, 41 Am. Rep. 577; City of Schreveport v. Levy, 26 La. Ann. 671, 21 Am. Rep. 553; Com. v. Has, 122 Mass. 40; Swann v. Swann, 21 Fed. 299; Maxson v. Annas, 1 Den. 204. § 2145. Public sports on Sunday. All shooting, hunting, playing, horse-racing, gaming or other public sports, exercises or shows, upon the first day of the week, and all noise unreasonably disturbing the peace of the day are prohibited. Notwithstanding the provisions of this section or of any general or local act, it shall be lawful to play baseball games on the first day of the week after two o'clock in the afternoon and to witness which an admission fee may or may not be charged, in a city, town or village, if an ordinance shall have been adopted by the common council or other legislative governing body of the city, town or village permitting such games on such day and after such hour. (Amended by L. 1919, ch. 260, in effect April 19, 1919.) Derivation: Penal Code, § 265, as amended L. 1883, ch. 358. People V. Dennin (1885), 35 Hun 327, 3 N. Y. Cr. 127; People v. Moses (1893), 140 N. Y. 211, aff'g 65 Hun 161, 20 N. Y. Supp. 9 ; Quinlan v. Conlin (1895), 13 Misc. 568, 34 N. Y. Supp. 952; Kenny v. Martin (1895), 11 Misc. 651, 32 N. Y. Supp. 1087; Matter of Eupp (1898), 33 App. Div. 468, 53 N. Y. Supp. 927; People ex rel. Bedell v. DeMott (1902), 38 Misc. 171, 172, 77 N. Y. Supp. 249, 16 Crim. Rep. 552; People v. Poole (1904), 44 Misc. 118, 89 N. Y. Supp. 773; People ex rel. Poole v. Hesterberg (1904), 43 Misc. 510, 89 N. Y. Supp. 498; Dunham v. Binghamton & L. B. B. Assn. (1904), 44 Misc. 114, 89 N. Y. Supp. 762; Brighton Athletic Club v. McAdoo (1905), 47 Miac. 432, 434, 94 N. Y. Supp. 391; Ontario Field Club v. McAdoo (1905), 56 Misc. 285, 107 N. Y. Supp. 295; Hallen v. Thompson (1905), 48 Misc. 643, 96 N. Y. Supp. 142; People ex rel. Hart v. Demerest (1906), 56 Misc. 288, 107 N. Y. Supp. 549; People v. Finn (1908), 57 Misc. 661, 110 N. Y. Supp. 22, 108 K. Y. Supp. 207; United Vaudeville Co. v. Zeller (1908), 58 Misc. 17, 108 N. Y. Supp. 789; Moore v. Owen (1908), 58 Misc. 335, 109 N. Y. Supp. 585; Eden Musee Co. v. Bingham (1908), 125 App. Div. 782, 110 F. Y. Supp. 210, 58 Misc. 645. 108 N. Y. Supp. 200; People v. Hemlet (1908), 127 App. Div. 357; Bee also Seongale v. Sweet (Mich.), 82 N. W. 1061; State v. O'Rourke, 35 Nebr. 614, 17 L. E. A. 830, 46 Alb. L. J. 531. 427 §§ 2146-2147] ■ SABBATH [Art. 1?2 § 2146. Trades, manufactures, and mecbanical employments prohibited on Sunday. All trades, manufactures, sgriculiural or mechanical employments upon the first day of the week are prohibited, except that when tha same are works of necessity they may be performed on that day in their usual and orderly manner, so as not to interfere with the repose and religious lib- erty Oi the community. Ecriiation: Penal Code, § 266, as amended L. 1883, ch. c58. People V. Lyons (1875), 5 Hun, €43; People ex rel. Hobach v. Sheriff (lf.95). 13 M;ec. 587, 35 N. Y. Supp. 19; Quinlan v. Conlin (1895), 13 Misc. 568, c4 N. Y. Supp. 952; People v. Havnor (1896), 149 N. Y. 795; Bools 30 (reprint ed.) 794, no..e aH'g App. Div. 459, 37 N. Y. Supp. 314; People v. Bul:s (ie07), 121 App. D.v. 226, 105 N. Y. Supp. €77; see, also, Landers v. Staten Island R. Go., 13 Abb. Pr. (N. S.) 855; Manhattan Iron Works Co. V. French, 12 Abb. N. C. 448; Ex parte Jentzsch, 112 Cal. 468, 32 L. R. A. 664; Eien v. People, 161 111. 296, 32 L. R. A. 659; Mueller v. State, 76 Ind. 310, iO Am. Rep. 245; Yonoski v. State, 79 Ind. 393, 41 Am. Rep. 614; Wilk'nson v. State, 59 Ind. 416, 26 Am. Rep. 84; Com. v. Louisville, etc., R. Co., 80 Ky. 291, 44 Am. Rep. 475; Philadelphia, etc., R. Co. v. Lehman, 56 Md. 209, 40 Am. Rep. 415; Com. v. Dextra, 143 Mass. 28; Hennersdorf v. State, 11 Crim. L. Mag. 179; Phelps v. Board of Police, 23 Daily Reg. No. 1, 5 Law Bull. 13; Petit v. Minnesota, 177 U. S. 164. § 2147. Public traffic on Sunday. All manner of public selling or offering for sale of any property upon SuEday is prohibited, except as follows: 1. Articles of food may be sold, served, supplied and delivered at any time before ten o'clock in the morn.ng; 2. Meals may be sold to be eaten on the premises where sold at any time of the day; 3. Caterers may serve meals to their patrons at any time of the day; 4. Prepared tobacco, milk, eggs, ice, soda-water, fruit, flowers, confec- tionery, souvenirs, newspapers, gasoline, oil, tires, drugs, medicines and surgi- cal instruments, may be sold in places other than a room where spirituous or malt liquors or wines are kept or offered for sale and may be delivered at any; time of the day. 5. Delicatessen dealers may sell, supply, serve and deliver cooked and pre- pared foods, between the hours of four o'clock in the afternoon and half past seven o'clock in the evening, in addition to the time provided for in sub- division one hereof. Tlie provisions of this section, however, shall not be construed to allow or peimit the public sale or exposing for sale or doiivery of uncoolced flesh foods, or meats, fresh or salt, at any hour or time of the day. jJelicatessen dealers shall not be considered as caterers within subdivision tliree hereof. (Amended fay L. 1913, ch. 346; L. 1915, ch. 278; L. 1921, ch. 299, in effect April 21, 1921.) Derivation: Penal Code, § 267, as amended L. 1883, ch. 358; L. 1896, ch. 648; L. 1901, ch. 392. O'Shea v. Kohn (1884), 33 Hun, 115, aff'd 97 N. Y. 649; Quinlan v. Conlin (1835), 13 Misc. 568, 34 N. Y. Supp. 952; People "ex reh Woodin v. Hacan (1901), 36 Misc. 349, 73 N. Y. Supp. 564; People ex rel. Moffatt v. Zimmer- 428 Art 192] SABBATH [§§ 2148-2150 man (1905), 48 Misc. 203, 204, 95 N. Y. Supp. 136; see also Batsford v. Every, 44 Barb. 618; State v. Ohmer, 11 Crim. L. Mag. 378, citing 12 Abb. N. C. 458. § 2148. Serving process on Sunday. All service of legal process, of any kind whatever, on the first day of the week is prohibited, except in cases of breach of the peace or apprehended breach of the peace or when sued out for the apprehension of a person charged with crime, or except where Buch service is specially authorized by statute. Service of any process upon said day except as herein permitted is absolutely void for any and every purpose whatsoever. Deriiration: I'enal Code, § 208, as amended L. 1802, cli. 622. Hastings v. Farmer (1850), 4 N. Y. 296; Scott Shoe Co. v. Dancel (1901), 63 App Div. 172, 71 N. Y. Supp. 263; see also Van Vechten v. Paddock, 12 Johns. 178; Butler v. Kelsey, 15 Johns. 177. § 2149. Forfeiture of commodities exposed for sale on Sun- day. In addition to the penalty imposed by section twenty-one hun- dred and forty-two, all property and commodities exposed for eale on the first day of the week in violation of the provisions of this article shall be forfeited. Upon conviction of the offender by a justice of the peace of a county, or by any police justice or magistrate, such officer shall issue a warrant for the seizure of the forfeited articles, which, Vifhen seized, shall he sold on one day's notice, and the proceeds paid to the overseers of the poor, for the use of the poor of the town or city. Derivation: Penal Code, § 270, as amended L. 1883, ch. 358. People ex rel. Mofl'att v. Zimmerman (1905), 48 Misc. 203, 204, 95 N. Y. Supp. 130. § 2150. Maliciously serving process on Saturday on person who keeps Saturday as holy time. Whoever maliciously procures any process in a civil action to be served on Saturday, upon any person who keeps Saturday as holy time, and does not labor on that day, or serves upon him any process returnable on that day, or maliciously procures any civil action to which such person is a party to be adjourned to that day for trial, is guilty of a misdemeanor. Derivation: Penal Code, § 271. Martin v. Goldstein (1897), 20 App. Div. 203, 40 N. Y. Supp. 961; see also Maxson v. Annas, 1 Den. 204. 429 §§ 2151-2152] SABBATH [Art. 192 § 2151. Processions and parades on Sunday. All processions and parades on Sunday in any city, excepting only funeral processions for the actual burial of the dead, and processions to and from a place of worship in connection with a religious service there celebrated, are forbidden ; and in such excepted cases there shall be no music, fireworks, discharge of cannon or firearms, or other disturbing noise. At a military funeral, or at the funeral of a United States soldier, sailor or marine, or of a national guardsman, or of a deceased member of an association of veteran soldiers, sailors or niaiires, or of a dis- banded militia regiment, or of a secret fraternal society, or of an asso- ciation of employees of the uatiouai, staie, or municipal governments, music may be played while escorting tlie body ; also in patriotic mili- tary processsions on Sunday previous to JJecoration day, known as memorial Simday, to cemeteries or other places where memorial services are held, and also by organizations of the national guard or naval militia or of an association of employees of the national, state, or municipal governments, attending religious service on Sunday; but in no case within one block of a place of worship where service is then being celebrated. A person wilfully violating any provision of this section is punishable by a fine not exceeding twenty dollars or impris- onment not exceeding ten days, or by both. (Amended by L. 1911. ch. 147; L. 1913, ch. 16, and L. 1914, ch. 328, in effect April 14, 1914.) DeriTation: Penal Code, § 276, as amended L.. 1883, ch. 302, 358; L. 1895, eh. 778. People V. Miles (1908), 123 App. Div. 871, IDS N. Y. Supp. 510. § 2152. Theatrical and other performances on Sunday. The performance of any tragedy, comedy, opera, ballet, farce, negro minstrelsy, negro or other dancing, wrestling, boxing with or without gloves, sparring contest, trial of strength, or any part or parts therein, or any circus, esquestrian or dramatic perform- ance or exercise, or any performance or exercise of jugglars, acro- bats, club performances or rope dancers on the first day of the week is forbidden; and every person aiding in such exhibition, performance or exercise by advertisement, posting or otherwise, and every owner or lessee of any garden, building or other room, place or structure, who leases or lets the same for the purpose of any such exhibition, performance or exercise, or who assents to the use of the same, for any such purpose, if it be so used, is guilty of a misdemeanor. In addition to the punishment therefor provided by statute, every person violating this section is subject to a penalty of five hundred dollars, which penalty " The Society for the Reformation of Juvenile Delinquents " in the city of New York, for the use of that society, and the overseers of the poor in any other city or town, for the use of the poor, are authorized, in the name of the people of this state, to recover. 430 Art. 192] SABBATH [§§ 2153-2154 Besides this penalty, every such exhibition, performance or ex- ercise, of itself, annuls any license which may have been pre- viously obtained by the manager, superintendent, agent, owner or lessee, using or letting such building, garden, room, place or other structure, or consenting to such exhibition, performance or exercise. Derivation: Penal Code, § 277, as amended L. 1883, eh. 358. Neuendorff v. Duryea (1877), 69 N. Y. 557, 25 Am. Kep. 235, affV 6 Daly 276; Matter of Alien (ISOl), 34 Misc. 698, 70 N. Y. Supp. 1017, 15 N. Y Cr. 453; Hallen v. Thompson (1905), 48 Misc. 643, 96 N. Y. Supp. 142; Mat- ter of the City of N. Y. (1907), 57 Misc. 52, 108 N. Y. Supp. 197; People €X rel. Hammerstein v. O'Gorman (1908), 124 App. Div. 225, 104 N. Y. Supp 737; People v. Helmet (1908), 127 App. Div. 358; United Vaudeville Co. v Zeller (1908), 58 M;sc. 18, 108 N. Y. Supp. 789, 108 N. Y. Supp. 207; Eden Musee Co. v. Bingham (1908), 58 Misc. 648, 108 N. Y. SHipp. 200; Moore v. Owen (1908), 58 Misc. 333, 109 N. Y. Supp. 585; see also People v. Hoym, 20 How. Pr. 76. f J > § 2153. Barbering on Sunday. Any person who carries on or engages in the business of shav- ing, hair cutting or other work of a barber on the first day of the week, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not more than five dollars; and upon a second conviction for a like offense shall be fined not less than ten dollars and not more than twenty-five dollars, or be im- prisoned in the county jail for a period of not less than ten days, nor more than twenty-five days, or be punishable by both such fine and such imprisonment at the discretion of the court or magis- trate ; provided, that in the village of Saratoga Springs, from the fifteenth day of June to the fifteenth day of September, inclusive, and in the city of If ew York throughout the year, barber shops or other places where a barber is engaged in shaving, hair cutting or other work of a barber, may be kept open, and the work of a barber may be performed therein until one o'clock of the after- noon of the first day of the week. Derivation: L. 1895, oh. 823, as amended L. 1907, ch. 297. § 2154. Motion picture exhibitions on the first day of the week. If in any city, town or village motion pictures are now exhibited on the first day of the week, they may continue to be so exhibited during such time after two o'clock in the afternoon as the exhibi- tion of motion pictures shall not have been prohibited by an ordi- nance hereafter adopted by the common council or other legis- lative body of such city, town or village, the adoption, repeal or re-adoption of which is hereby authorized. If in any city, town or village motion pictures are not now exhibited on the first day of the week, they shall not be so exhibited except during such time after two o'clock in the afternoon as shall be permitted by an ordinance hereafter adopted by the common council or other legislative body of such city, town or village, the adoption, repeal or re-adoption of which is hereby authorized. (Added by L. 1919, ch. 257, in effect April 19, 1919. . 431 § 2170] SALT WOKKS [Art. 194 ABTIGIiE 194. SALT WORKS. Section 2170. Injuries to the Onondaga salt works. § 2170. Injuries to the Onondaga salt works. A person who wilfully burns, destroys, or injures any salt man- ufactory connected with the Onondaga salt springs, or any build- ing appurtenant to such manufactory or any part of such manufac- tory, or any of the buildings, reservoirs, pumps, conductors or water conduits, belonging to this state, used in the raising of salt water for the manufacture of salt, without authority of law, is punishable by imprisonment in a state prison not exceeding five years. Derivation: Penal Code, § 483. 4'ii Art. 195] SEDUCTION. [§ 2176 ABTICLi: 195. (Added by L. 1909, Ch. 524. In effect May 27, 1909.) SEDXrCTION. Section 2175. Seduction under promise of marriage. 2176. Bar to prosecution. 2177. No conviction on unsupported testimony. § 2175. Seduction under promise or pretense to marry. A person who, under promise of marriage, or by means of a fratidii- lent representation to her that he is married to her, seduces and has sexual intercovirse with an unmarried female of previous chaste char- acter, is punishable by imprisonment for not more than five years, oi by a fine of not more than one thousand dollars or both. (Added by L. 1909, ch. 524. Amended by L. 1916, ch. 196, in effect April 12. 1916.) DexiT-ation: Penal Code, § 284. Kenyon v. People (18C3), 20 N. Y. 203, 84 Am. Dee. 177; Boyce v. People (1874), 55 N. Y. 044; Kniifman v. People (1877), II Hiin, 82; People v. Hustis (1884), 32 Hun, 58, 2 N. Y. Cr. 443; People v. Eclvert (1S84), 2 N. Y. Cr. 470; Peopie v. Jolinson (1887), 104 N. Y. 213, 5 N. Y. Cr. 218, air'g 4 N. Y. Cr. Rep. 591; Poopla v. Wood (1892), 131 N. Y. 018, People V. Gumaer (1894), 80 Hun, 78, 30 N. Y. Supp. 17; People v. Duryea (1894), 81 Hun, 390, 30 N. Y. Supp. 877; People v. Van Alstyne (1894), 144 N. Y. 300, rev'g 78 Hun, 5U9, 29 N. Y. Supp. 542; People v. Gumaer (1896), 4 App. Div. 412, 39 N. Y. Supp. 320; People v. N?l39n (1897), 153 N. Y. 90, 12 N. Y. Cr. 303, CO Am. St. Rep. 592, rev'g 91 Hun, 035, 36 N. Y. Supp. 1130; see also People v. Ryan (1901), 03 App. Div. 429, 71 N. Y. Supp. .527; Disler v. McCauley (1901), 06 App. Div. 42, 44, 73 N. Y. Supp. 270; see also People v. Alger, 1 Park. 333; Conkey v. People, 5 Park. 431; Carpenter v. People, 8 Barh. 603; Crozier v. People, 1 Park. 453; Cook v. People, 2. Th. & C. 407; People v. Kane, 14 Alib. 10; People v. McArdle, 5 Park. 180; Reynohls v. People, 41 How. Pr. 179; Safford v. People, 1 Park. 474; Polk v. State, 40 Ark. 482, 48 Am. Rep. 17; People V. Roderigas, 49 Cal. 9; People v. Hnugli, 120 Cal. 538, 05 Am. St. Rep. 201; Wood v. State, 48 Ga. 192; Callahan v. State, 03 Ind. 198; 30 Am. Rep. 211; State v. Prizer, 49 Iowa, 531, 31 Am. Rep. 153; State v. Huglies, 100 Iowa, 129; State v. Higdom, 32 Iowa, 262; People v. Gould, 70 Midi. 240, 14 Am. St. Rep. 493; People v. Squires, 49 Midi. 487; People v. De Fore, 64 Mich. 693, 8 Am. St; Rep. 868; Patterson v. Hayden, 17 Greg. 238, U Am. St. Rep. 822; State v. Adams, 25 Greg. 172, 22 h. R. A. 840; Zahriskie V. State, 43 N. J. L. 640, 39 Am. Rep. 010; Oliver v. Com., 101 Pa. St. 215, 47 Am. Rep. 704; Croghan v. Slate, 22 Wis. 444. t8 2176-2177] SEDUCTION" [Art. 195 § 2176. Bar to prosecution. The subsequent intermarriage of the parties, or the lapse of two years after the commission of the offense before the finding of an indictment, is a bar to a prosecution for a violation of this section. Derivation: Penal Code, § 285. Added by L. 1909, Ch. 524. In effect, May 27, 1909. § 2177. No conviction on unsupported testimony. No conviction can be had for an offense specified in the last Bection, upon the testimony of the female seduced, unsupported by other evidence. Derivation: Penal Code, § 286. Added by L. 1909, Ch. 524. In effect, May 27, 1909. Kenyon v. People (1863), 26 N. Y. 203; Boyce v. People (1874), 55 N. Y. 644; Armstrong v. People (1877), 70 N. Y. 38; People v. Kearney (1888), 110 N. Y. 188, 7 N. Y. Or. 114, rev'g 47 Hun, 129, 7 N. Y. Cr. 106; People v. Girmaer (1894), 80 Hun, 78, 30 N. Y. Supp. 17; People v. Orr (1895), 92 Hun, 199, 36 N. Y. Supp. 398; see also Crandall v. People, 2 Lans. 309; People v. Hine, 8 N. Y. Leg. Obs. 139; State v. Araah, 55 lows, 850; State v. Dietriek, 51 Iowa, 467; People v. Jensen (Mich.), 33 N. W. 811; State V. Brassfield, 81 Mo. 151, 51 Am. Rep. 234; State v. Patterso". 88 Mo. 88, 57 Am. Rep. 374; Rice v. Com., 100 Pa. St. 28; Cook v. People, 2 Th. & C. 404; State v. Hill, 4 S. W. 121; State v. Brinkhaus, 7 Crim. i,. Mig. 343. 432b Art. 196] SENTENCE ,jj5 2180-2181 ARTICLE 196. SENTENCE. Section 2180. Place to be spocified in sentence; removal of convicts. 2181. Sentence to imprisonment for less t!ian one year. 2182. Sentence to imprisonment for one year. 2183. Sentence to imprisonment for more tlian one year. 2184. Sentence to house of refuge, state industrial school, and New York state training school for girls. 2185. Sentence of males between sixteen and thirty years of age. 2186. Sentence of minors to imprisonment. 2187. Sentence of female convicts to imprisonment. 2188. Duty of court to sentence; suspending sentence. 2189. Indeterminate sentences to state prisons. 2190. Sentence to imprisonment on two or more convictions. 2191. Sentence when punishment prescribed is imprisonment for not less than a specitied time. 2192. Sentence where punishment prescribed is imprisonment for not more than a specified time. 2193. Calculating term of imprisonment. 2194. Sentence of minor under sixteen years of age. 2195. Imprisonment when sentenced to a reformatory. 2196. Sentence to penitentiary under the provisions of f 320 of prison law, of person not punishable by imprisonment ir state prison. 2197. Repealed. 2198. Sentence of convicts to state prisons. § 2180. Place to be specified in sentence ; removal of convicts. The place of the imprisonment must be speciiied in the judg- ment and sentence of the court. But convicts may be removed from one place of confinement to another, in a case, and by the authority, designated by statute. Derivation: Penal Code, § 705. As to detention of n^ental defectives, see Mental Deficiency Law (L. 1919, ch. 633). „. Weed V. People (1865), 31 N. Y. 465; see also Matter of Waterman, 33 Fed. 29. § 2181. Sentence to imprisonment for less than one year. Where a person is convicted of a crime, for which the punish- ment inflicted is imprisonment for a term less than one year, the imprisonment must be inflicted by confinement in the county jail, or place of confinement designated by law to be used as the jail of the county, except when otherwise specially prescribed by statute. DcTiTation: Penal Code, § 702. People V. Parr (1886), 4 N. Y. Cr. 546; People v. Hughes (1893), 137 N. Y. 33, aff'g 46 N. Y. S. R. 413. 435? §§ 2182-2184] SEATTENCE [Art. 196 § 2182. Sentence to imprisonment for one year. Wliere a person is convicted, of a crime, for which the punish- ment inflicted is imprisonment for a term of one year, he may be sentenced to, and. the imprisonment may be inflicted by, con- finement eitiher in a county jail, or in a penitentiary or state prison. No person shall be sientenoed to imprisonment in a state prison for less than one year. The expense of maintaining per- sons convicted of a felony who shall be sentenced to imprisonment in a penitentiary shall be paid by the state at the rate of sixty cents per day per capita, (Amended by L. 1918, eh. 269, in effect Sept. 1, 1918.) Derivation: Penal Code, § 703. People ex rel. DeVoe v. Kelly (1884), 97 N. Y. 212, 32 Hijn 540, modf'g 32 Hun 536; People v. Parr (1886), 4 N. Y. Cr. 546; Mairs v. Bait. & Ohio Eailroad Co. ( 1003) , 175 N. Y. 4C9, aff'g 73 App. Div. 265, 76 N. Y. Supp. 838. § 2183. Sentence to imprisonment for more than one year. Where a person is convicted of a crime, for which the punish- ment inflicted is imprisonment for a term exceeding one year, or is sentenced to imprisonment for such a term, the imprisonment must be inflicted by confinement at hard labor in a state prison. But this and sections twenty-one hundred and eighty-one ard twenty- one hundred and eighty-two shall not apply to a case where special provisicn is made by statute as to the punishment for any particu- lar offense or class of offenses or offenders, nor to th© cases specified in sections twenty-one hundred and eighty-four, twenty-one hun- dred and eighty-five, twenty-one hundred and eighty-six and twenty-one hundred and eighty-seven. Derivation: Penal Code, § 704. People V. Hughes (1S93), 137 N. Y. 29, aff'g 46 N. Y. S. R. 413; People ex rel. Gately v. Sage (1897), 13 App. Div. 136, 43 N. Y. Supp. 372, rev'g 17 Misc. 713, 41 N. Y. Supp. 531; People ex rel. CosgrilT v. Craig (1908), CO Misc. 531; see also People v. Dewey, 11 N. Y. Supp. 603. § 2184. Sentence to house of refuge, state industrial school, and New York state training school for girls. Where a male person under the age of twelve years is con- victed of a crime amoinitiug to felony, or where a male person of twelve years and under the age of sixteen years is convicted of a crime, the trial court may, instead of sentencing him to impris- onment in a state prison or in a penitentiary, direct him to be confined in a house of refuge under the provsions of the statute relating thereto. Where the conviction is had and the sentence 434 Art. 196] SEiNTENCE [§§ 2185-2186 is inflicted in the city of New York, the place of confinement must be a house of refuge established by the managers of the society for the reformation of juvenile delinquents in the city of New York; where the conviction is had and the sentence inflicted outside of said city, the place of confinement may be in the state industrial school. Wliere a male' person of the age of sixteen years and under the age of eighteen years has been convicted of juvenile delin- quency or of a misdemeanor, the trial court may, instead of sentencing him to imprisonment in a state prison or in a penitentiary, direct him to be con- fined in a house of refuge established by the managers of the society for the reformation of juvenile delinquents in the city of New York ; under the pro- visions of the statute relating thereto. Where a female person not over the age of twelve years is convicted of a crime amounting to felony, or where a female person of the age of twelve years and not over the age of sixteen years is convicted of a crime, the trial court may, instead of sentencing her to imprisonment in a state prison or in a penitentiary, direct her to be con- fined in the New York state training school for girls, under the provisions of the statute relating thereto. But nothing in this section shall afi'ect any of the provisions contained in section twenty-one hundred and ninety-four. (Amended by L. 1913, ch. 607; L. 1919, eh. 416, in effect May 5, 1919.) Derivation: Penal Code, § 701, as amended L. 1896, ch. 554; L. 190*, oh. 388. People ex rel. Zeese v. Hasten (1894),. 79 Hun, 580, 29 N. Y. Supp. 891; see also People v. Degnen, 6 Abb. Pr. (N. S.) 87, 54 Barb. 105; Matter of Lewinski, 66 How. Pr. 175; Park v. People, 1 Lans. 263; Matter of Eeilly, 18 Week. Dig. 515. § 2185. Sentence of males between sixteen and thirty years of age. A male between the ages of sixteen and thirty, convicted of a. feJony, who has not theretofore been convicted of a crime, pun- ishable by imprisonment in a state prison, or a male between such ages convicted of a misdemeanor who has formerly been convicted of a misdemeanor may, in the discretion of the trial court be sentenced to imprisonment in the New York state reformatory at Elmira, to be there confined under the provisions of law relating to that reformatory. The commitment of a misdemeanant pur- suant to this section shall certify that defendant has been previ- ously convicted of a misdemeanor. (Amended by L. 1920, eh. 848, in effect May 19, 1920.) Derivation: Pena:i Code, § 700, as amended L. 1888, ch. 145. People ex rel. Duntz v. Coon (1893), 67 Hun, 533, 22 N. Y. Supp. 865; People V. Madden (1907), 120 App. Div. 338; People ex rel. Bettram v. Flynn (1907), 55 Misc. 22, 105 N. Y. Supp. 551; Matter of Jacobs (1908), 57 Misc. 655, 109 N. Y. Supp. 1068; see also Matter of Gilmore, N. Y. U J. Augusu 36, 1893; Matter of Weber, Daily Eeg. Aug. 17, 1868. § 2186. Sentence of minors to imprisonment. Where a male person between the ages of sixteen aud twenty- one years is convicted of a felony, or where the term of imprison- ment of a male convict for a felony is fixed by the trial court at 435 § 2187] SENTENCE [Art. 196 one year or lees, the court may direct the convict to be imprisoned in a county penitentiary, instead of a state prison, or in the county jail located in the county where sentence is imposed. A child of more than seven and less than sixteen years of age, who shall commit any act or omission which, if committed by an adult, would be a crime not punishable by death or life imprisonment, shall not be deemed guilty of any crime, but of juvenile deli- quency only, but any other person concerned therein, whether as principal or accessory, who otherwise would be punishable as a principal or accessory shall be punishable as a principal or acces- sory in the same manner as if such child were over sixteen years of age at the time the crime was committed. Any child charged with any act or omission which may render him guilty of juve- nile deliquency shall be dealt with in the same manner as now is or may hereafter be provided in the case of adults charged with the same act or omission except as specially provided heretofore in the case of children tmder the age of sixteen years. Derlvatlont Penal Code, § 699, as amended L. 1892, oh. 496; L. 1894, ch. 726; L. 1898, ch. 553; L. 1902, ch. 103; L. 1905, eh. 655; L. 1907, ch. 417. Amended by L. 1909, Ch. 478. In effect Sept. 1, 1909. § 2187. Sentence of female convicts to imprisonment. Any woman over the age of sixteen years, who shall be con- victed of a felony in any of the courts of this state, shall, when the sentence imposed is one year or more, be sentenced to impris- onment in the state prison for women at Auburn. When the sentence imposed is less than one year, she may be committed to the county jail of the county where convicted, or to a penitentiary, or to the state prison for women at Auburn. A woman between the ages of fifteen and thirty, convicted of a felony, who has not theretofore been convicted of a crime punishable by imprisonment in a state prison, may in the discretion of the trial court be sen- tenced to a house of refuse or reformatory for women, to be there confined under the provisions of law relating to such house of refuge or reformatory. Derivation: Penal Code, § 698, as amended L. 1898, ch. 374; L. 1900, ch. 114. People ex rel. Olcott y. House of Refuge (1897), 22 App. Div. 864, 47 N. Y. Supp. 767. 436 Art. 196] SENTENCE [§ 2188 § 2188. Duty of court to sentence; suspending sentence; suspending execution of judgment; probation. The several sections of this chapter -which declare certain crimes to be punishable as therein mentioned devolve a duty upon the court or magistrate authorized to pass sentence to determine and impose the punishment prescribed; but a court or magistrate au- thorized to impose sentence upon, conviction of any crime not punishable by death or life imprisonment, or in any case of juve- nile delinquency, or in any other proceeding of a criminal nature, whether the defendant has previously been convicted of a crime or not, may suspend sentence or impose sentence and suspend the execution of the whole or a part of the judgment and may in either case place the defendant on probation in accordance with the pro- visions of section eleven-a of the code of criminal procedure. No provision of this chapter or of the code of criminal procedure or of any general statute shall be construed to prevent the court or magistrate authorized to impose sentence from exercising discre- tion to suspend sentence or suspend the execution of the whole or a part of the judgment or to place on probation as hereinabove pro- vided. If sentence shall have been suspended or, if sentence shall have been imposed and execution of the whole or a part of the judgment shall have been suspended, at any time thereafter within the longest period for which a defendant might have been com- mitted in the first instance or, if the defendant is on probation and the period of probation exceeds the period for which the defendant might have been sentenced, at any time while the defendant remains on probation, the court or magistrate having jurisdiction may issue process for the rearrest of the defendant, and when such defendant is arraigned may, if sentence shall have been suspended, impose any sentence or make any commitment which might have been imposed or made at the time of conviction or may, if sentence shall have been imposed and execution of the whole or a part of the judgment suspended, revoke the order suspending execution of judgment and order executed the judgment or the part thereof the execution of which shall have been suspended or may modify the judgment so as to provide for the imposition of any punish- ment which might have been imposed at the time of conviction. Provided, however, that the imprisonment directed by the judg- ment, shall not be suspended or interrupted after such imprison- ment shall have commenced. (Amended by L. 1918, ch. 457 ; L. 1920, ch. 568, in effect May 5, 1920.) L 1918 ch 457, § 2. If heretofore the execution of the whole or a part of a judirm'ent entered pursuant to statute shall have been suspended such suspension shall be regarded In all respects as if the sentence imposed upon which judRment was entered and execution thereof suspended had been suspended and not 'nCTlvatlon: Penal Code § 12, as amended L. 1893. oh. 279; L. 1905, ch. 655. Veov\e V. Harrington (1884), 15 Ahb. N C. 161 3 N Y. f^ "J T How. Pr (N S) 37; People ex rel. Forsyth v. Court of Sessions (1894), 141 N. I. 437 §§ 2189,2190] SENTENCE [Art. 196 293, 23 L. E. A. 856, rev'g 66 Hun 550; People ex rel. Dunnigan v. Webster <1895), 86 Hutt 73, 14 Misc. 617, 36 N. Y. Supp. 745, 11 N. T. Cr. 484; see also Miller's case, 5 Cow. 370; People v. Morrisette, 20 How. Pr. 118; Browa V. Rice, 57 Me. 55, 2 Am. Kep. 11; People v. Meserv«y, 76 Mich. 223; In re Webb, 89 Wis. 354, 27 L. E. A. 356 ; People v. Aroher, 18 Chi. I^g. News, 245 ; People V. Mueller, 4 Crim. L. Mag. 725. § 2189. Indeterminate sentences to state prisons. A person never before convicted of a crime punishable by im- prisonment in a state prison, who is convicted in any court in this state of a felony other than murder first or second degree, and sentenced to a state prison, shall be sentenced thereto under an indeterminate sentence, the minimum of which shall not be less than one year, or in case a minimum is fixed by law, not less than such minimum; otherwise, the minimum of such sentence shall not be more than one-half the longest period and the maxi- mum shall not be more than the longest period fixed by law for which the crime is punishable of which the offender is convicted. (Amended by L. 1919, ch. 411, in effect Sept. 1, 1919.) DcTivation: Penal Code, § 687a, added L. 1901, ch. 425, and amended L. 1902, eh. 282; L. 1906, ch. 36; L. 1907, oh. 737. Amended by L. 1909, ch. 282. In effect May 8, 1909. People V. Hochstim (1902), 76 App. Div. 25, 26, 78 N. Y. Supp. 638, 986; People ex rel. Clark v. Warden of Sing Sing Prison (1902), 39 Misc. 113, 78 N. Y. Supp. 907, 119 Crim. Eep. 420; People v. Adams (1903), 176 N. Y. 362, 19 N. Y. Cr. 425, 17 N. Y. Cr. 558, aff'd Sub. Nom. Adams v. New York, 102 U. S. 585; People ex rel. Adams v. Johnson (1904), 44 Misc. 551, 90 N. Y. Supp. 134, 19 N. Y. Cr. 435; People ex: rel. Schall v. Deyo (1905), 181 N. Y. 425, 429, 19 N. Y. Cr. 442, rev'g 103 App. Div. 126, 127, 128, 93 N. Y. Supp. 80; People ex rel. Ammon v. Johnson (1906), 114 App. Div. 877, 878, 100 1st. Y. Supp. 256, 20 N. Y. Cr. 377; People v. Madden (1907), 120 App. Div. 343; People ex rel. Dawkins v. Frost (1908), 129 App. Div. 499; see also Murphy v. Com., 172 Mass. 264, 43 L. E. A. 154; Dryer v. State, 187 U. S. 71. § 2190. Sentence to imprisonment on two or more convic- tions. Where a person is convicted of two or more offenses, before senlerce has been pronounced upon him for either offense, the imprisonment, to which he is sentenced upon the second or other subsequent conviction, must commence at the termination of the first or other prior term or terms of imprisonment, to which he is sentenced. Where a person, under sentence for a felony, afterward com- mits any other felony, and is thereof convicted and sentenced to another term of imprisonment, the latter term shall not begin until the expiration of all the terms of imprisonment, to which he is already sentenced. Derivation: Penal Code, §§ 694, 695. People ex rel. Tweed v. Liscomb (1875), 60 N. Y. 560, 19 Am. Eep. 211, 438 Art. 196] SENTENCE [§§ 2191-2193 rev'g 3 Hun, 760, 6 Th. & O. 658; Thomas v. People (1876), 67 N. Y. 218; People ex rel. Dawkins v. Frost (1908), 58 Misc. 621, 109 N. Y. Supp. 1121; People v. Fabian (1908), 126 App. Div. 95; see also Haggerty v. People, 6 Lans. 347, 53 N". Y. 642; Eldridge v. State, 37 Ohio St. 191; Castro V. Queen, 6 App. Cas. 229, 34 Eng. Rep. 399. § 2191. Sentence when punishment prescribed is imprison- ment for not less than a specified time. When a crime is declared by statute to l>e punishable by impris- onment for not less than a specified number of years, and no limit of the duration of the imprisonment is declared, the court author- ized to pronounce judgment upon con-viction may, in its discretion, sentence the offender to imprisonment during his natural life, or for any number of years not less than the amount prescribed. DeriTation: Penal Code, § 696, in part, as amended L. 1892, ch. 662. For remainder of section, see § 2192, post. § 2192. Sentence where punishment prescribed is imprison- ment for not more than a specified time. When a crime is declared by any of the provisions of this chap- ter to be punishable by imprisonment for not more than a specified number of years, the court authorized to pronounce judgment upon conviction may, in its discretion, sentence the offender to imprisonment for any time less than that prescribed by the pro- visions of this chapter. DeriTation: Penal Code, S 6S6, in part, as amended L. 1892, eh. (MS. For remainder of section, see J 2191, ante. § 2193. Calculating term of imprisonment. Any time spent by a person convicted of a crime in a prison or jail prior to his conviction and before sentence has been pro- nounced upon him, shall become and be calculated as a part of the term of the sentence imposed upon him, whether such sentence is an indeterminate one or for a definite period of time; and such time shall, in addition to the time allowed for good conduct and earned as compensation, be deducted from the term of the sentence so imposed, under the provisions of article nine of the prison law. Where such person is subject to parole by the board of parole for state prisons, the time spent by him in any prison or jail before 439 § 2194] SENTENCE [Art. 196 his conviction and the imposition of sentence, shall likewise be calculated as a part of the term, the sentence imposed upon him, or be deducted from the term of such sentence in addition to other allowances of time provided for by article nine of the prison law for the purpose of such parole. At the time of commitment as provided in section four hundred and eighty-seven of the code of criminal procedure, it shall be the duty of the judge to indorse upon the commitment papers the length of time spent by the person convicted in a prison or jail prior to his conviction and before sentence which is to be calculated as part of the term of sentence imposed upon such person. (Amended by L. 1919, ch. 410, in effect May 5, 1919.) Derivation: Penal Code, § 697, as amended L. 1886, ch. 68; L. 1888, «h. 492. People V. Trimble (1891), 60 Hun, 364, 15 N. Y. Supp. 60; People ex rel. Adams v. Johnson (1904), 44 Misc. 550, 90 N. Y. Supp. 134, 19 N. Y. Cr. 436; People ex rel. Schali v. Deyo (1905), 103 App. Diy. 126, 127, 128, 93 N. Y. Supp. 80; People ex rel. Anunon v. Johnson (1906), 114 App. Div. 879, 100 N. Y. Supp. 266, 20 K. Y. Cr. 377; see also People v. Davis, 19 N. Y. Supp. 783. § 2194. Sentence of minor under sixteen years of age. When a person under the age of sixteen is convicted of a crime, he may, in the discretion of the court, instead of being sentenced to fine or imprisonment, be placed in charge of any suitable person or institution willing to receive him, and be there- after, until majority or for a shorter term, subjected to such dis- cipline and control of the person or institution receivino- him as a parent or guardian may lawfully exercise over a minor. A child under sixteen years of age committed for misdemranor, under any provision of this chapter, must be committed to some reformatory, charitable or other institution authorized by law to receive and take charge of minors. And when any such child is committed to an institution it shall, when practicable, be 440 Art. 196] SENTENCE [§§ 2195-2196 committed to an institution governed by persons of the same re- ligious faith as the parents of such child. DeriTatioa: Penal Code, § 713, as amended L. 1884, ch. 46. People ex rel. Zeese v. Hasten (1894), 79 Hun, 580, 29 N. Y. Supp. 891; People ex rel. Cronin v. Carpenter (1898), 25 Misc. 341, 55 N. Y. Supp. 521; People ex rel. Mt. Magdalen's School v. Dickson (1890), 123 N. Y. 639, aff'g 57 Hun, 312, 10 N. Y. Supp. 604; People ex rel. Sanfilippo v. New York Pro- tectory (1902), 38 Misc. 660, 17 N. Y. Cr. 113, 78 N. Y. Supp. 232; Corbett V. St. Vincent's Industrial School (1903), 79 App. Div. 334, 341, 79 N. Y. Supp. 369. § 2195. Imprisonment when sentenced to a reformatory. When a person shall be sentenced to imprisonment in a re- formatory as prescribed in section three hundred and seven of the prison lav^, the court imposing such sentence shall not fix or limit the duration thereof. DerlTstlon: L. 1887, ch. 711, S 9, in part, rewritten. § 2196. Sentence to penitentiary under the provisions of sec- tion three hundred and twenty of the prison law, or to a county jail, of person i^ot punishable by imprisonment in state prison. A courtj police justice, justice of the peace, or other magistrate, by whom any person may be sentenced, in the several counties of this state, for any term not less than sixty days, for any crime or misdemeanor not punishable by imprisonment in the state prison, during the continuance of the agreement mentioned in section three hundred and twenty of the prison law, may sentence such person to imprisonment either in such penitentiary or the county jail, there to be received, kept and employed in the manner pre- scribed by law, and the rules and discipline of such penitentiary or jail; and it shall be the duty of such court, justice or magistrate, by a warrant, duly signed by the presiding judge, or justice or clerk of such court, or by such justice or other magistrate so giving such sentence, to cause such person so sentenced, to be forthwith and by the most direct route conveyed by some proper officer to such penitentiary or jail. It shall be the duty of the sheriffs, deputy sheriffs, constables or policemen in and for the several counties of this state, to whom any warrant of commitment for that purpose may be directed by any court or magistrate in this section mentioned, to convey forthwith such person so sentenced, to such penitentiary or jail, and there deliver such person to the keeper of such penitentiary or jail. In case of sentence to the 441 §§ 2197-2198] SENTENCE [Art. 19C penitentiary it shall be the duty of such keeper to receive such persons so sentenced, during the continuance of said agreement, authorized hy said section three hundred and twenty of the prison law, to be there safely kept and employed, according to the rules and discipline of such penitentiary. The officers thus conveying such convicts so sentenced to the penitentiary, shall be paid such fees and expenses therefor, as the several boards of supervisors of the several counties of this state shall prescribe and allow. (Amended by L. 1918, eh. 466, in effect Sept. 1, 1918.) Derivation: L. 1874, ch. 209, § 2, as amended L. 1876, ch. 108. § 2197. (Eepealed by L. 1909, cL 467. In effect May 24, 1909.) § 2198. Sentence of convicts to state prisons. All male convicts sentenced to imprisonment in a state prison in the first, second and ninth judicial districts shall be sentenced to the Sing Sing prison^ and all so sentenced in the third and fourth judicial districts, shall be sentenced to the Clinton prison, and all flo sentenced in the fifth, sixth, seventh and eighth judicial districts shall be sentenced to Auburn prison. Added by L. 1909, ch. 240. In effect April 22, 1909. 442 Art 198] SEPULTURE. [§§ 2210-2211 ARTICIiE 198. SEPUIiTUBE. SBonoN 2210. Eight to direct disposal of one's own body after death. 2211. Duty of burial of the dead. 2212. Burial in other states. 2213. Right to dissect dead body of a human being. 2214. Unlawful dissection of the body of a human being. 2215. After dissecting, remains must be buried. 2216. Body stealing. 2217. Receiving stolen body of a human being. 2218. Opening graves. 2219. Arresting or attaching a dead body of a human baing. 2220. Disturbing funerals. § 2210. Right to direct disposal of one's own body after death. A person lias the right to direct the manner in which his body shall be disposed of after his death; and also to direct the manner in which any part of his body, which becomes separated therefrom during his lifetime, shall be disposed of; and the proysions of this article do not apply to any case where a per- son has given directions for the disposal of his body or any part thereof inconsistent with those provisions. Derivation: Penal Code, § 305. Wehle V. U. S. Mut. Accident Assoc. (1896), 11 Misc. 36, 31 N. Y. Supp. 865. § 2211. Duty of burial of the dead. Except in the cases in which a right to dissect it is expressly conferred by law, every dead body of a human being, lying within this state, must be decently buried within a reasonable time after death. DerivatioH: Penal Code, § 306. Patterson v. Patterson (1874), 69 N. Y. 683, modf'g 1 Hun, 323, 47 How. Pr. 242; see also Matter of Beekmau Street, 4 Bradf. 503; Copper's case, 58 How. Pr. 55; Rousseau v. City of Troy, 49 How. Pr. 492; Snyder v. Snydar, 60 How. Pr. 368; Windt v. German Reformed Church, Sandf. Ch. 471; Page V. Symonds, 63 N. H. 17, 56 Am. Rep. 481; Wendger v. Cfeary, 113 Ind. 113; Cunningham v. Reardon, 98 Mass. 538; Weld v. U3 §;§ 2212-2213] SEPULTUEE [Art, 198 Walker, 130 Mus. 422, 39 Am. Sep. 465; Meagher v. DriscoU, 99 Mua. 281; Wyncoop v. Wyncoop, 42 Pa. St. 293; Pierce v. Swan Point Cemetery, 10 R. L 227, 14 Am. Hep. 667; William* y. Williams, L. R., 20 Ch. Div. 659; Durell v. Hayward, 9 Gray 248; Lakin v. Ames, 10 Cush. 198, 221; Jenkins v. lucker, 1 H. Bl. 90; Chappell v. Cooper, 3 M. & W. 259. § 2212. Burial in other states. I'Jie last section does not impair any right to carry the dead body of a human being through this state, or to remove from this state the body of a person dying within it, for the purpose of burying the same elsewhere. Derivation: Penal Code, § 307. § 2213. Right to dissect dead body of a human being. The right to dissect the dead body of a human bting exists in the following cases: 1. in the cases prescribed by special statutes; or, 2. Whenever a coroner is authorized by law to hold an inquest upon a body, so far as such coroner authorizes dissection for the purposes of the inquest, and no further; or, 3. Whenever and so far as the husband, wife or next of kin of the deceased, being charged by law with the duty of burial, may authorize dissection for the purpose of ascertaining the cause of death, and no further; or, 4. Whenever any district attorney in this state, in the discharge of his official duties, shall deem it necessary, he may exhume, take possession of, and remove the body of a deceased person, or any portion thereof, and submit the same to a proper physical or chemi- cal examination, or analysis, to ascertain the cause of death, and the same shall be made on the order of any justice of the supreme court of this state, or the county judge of the county in which such dead body shall be, which order shall be made on the appli- cation of the district attorney with or without notice to the rela- tives of tbi^ dpceased prrson or to any person or corporation having the legal charge of such body, as the court may direct. Said dis- trict-attorney shall have power to direct the sheriff, constable, or other peace officer in this state, or to employ such person, or persons as he may deem necessary to assist him in exhuming, removing, obtaining possession of and examining physically or chemically aueh dead body or any portion thereof. The expense therefor 444 Art. 198] SEPULTURE [§§ 2214-2216 shall be a county charge, to be paid by the county treasurer on the certificate of the district attorney. DeriTatloa: Penal Code, § 308, as amended L. 1889, eh. 600. People V. Fitzgerald, 105 N. Y. 152, S N. Y. O. 42, rev'g 43 Hun, 35. § 2214. Unlawful dissection of the body of a human being. A person who makes, or causes or procures to be made, any dissection of the body of a human being, except by authority of law, or in pursuance of a permission given by the deceased, is guilty of a misdemeanor. Derlration: Penal Code, § 309. Jackson v. Savage (1905), 109 App. Div. 556, 558, 96 N. Y. Supp. 366. § 2215. After dissection, remains must be buried. In all cases in which a dissection has been made, the provisions of this article, requiring the burial of a dead body, and punish- ing interference with or injuries to it, apply equally to the re- mains of the body dissected, as soon as the lawful purposes of such dissection have been accomplished. Derivation: Penal Code, § 310. § 2216. Body stealing. A person, wlo removes the dead body of a human being, or any part thereof, from a grave, vault, or other place, where the same has been buried, or from a place where the same has been deposited while awaiting burial, without authority of law, with intent to sell the same, or for the purpose of dissection, or for the purpose of procuring a reward for the return of the same, or from malice or wantonness, is punishable by imprisonment for not more than five years or by a fine not exceeding one thousand dollars, or both. Derivation: Penal Code, § 311. Matter of Board, etc. (1892), 133 N. Y. 335, afTg 62 Hun, 499, 16 N. Y. Supp. 894; see also People v. Fitzgerald (1887), 105 N. Y. 146, 5 N. Y. Or. 835, 6 N. Y. St. 828, rev'g 43 Hun 35, 6 N. Y. St. 699, 69 Am. Hop. 485. 446 29 S§ 2218-2220] SEPULTURE [Art, 198 § 2217. Receiving stolen body of a human being. A person who purchases, or receives except for the purpose of burial, the dead body of a human being, or any part thereof, know- ing that the same has been removed contrary to the last section, is punishuble by imprisonment for not more than three years. Berivation: Penal Code, § 312. § 2218. Opening graves. A person who opens a grave or other place of interment, tem- porary or otherwise, or a building wherein the dead body of a human being is deposited while awaiting burial, without authority of law, with intent to remove the body, or any part thereof, for the purpose of selling it or demanding money for the same, or for the purpose of dissection, or from malice or wantonness, or with intent to steal or remove the coffin or any part thereof, or anything attached thereto, or any vestment, or other article interred, or intended to be interred with the dead body, is punishable by imprisonment for not more than two years, or by a fine of not more than two hundred and fifty dollars, or by both. Derivation: Penal Code, § 313. Rhodes v. Brandt (1880), 21 Hun, 1; Bornman v. Star Co. (1903), 174 N. Y. 220; see also. Coates v. New York City, 7 Cow. 585; Wynkonp y. Wynkoop, 42 Pa. St. 293; Craig v. Presbyterian Church, 88 Pa. St. 42, 32 Am. Rep. 417; Pierce v. Cemetery Co., 10 R. I. 227, 14 Am. Rep. 667; Reg. T. Sharpe, Dears & Bell, 7 Cox Cr. Cas. 214; Slattery v. Naylor, 13 App. Gas. 446, 39 Eng. Rep. 113. § 2219. Arresting or attaching a dead body of a human being. A person who arrests or attaches the dead body of a human being upon any debt or demand whatever, or detains or claims to detain it for any debt or demand, or upon any pretended lien or charge, is guilty of a misdemeanor. Derivation: Penal Code, § 314. Rowland v. Miller, 61 N. Y. Super. 167. 15 N. Y. Supp. 708. 446 Art 198] SEPULTURE [§ 2220 § 2220. Disturbing funerals. A person who, without authority of law ,ob8tructs or detains any persons engaged in carrying or accompanying the dead body of a human being to a place of burial, is guilty of a misdemeanor. DeriTationi Penal Code, § 315. People V. Diamond (1903), 73 App. Div. 281, 285. 76 N. Y. Supp. 57. § 2221. Burials on canal lands. The burial or interment of a human body or human remains or any portion or portions thereof within the blue line of any existing canals of this state, or of the improved canals of this state, is hereby forbidden, and any person or persons violating this section is guilty of a misdemeanor. (Added by L. 1910, ch. 144, in effect Apr. 22, 1910.) 447 § 2240 SOCIETIES AND ORDEKS Art 200 ARTICLE 200. SOCIETIES AND ORDERS. Sbctioh 2240. Unauthorized wearing or use of badge, name, title of ofScerg, insignia, ritual or ceremony of certain orders and societies. § 2240. Unauthorized wearing or use of badge, name, title of officers, insignia, ritual or ceremony of certain orders and societies. 1. Any person who wilfully wears the badge, insignia, rosette or button of the Grand Army of the Kepublie, the Military Order of the Loyal Legion of the United States, the Military Order of Foreign Wars of the United States, the United Spanish War Vet- erans, the Veterans of Foreign Wars of the United States, the American Legion, the Military Order of the World War, the Order of Patrons of Husbandry, or the Benevolent and Protective Order of Elks of the United States of America, or of any society, order or organization of ten years' standing in the state of New York, or uses the same to obtain aid or assistance within this state, or wilfully uses the name of such society, order or organization, the titles of its officers, or its insignia, ritual or ceremonies, unless entitled to use or wear the same under the constitution and by- laws, rules and regulations of such society, order or organization, is guilty of a misdemeanor. 2. Any person who shall wilfully wear the shield of the Union Veteran Legion, or who shall use or wear the same to obtain aid or assistance thereby within this state, unless he shall be entitled to use or wear the same, under the rules and regulations of the Union Veteran Legion, shall be deemed guilty of a misdemeanor, and upon conviction, shall be punished by imprisonment for a term not to exceed thirty days in the county jail, or a fine not to exceed twenty dollars, or by both such fine and imprisonment. (Amended by L. 1914, ch. 149; L. 1915, eh. 320; L. 1919, ch. 418; L. 1921, ch. 42, in effect March 9, 1921.) Derivation: First par., Penal Code, § 674a, added L. 1893, ch. 692, aa amended L. 1894, ch. 505; L. 1896, chs. 366, 1002; L. 1899, ch. 184; L. 1900, eh. 508 ; L. 1905, ch. 590. Second par., I>. 1894, ch. 269. 448 Art. 202] SUICIDE [§§ 2300-2303 ARTICLE 202. smciDE- SBCnoir 2300. Suicide defined. 2301. No forfeiture imposed for suicide. 2302. Attempting suicide. 2303. Punishment for attempting suicide. 2304. Abetting and advising suicide. 2305. Abetting and advising an attempt at suicids; 2306. Incapacity of person aided, no defense. § 2300. Suicide defined. Suicide is the intentional taking of one^s own life. Derivation: Penal Code, § 172. Shipman v. Protected Home Circle (1903), 174 N. Y. 398, 405, modf'g 66 App. Div. 448, 73 N. Y. Supp. 594. § 2301. No forfeiture imposed for suicide. Althougli suicide is deemed a grave public wrong, yet from the impossibility of reaching the successful perpetrator, no for- feiture is imposed. Derivation: Penal Code, § 173. Darrow v. Family Fund Society (1889), 116 N. Y. 542, aff'g 42 Hun, 245; Meacham t. New York, etc. Assn. (1890), 120 N. Y. 242, aflf'g 46 Hun, 363; Shipman v. Protected Home Circle (1903), 174 N. Y. 405, 406, mod'f'g 66 App. Biv. 448, 73 N. Y. Supp. 694; see also Freeman v. Nat. Ben. Society, 5 N. Y. St. 82. § 2302. Attempting suicide. (Repealed by L. 1919, eh. 414, in effect Sept. 1, 1919.) Derivation: Penal Code, § 174. State V. Carney, 55 Atl. 44. 449 §§ 2303r-2306] SUICIDE [Art. 202 § 2303. Punishment for attempting suicide. (Repealed by L, 1919, ch. 414, in effect Sept. 1, 1919.) DeiivatiOB: Penal Code, § 17& Darrow v. Family Fund Society (1886), 42 Hun 245, aff'd 116 N. Y. 542; see also Matter of Card, 8 N. Y. Supp. 297, 28 N. Y. St. 529; Blackburn v. etate, 23 Ohio St. 146; Ctoyle v. Com., 100 Pa. St. 573; 2 Lawson Cr. Def. 441; Wolf V. Conn. Mut. Life, 2 Flipp 358; Terry v. Life Ins. Co., 15 Wall. 580; Coverston v. Conn. Mut. Life Ins. Co., 4 Bige. 169; Ooflfey v. Home Life Ins. Co., 4 Bige. 508; Phadenhauer t. G«rmania Life Ins. Co., 5 Bige. 508; McClure v. Mut. Life Ins. Op., 4 Bibe. 320. § 2304. Abetting and advising suicide. A person who -wilfully, in any manner, advises, encourages, abets, or assists another person in taking the latter's life, is guilty of manslaughter in the first d^ree. Derivation: Penal Code, § 175. People y. Kent (1903), 41 Misc. 191, 83 N. Y. Supp. 948; see also People T. Burnett (111.), 68 N. E. 505; Com. v. Bowen, 13 Mass. 356, 2 Wheel. Cr. Cas, 226; Com. v. Mink, 123 Mass. 422; Blackburn v. State, 23 Ohio St. 146; Reg. T. Jessup, 10 Crim. L. Mag. 862. § 2305. Abetting and advising an attempt at suicide. A person who wilfully, in any manner, encourages, advises, assists or abets another person in attempting to take the latter's life, is guilty of a felony. Derivation: Penal Code, § 176. § 2306. Incapacity of person aided, no defense. It is not a defense to a prosecution under either of the last two sections, that the person who took, or attempted to take, his own life, was not a person deemed capable of committing crime. Derivation: Penal Code, § 177, 450 Art. 204] TAXES. [§§ 2320-2321 ARTICIiE 204. TAXES. Section 2320. Appraiser under taxable transfers law taking fee or rew8.nL 2321. Making false statement in reference to taxes. § 2320. Appraiser under taxable transfers law taking fee or reward. An appraiser appointed by virtue of the taxable transfers law, who takes any fee or reward from an executor, administrator, trustee, legatee, next of kin, or heir of any decedent, or from any other person liable to pay such tax, or any portion thereof, is guilty of a misdemeanor. Derivstioa: Penal Code, § 48c, added lu 1893, ch. 692. § 2321. Making false statement in reference to taxes. A person, who, in making any statement, oral or written, which is required or authorized by law to be made as the basis of imposing any tax or assessment, or of an application to reduce any tax or assessment, wilfully makes, as to any material matter, any statement which he knows to be false, is guilty of a misde- meanor. Derivatloat Penal Code, f 486. 451 § 2360] TRADE-MAKKS. £Art. 206 ARTICIiE 206. TRADE-MARKS. Section 2350. Trade-mark defined. 2361. Affixing defined. 2352. Article of merchandise defined. 2353. Imitation of a trade-mark defined. 2354. Offenses against trade-marks. 2355. Refilling or selling trade-mark bottles and vesseli. 2356. Keeping trade-mark bottles and vessels with intent to refill or sell them. 2357. Search for trade-mark bottles and vessels kept in violation of law authorized. § 2350. Trade-mark defined. A " trade mark " is a mark used to indicate the maker, owner or seller of an article of merchandise, and includes, among other things, any name of a person, or corporation, or any letter, word, device, emblem, figure, seal, stamp, diagram, brand, wrapper, ticket, stopper, label or other mark, lawfully adopted by him, and usually affixed to an article of merchandise to denote that the same was imported, manufactured, produced, sold, com- pounded, bottled, packed or otherwise prepared by him; and also a signature or mark, used or commonly placed by a painter, sculptor or other artist, upon a painting, drawing, engraving, statue or other work of art, to indicate that the same was designed or executed by him. Derivation: Penal Code, § 366, as amended L. 1882, ch. 384. Congress and Emp. Co. v. High Rock Cong. Spring Co. (1871), 45 N. Y. 291, 6 Am. Rep. 82, rev'g 57 Barb. 526; Gillott v. Esterbrook (1872), 48 N". y. 374, aff'g 47 Barb. 455; Meneely v. Meneely (1874), 1 Hun, 367, 62 N". y. 427; Taylor v. Gillies (1874), 59 N. Y. 331, aff'g 5 Daly. 285; Caswell v. Davis (1874), 58 N. Y. 223, aff'g 4 Abb. Pr. (N. S.) 6, 35 How. Pr. 76; Phelan v. CoUender (1875), 6 Hun, 244; Hier v. Abrahams (1880), 82 N. Y. 519; Smith v. Sixbury (1881), 25 Hun, 232; Wagner v. Daly (1893), 67 Hun, 477, 22 N. Y. Supp. 493; Cooke v. Miller (1901), 169 N. Y. 475, aff'g 53 App. Div. 120, 65 N. Y. Supp. 730; People T. Krivitzky (1901)! 168 N. Y. 182, 16 N. Y. Cr. 55, aff'g 60 App. Div. 307, 70 N. Y. Supp. 173; Barrett Chemical Co. v. Stern (1903), 176 N. Y. 27, rev'g 71 App. Div. 616, 76 N. Y. Supp. 1009; People v. Strauss (1904), 94 App. Div. 454, 88 N. Y. Supp. 40; see also Amoskeag v. Spear, 2 Sandf. 699; Bininger v. Wattlea, 28 How. Pr. 206; Booth v. Jarrctt, 62 How. Pr. 169; Caswell ▼. 46> Art. 206] TEADE-MAE.KS. [§§ 2351-2353 Davis, 4 Abb. Pr. (N. S.) 6, 35 How. Pr. 76;Cook v. Starkweather, 13 Abb. Pr. (N. S.) 392; Corwin v. Daly, 7 Bosw. 222; Faber v. Faber, 49 Barb. 367, 3 Abb. (N. S.) 115; Helmbold v. Helmbold Mfg. Co., 53 How. Pr. 453; Howard v. Henriques, 3 Sandf. 725; Lea v. Wolf, 1 S. C. 626, 15 Abb. Pr. (N. S.) 1, 46 How. Pr. 157; Meserole v. Tynberg, 36 How. Pr. 141, 4 Abb. Pr. (N. S.) 410; Newman v. Alvord, 49 Barb. 588, 35 How. Pr. 108, 51 N. Y. 189; Rellett v. Carlier, 61 Barb. 435, 11 Abb. Pr. (N. S.) 186; Stokes t. Landgraff, 17 Barb. 608; Town v. Stetson, 3 Daly, 53, 5 Abb. Pr. 218; Wolfe T. Burke, 7 Lans. 151, rev'd on other grounds, 56 N. Y. 115; Wolfe v. Goulard, 18 How. Pr. 64; Meridan Co. v. Parker, 39 Conn. 450, 12 Am. Rep. 410; Glendon Iron Works v. Uhler, 75 Pa. St. 467. Clark V. Clark, 25 Barb. 76. § 2351. Affixing defined. A trade-mark is deemed to be afiixed to an article of merehan- dise, when it is placed in any manner in or upon: 1. The article itself; or, 2. A box, bale, barrel, bottle, case, cask, platter, or other vessel or package, or a cover, w-rapper, stopper, brand, label or other thing, in, by or with which the goods are packed, inclosed, or otherwise prepared for sale or disposition. Derivation: Penal Code, § 367, as amended L. 1882, eh. 384; L. 1904, eh. 494. § 2352. Article of merchandise defined. The expression " article of merchandise," as used in sections twenty-three hundred and fifty and twenty-three hundred and fifty- one, signifies any goods, wares, work of art, commodity, com- pound, mixture or other preparation or thing, which may be law- fully kept or offered for sale. Derivation: Penal Code, § 365, amended L. 1882, ch. 384. § 2353. Imitation of a trade-mark defined. An " imitation of a trade-mark " is that which so far resembles a genuine trade-mark as to be likely to induce the belief that it is genuine, whether by the use of words or letters, similar in appear- ance or in sound, or by any sign, device or other means whatso- ever. Derivation: Penal Code, § 368, as amended h. 1882, ch. 384. Popham r. Cole (1876), 66 N. Y. 69, 6 J. & Sp. 274, 14 Abb. Pr. (N. 8.) 806, aff'g 38 N. Y. Super. 274, 14 Abb. Pr. (N. S.) 206; Coleman v. Crnmn (1877), 70 N. Y. 573; People v. Fisher (1889), 50 Hun, 652, 3 N. Y. Supp. 463 S 2354] TRADE-MAEKS. [Art. 206 '86; Wagner v. Daly (1893), 67 Hun, 477, 22 N. Y. Supp. 493; see also Electro-Silicon Co. v. Levy, 59 How. Pr. 469; Brooklyn White Lead Co. v. Masury, 25 Barb. 416; Brown v. Mercer, 5 J. & Sp. 265. Merrimack Mfg. Co. v. Garner, 4 E. D. Smith, 387, 2 Abb. 318; Williamg T. Johnson, 2 Bosw. 1; Godillot v. Hazard, 7 Daly Reg. 773. § 2354. [Am'd. 1099.] Offenses against trade-marks. A person who: 1. Falsely makes or counterfeits a trade^mark; or, 2. AfExea to any article of merchandise, a false or counterfeit trade-mark, knowing the same to be false or counterfeit, or the genuine trade-mark, or an imitation of the trade-mark of another, without the latter's consent; or, 3. Knowingly sells, or keeps or offers for sale, an article of merchandise to which is affixed a false or counterfeit trade-mark, or the genuine trade-mark, or an imitation of the trade-mark of another, without the latter's consent ; or, 4. Has in his possession a counterfeit trade-mark, knowing it to be counterfeit, or a die, plate, brand or other thing for the purpose of falsely making or counterfeiting a trade-mark; or, 5. Makes or sells, or offers to sell or dispose of, or has in his possession with intent to sell or dispose of, an article of mer- chandise with such a trade-mark or label as to appear to indicate the quantity, quality, character, place of manufacture or produc- tion, or persons manufacturing, packing, bottling, boxing or pro- ducing the article, but not indicating it truly; or, 6. Knowingly sells, offers or exposes for sale, any goods which are represented in any manner, by word or deed, to be the manufacture, packing, bottling, boxing or product of any person, firm or corporation, other than himself, unless such goods arc con- tained in the original packages, box or bottle and under the labels, marks or names placed thereon by the manufacturer who is en- titled to use such marks, names, brands or trademarks ; or, 7. Shall sell or shall expose for sale any goods in bulk, to which no label or trade-mark shall be attached, and shall by representation, name or mark written or printed thereon, represent that such goods are the production or manufacture of a person who is not the manu- facturer; or, 8. Shall knowingly sell, offer or expose for sale any article JPenai Code, § 685a, added L. 1893, ch. ((92. 466 Art. 218] WITIs'ESS. [§§ 2440-2442 ABTICI^E 218. WITNESS. SacnOK 2440. Bribing witness. 2441. Preventing or dissuading witness from attending, 2442. Deceiving a witness. 2443. Restriction of witness' privilege. 2444. Convicted person a competent witness. 2445. HusOand or wife as witness. 2446. Waiver of immunity. § 2440. Bribing witness. A person who gives or offers or promises to give, to any virit- ness or person about to be called as a witness, any bribe, upon any understanding or agreement that the testimony of such wit- ness shall be thereby influenced, or who attempts by any other means fraudulently to induce any witness to give false testimony or to withhold true testimony, is guilty of a felony. Derivation: Penal Code, § 113. § 2441. Preventing or dissuading witness from attending. A person who wilfully prevents or dissuades any person who has been duly summoned or supoenaed as a witness from attend- ing, pursuant to the summons or subpoena, is guilty of a mis- demeanor. Derivation: Penal Code, § 111. Morse v. Grimke, 8 N. Y. Supp. 1, 18 Civ. Proc. 40. § 2442. Deceiving a witness. A person who practices any fraud or deceit, or knowingly makes or exhibits any false statement, representation, token or writing, to any witness or person about to be called as a witness, upon any trial, proceeding, inquiry or investigation whatever, conducted by authority of law, with intent to affect the testimony of such witness, is guilty of a misdemeanor. Serivatlon: Penal Code, § 108. Matter of Eldridge (1880), 82 N. Y. 181. 467 §§ 2443-2445] WITNESS. [Art. 218 § 2443. Restriction of witness' privilege. No person shall be excused from testifying, in any civil action or legal proceeding, to any facts showing that a thing in action has been bought, sold or received contrary to law, upon the grouud that his testimony might tend to convict hiin of a crime. 15ut no evidence derived from the examination of such person shall bo received against him upon a criminal prosecution. Derivation: Penal CoJc, § 142. Chappell V. Cliappell (190C), 110 App. Div. 578, 101 N. Y. Supp. 846. § 2444. [Am'd, 1909.] Convicted person a competent witness. A person heretofore or hereafter convicted of any crime is, not- ■witlistanding, a competent witness, in any cause or proceeding, civil or criminal, but the conviction may be proved for the purpose of affecting the weight of his testimony, either by the record, or by his cross-examination, upon which he must answer any proper ques- tion relevant to that inquiry and the party cross-examining is not concluded by the answer to such question. EcrlTatien: Penal Code, § 714. Amended by L. 1909, ch. 240. In effect Apr. 22, 1909. People V. Satterlee (1875), 6 Hun, 167-, People v. Noyes (1877), cited in Bims V. Sinia, 12 Hun, 231; People v. Brown (1878), 72 N. Y. 571, 28 Am. Rep. 183, aff'g 8 Hun, 562; People v. Casey (1878), 72 N. Y. 393; National Trust So. v. Gleason (1879), 77 N. Y. 400, 33 Am. Rep. 032, note; People V. Crapo (1879, 76 N. Y. 288, 32 Am. Rep. 302; People v. McGloin (1883), 01 N. Y. 241, 12 Abb. N. C. 17,2, 1 N. Y. Or. 164, afl'g 28 Hun, 165, 1 N. Y. Cr. 105; People v, Noelke (1883), 94 N. Y. 138; People v. Irving (1884), 96 N. Y. 541; People v. Burns (1884), 33 Hun. 296, 2 N. Y. Cr. 415; People v. Parr (1880), 42 Hun, 313, 4 N. Y. Cr. 546, 5 N. Y. Cr. 30; People v. ONeil (1888), 109 N. Y. 200, 48 N. Y. Cr. 331; Spiegel v. Hays (1889), 118 N. Y. 000; Morenus v. Crawford (1889), 51 Hun, 89, S N. Y. Supp. 453; People y. Rose (1889), 52 Hun, 33, 4 N. Y. Supp. 787; People v. Cliajileau (1890), 121 N. Y. 206; People v. Bosworth (1892), 64 Hun, 72, 19 N. Y. Supp. 114; People v. Williams (1895), 92 Hun, 354, 30 N. Y. Supp. 511, aH'd. 140 N. Y. 1; People v. Sebring (1836), 14 Misc. 31, 36 N. Y. Supp. 237; People v. Dortliy (1897), 20 App. Div. 308, 46 N. Y. Supp. 970, all'd 150 N. Y. 237; People v. Sullivan (1898), 34 App. Div. 544, 54 N. Y. Supp. 538; 13 N. Y. Cr. 308; People v. Goodman (1904), 43 Misc. 509, 89 N. Y. Supp. 522; see also People v. Jolinsor 57 Cal. 571; State V. Grant, 79 Mo. 113, 49 Am. Rep. 218; State v. Foley, 15 Nev. 64, 37 Am. Rep. 458. § 2445. Husband or wife as witness. The husband or wife of a person indicted or accused of a crime is in all cases a competent witness, on the examination or trial 463 Art. 218] WITNESS. [§ 2445 of such person ; but neither husband nor wife can be compelled to disclose a confidential communication, made by one to the other during their marriage. Derivation: Penal Code, § 715. Wilke V. People (1873), 53 N. Y. 525; People v. Hougliton (1881), 24 Hun, 501; People v. Bosworth (1882), G4 Hun, 72, 19 N. Y. Supp. 114; People v. Hovey (1883), 29 Hun, 382; People v. Petmscky (1884), 2 N. Y. Cr. 450, afl'd 99 N. Y. 415; People v. Wentwortli (1885), 4 N. Y. Cr. 207; People T. Wood (1891), 120 N. Y. 249; People v. Truck (1902), 170 N.Y. 204, 212, 10 N. Y. Cr. 349; see also People v. Briggs, CO How. Pr. 31, 30; People V. Lewis, 16 N. Y. Supp. 881; Fill v. People, 10 Colo. 4C9, 41 Am. St. Rep. 261. § 2446. Waiver of immunity. If it be provided by this chapter or any other general or special law that a person shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may testify or produce evidence, documentary or otherwise, or that testimony so given or produced shall not be received against him upon any criminal investigation, prosecution or proceeding, such person may execute, acknowledge and file in the oflSce of the county clerk a statement expressly waiving such immunity or privilege in respect to any transaction, matter or thing specified in such statement and thereupon the testimony of such person or such evidence in relation to such transaction, matter or thing may be received or produced before any judge or justice, court, tribunal, grand jury or otherwise, and if so received or produced such person shall not be entitled to any immunity or privilege on account of any testimony he may so give or evidence so produced. (Added by L. 1912, ch. 312; in effect Apr. 15, 1912.) 409 i 2460] WOMEN. [Art. 220 ARTICLE 220. WOMEir. SBcnoN 2460. Compulsory prostitution of women. 2461. Punishment of woman for concealing birth of issue. § 2460. Compulsory prostitution of women. 1. The importation of women and girls into this state or the expor- tation of women and girls from this state for immoral purposes is hereby prohibited and whoever shall induce, entice or procure, or at- tempt to induce, entice or procure, to come into this state or to go from the state, any woman or girl for the purpose of prostitution or concubinage, or for any other immoral purpose, or to enter any house of prostitution in this state or any one who shall aid any such woman or girl in obtaining transportation to or within this state, shall be deemed guilty of a felony and, on conviction thereof, shall be punishable by imprisonment for a period of not less than two years nor more than twenty years and by a fine not exceeding five thousand dollars. 2. Any person who shall place any female in the charge or custody of any other person for immoral purposes or in a house of prostitution or elsewhere with intent that she shall live a life of prostitution; or any person who shall compel or shall induce, entice or procure, or attempt to induce, entice, procure or compel any female to reside with him or with any other person for immoral purposes, or for the pur- poses of prostitution or shall compel or attempt to induce, entice, pro- cure or compel any such female to reside in a house of prostitution or compel or attempt to induce, entice, procure or compel her to live a life of prostitution shall be guilty of a felony and, on conviction thereof, shall be punishable by imprisonment for not less than two years nor more than twenty years and by a fine not exceeding five thousand dollars. 3. Any person who shall indncp, entice or procure, or attempt to induce, entice or procure any \toman or girl for the purpose of prostitution or concubinage, or for any other immoral purpose, or to enter any house of prostitution in this state shall be deemed guilty of a felony and, on conviction thereof, shall be punishable by imprison- ment for a period of not less than two years nor more than tweatv years and by a fine not exceeding five thousand dollars. 470 g 2i60] WOMEN. [Art. 220 4. Any person who shall receive any money or other valuable thing for or on account of placing in a house of prostitution or elsewhere any female for the purpose of causing her to co-habit with any male person or persons to whom she is not married shall be guilty of a felony and, on conviction thereof, shall be punishable by imprisonment for a period of not less than two years nor more than twenty years and by a fine not exceeding one thousand dollars. 5. Any person who shall pay any money or other valuable thing to procure any female for the purpose of placing her for immoral pur- poses in any house of prostitution or elsewhere, with or without her consent, shall be guilty of a felony and, on conviction thereof, shall be punishable by imprisonment for a period of not less than two years nor more than twenty years and by a fine not exceeding five thousand dollars. 6. Any person who shall knowingly receive any money or other valuable thing for or on account of procuring and placing in the cus- tody of another person for immoral purposes any woman, with or with- out her consent, shall be guilty of a felony and, on conviction thereof, shall be punishable by imprisonment for a period of not less than three years noi more than twenty-five years and by a fine not exceeding five thousand dollars. 7. Any person who shall hold, detain, restrain or attempt to hold, detain or restrain in any house of prostitution or other place, any fe- male for the purpose of compelling such female, directly or indivectly, by her voluntary or involuntary service or labor to pay, liquidate or cancel any debt, dues or obligations incurred or said to have been in- curred in such house of prostitution or in any other place shall be deemed guilty of a felony and, on conviction thereof, shall be punish- able by imprisonment for a period of not less than two nor more than twenty years and by a fine not exceeding five thousand dollars. 8. Any person who shall knowingly accept, receive, levy, or approp riate any money or other valuable thing without consideration, from the proceeds or earnings of any woman engaged in prostitution shall be deemed guilty of a felony and, on conviction thereof, shall be pun- ishable by imprisonment for a period of not less than two years nor more than twenty years and by a fine not exceeding one thousand dollars. Any such acceptance, receipt, levy, or appropriation of such money or valuable thing shall upon any proceeding or trial for viola- tion of this section be presumptive evidence of lack of consideration. 9. No conviction shall be had under this section upon the testimony of the female unless supported by other evidence. (Amended by L. 1910, ch. 618, in effect June 24, 1910.) Derivation: Penal Code, § 283a. added L. 1906, ch. 413. 4'rOa Art, 220] WOMEN. [§ 2461 § 2461. Punishment of woman for concealing birth of issue. A woman, wha, having been convicted of cj:deavoring to con- ceal the still-biilh of an issue of her body, which, if born alive, would be a bastard, or the death of any such issue under the age of two years, subsequently to such conviction endeavors to conceal any such birth or death, is punishable by imprisonment in a state prison not exceeding five years, and not less than two years. Derivation: Tenal Code, § G93. Original § 24G1 repealed and { 1043 renumbered S 24G1 by h. 1909, ch. 524. In effect May 27, 1009. 4T1 i§ 2480-2482] WRECKS. [Art. 223 ARTICI£ 222. ^VBECES. Section 2480. Keeping wrecked goods a misdemeanor. 2481. Defacing marks upon wrecked property. 2482. Officer unlawfully detaining wrecked property. § 2480. Keeping wrecked goods a misdemeanor. A person, who takes away goods or other property not his own from a stranded vessel, or any goods or other property cast by the sea upon the land or found in a bay or creek, or who know- ingly becomes possessed of any such goods or other property, and does not deliver the same, within forty-eight hours thereafter, to the sherifiF or one of the coroners or wreck masters of the county where the same was found, is guilty of a misdemeanor. Serlvatlon: Penal Code, § 538. People ex rel. Bidwell ▼. Pitts (1906), 111 App. Div. 310, 97 N. T. Supp. 609, 19 Cr. Bep. S73; see also Dayton's Case, 2 City Hall Rec. 167. § 2481. Defacing marks upon wrecked property. A person who defaces or obliterates the marks upon wrecked property, or in any manner disguises the appearance thereof, with intent to prevent the owner from discovering its identity, or who destroys or suppresses any invoice, bill of Jading or other document tending to show the ownership thereof, is guilty of a misdemeanor. Derivation: Penal Code, § 372. Baker v. Hoag (1853), 7 N. Y. 555. § 2482. Officer unlav^fuUy detaining wrecked property. An officer, whose duties pertain in any way to wrecked prop- erty, who, without authority of law, detains snch property or the proceeds thereof, after the salvage and expenses chargeable thereon have be^n paid or oflFered to him, or who is guilty of any fraud, embezzl'-ment or extortion in the discharge of such iuties, is guilty of a misdemeanor. Derivation: Penal Code, § 374. 4Y2 Art. 224J REPEALS, ETC. [§J 2500-2502 ARTICLE 224. REPEAI, OF PROVISIONS OF PXXAI, X.AW mrST BE EXPIJCIT; UiW» REFILJl££D| TUCE OF TAXnrO EFFECT. Sbotion 2500. Repeal of proTiaion* of penal law must be explicit. 2601. Laws repealed. 2602. Time of taking effect § 2500. Repeal of provisions of penal law must be explicit No provision of this chapter, or any part thereof, shall be deemed repealed, altered or amended by the passage of any sub- sequent statute inconsistent therewith, unless such statute shall explicitly refer thereto and directly repeal, alter or amend this chapter accordingly. Derivation: Penal Code, 8 728, added L. 1886, ch. 31. Mongeon v. People (1874), 56 N. Y. 618, aff'g 2 T. A C. 128; People v. Maxwell (1894), 83 Hun, 157, 31 N. Y. Supp. 564; American Society t. City of Glovereville, (1894), 78 Hun, 40, 29 N. Y. Supp. 257; People v. Cleary (1895), 13 Hisc. 546, 35 N. Y. Supp. 688; People T. Koenig (1896), 9 App. Div. 436, 41 N. Y. Supp. 283; People v. Jensen (1904), 99 App. Div. 355, 90 N. Y. Supp. 1062, 19 Cr. Eep. 5; see also People v. Hatter, 22 N. Y. Supp. 690, Clearwater, J.; District of Columbia v. Hutton, 143 U. S. 127; United States t. Claflin, 97 U. S. 646. § 2501. Laws repealed. All acts and parts of acts which are inconsistent with the pro- visions of this chapter are repeaJed, so far as they impose any punishment for crime, except as herein provided. Of the laws enumei-ated in the schedule hereto annexed, that portion specified in the last column is hereby repeialed. SerlTatlon: First par.. Penal Code, § 726. People V. Bernardo (1883), 1 N. Y. Cr. 245; Matter of McMahon (1883), 64 How. 286, 1. N. Y. Cr. 68; People v. McTameney (1883), 30 Hun, 605, 13 Abb. N. C. 65, 1 N. Y. Cr. 437; People v. Russell (1885), 3 N. Y. Cr. 475; People ex rel. McDonald t. Keeler (1886), 99 N. Y. 463, 3 N. Y. Cr. 354, rev'g 32 Hun, 563; People v. Jaehne (1886), 103 N. Y. 182, 4 N. Y. Cr. 478, aff'd. 128 U. S. 189, 6. N. Y. Cr. Rep. 237; People v. Rontey (1889), 117 N. Y. 624, aff'g 4 N. Y. Supp. 236, 6 N. Y. Cr. 249; see also Matter of Hallenbeck, 65 How. 401; People v. Hatter, 22 N. Y. Supp. 388; Rockwood V. Oldiield, 2 N. Y. St. 331. § 2502. Time of taking effect. This chapter shall take effect immediately. DeTivatloB: Penal Code, § 727, as amended L. 1882, ch. 102. People V. Beckwith (1888), 108 N. Y. 72, 7 N. Y. Cr. 162 aff'g 45 Him, OS. 4T3 SCHEDULE OF LAWS REPEALED. (Eepealed by L. 1909, Ch. 88, § 2501.) Revised Statutes Part 1, chapter 20, Revised Statutes Part 1, chapter 20, Revised Statutes Fart 1, chapter 20, Revised Statutes Fart I, chapter 20, Revised Stat"^s Part 1, chapter 20, Revised Statute... ^ Fart 1, chapter 20, Revised Statutes -. Fart 1, chapter 20, Revised Statutes Part 1, chapter 20, Revised Statutes Part I, chapter 20, Revised Statutes Part 4, chapter 1, Revised Statutes Part 4, chapter 1, Revised Statutes Part 4, chapter I, Revised Statutes Fart 4, chapter 1, Revised Statutes Fart 4, chapter 1, Revised Statutes Part 4, chapter I, Revised Statutes Part 4, chapter 1, Revised Statutes Part 4, chapter 2, title title title title title title title title title title title title title title title title title Revised Statutes Part 4, chapter 2, title Sections 2 4 8, article 1 All 8, article 2 All 8, article 3 All 8, article 4 22-63 8, article 6 All 8, article 6 All 8, article 7... 64, 66, 63 8, article 8 69-71 1 1, 2, 4-10 2 All 3. . . All 4 All 6 AH 6 All 7 All 4, article 2 39, 40, 43, 49 S 18 LAWS 1778.. 1778... 1779... 1779... 1780. . . 1780... 1780... 1780... 1781... 1781... 1783. 1783. 1784. 1784. 1785. 1786. 1786. 1787. 1787. 1787. 1787. 1787. 1787. CHAFTCB BKOnOIT .. 19 1 .. 27 AU .. 28 All(2dScsa. .. 19 AU(3dSess, 48. 66. 64. 77. 48. 14. 12. 22. 27. 66. 81. 88. 41. 13. 21. 22. 23. 26. £0. All 6 6 All 1 All (6th All 6 All 1 All All 23 All All All All 6 1-4. 6 LAWS 1787.. 1787.. ) 1788.. ) 1788.. 1788.. 1788.. 1788., 1788.. 1788., 1788. ) 1788. 1788. 1788. 1788. 1788., 1788. 1788. 1788. 1788. 1788. 1789. 1700. 1708. 474 OHAFm .. 66.... .. 97.... .. 16 .. 17.... .. 18.... .. 19.... .. 20.... .. 21.... .. 22.... .. 23.... .. 24 .. 26.... .. 26 .. 34.... .. 36.... .. 37.... 42. 48. 85. 88. 3. 30. SECTION . 1. 2, 9 . All . AU , 1-6 . 2-10 . All . All , All . All . All . AU . All . All . 3 . All . 1, 2, 6, 7, 0- 11 . 1-8 . 12 . 1 . All . AH . 1-13 66 1, 2, 10-12 SCHEDULE OF LAWS REPEALED. I.A'WS 1708.. 1798.. CRAPTEB .. 82... 170!) 1800 180Q 1801 1801 1801 1801 1801 1801 1801 1801 1801 1801 1801 , 1801 1801 1801 , 1801 , 1801 1801 1801 1801 , 1802 1803...... 1804...... 1805 1805 .; 1806. 1807 1807 1807 1807 , 1808 1808 1808 1809 1809 1810 1810 ISll 1812 1813 R.L. 1813. E.L. 1813. R.L. 1813. E.L. 1813. 67. 60. 133. 29. 31. 34. 4G. 48. 53. 54. 58. CO. SECTION . AH . All (22d . All . 3-5, 13 . 23 . 1.2 . 1 . 1,2.4-8 . All . All . All . All . All . 3, 4, G, 20 01 • 10, 16, 17 G4. 70. 74. 87. 88. 124. 120. 146. 147. 44. 71. 20. 00. 91. 181. 65. 107. 171. 181. 06. 4 12 1.3 2-10 All All All 2 1 All All AH 3 1-0 1,2 2 4 All All All 155 1-20, 2S 22C. 36. 138. 187. 193. 238. 84. 198. 5. 10. 15. 20. All All 8,0 5 20 2 1 All All All AH AU lATVS CHAPTEB SECTIOIf R.L. 1813. 24 AH E.L. 1813. £9 All K.L. 1813. 44 AU R.L. 1813. 45 All E.L. 1813. 50 28 1814 120 1-5, 13-17 1814 200 61 1814 2 All (38tliSeas.) 1814 19 All (38th Seaa.) 1815 128 ., All 1815 167 All 1815 206 21 1816 1 1,2,7 (4Uth Seas.) 1817 86 All 1817 181 All 1817 269 11, 13 1818 136 AU 1818 269 3, 17 1818 261 2 1819 206 AU 1810 217 All 1810 246 AU 1820 28 All 1820 04 AU 1820 107 AU 1821 103 AU 1822 71 16 1822 163 AU 1824 61 1 1824 322 AU 1826 108 AU i827 300 AU 1827 312 All 1828 320 All 1828 21 1, n 11, 1» 25-30, 41, 47, 40, 5:i, 55, 60, 61, 03, 64, 60, 76, 103-105, 135-137, 178, 181, 1!)0, 198, 218, 234, 285, 288, 201, 400, 423, 527, 628, 547 1829 270 AU 47{> SCHEDULE OF LAWS KEPEaLED. LAWS CHAFTEB GECnOlV 1829 873 All 1830 320 58, 59 1833 230 All 1833 306 All 1833 315 All 1834 73 All 1834 187 All 1834 281 All 1830 171 6 1837 430 6, 8-10 1837 457 All 1830 259 All 1840 100 All 1840 375 All 1845 3 6-8 1845 201 All 1845 228 I 1845 260 All 1845 279 All 1840 22 All 1847 349 All 1848 105 All 1848 Ill All 1849 266 2 1849 278 All 1850 123 All 1850 340 All 1851 144 All 1861 182 All 1861 604 1, 2,6-8 1852 105 All 1853 639 All 1853 673 All 1853 G29 All 1854 74 All 1854 109 All 1854 130 All 1855 155 All 1855 214 All 1855 409 All 1865 604 All 1860 98 All 1850 158 All 1857 390 1 1867 470 All 1858 326 All 1868 359 All 1869 37 AU tAWS CHAPTEB SECTION 1869 48 All 1859 333 All 1800 103 1-0 1800 141 AU 1860 213 6 I860 410 1, 2, 6, 7, t 11 1860 501 All 1861 303 All 1862 112 All 1862 197 All 1862 300 All 1862 374 All 1862 484 1, 2 1863 61 All 1863 209 AM 1803 244 All 1864 301 All 1866 212 All 1806...... 222 All 1806 J 729 All 1800 .' 440 All 1806 .' 660 All 1866 682 All 1800 710 All 1866 783 All 1867 : 375 1-5,7-10 1867 677 1 1867 871 All 1807 055 All 1808 iSQ All 1808 430 1-3 1808 045 All 1808 : 070 All 1808 J 7U3 All 1808 ; 820 All 1809.; 478 All 1809 674 3 1809 031 1,2,4 1809 742 1-4,8 1809 749 All 1809 873 All 1809 895 4. 6 1870 19 AU 1870 151 4 1870 299 AU 1870 300 AU 1870 423 All 47C SCHEDULE OF LAWS KEPEALED. lAWB CHAPm SECTION 1870 ese All 1871 77 All 1871 259 All 1872 113 All 1872...... 181 All 1872 411 All 1872 721 AU 1872 747 1-3, i, • 1873 18 All 1873 «44 All 1873 777 All 1874 12 1-6, 8. » 1874 63 All 1874 118 All 1874 207 All 1874 209 2-4 1874 282 All 1874 340 All 1874 440 All 1874 670 2 1876 19 AU 1875 24 All 1875 97 All 1875 107 All 1876 206 All 1876 246 All 1875 303 All 1876 1 AM 1876 108 AU 1876 122 AU 1876 182 2, 8 1876 201 AU 1876 333 AU 1876 426 All 1877 178 AU 1877 208 AU 1877 261 AU 1877 428 All 1877 461 AU 1878 28 AU 1878 189 AU 1878 288: AU 1878 401 AU 1879 24 AU 1879 186 AU 1879 227 AU 1879 328 2 1879 403 AU SI LAWS OHAPTEB SECTIOff 1879 474 AU 1880 42 AH 1880 176 7 1880 186 AU 1880 209 AU 1880 278 AU 1880 283 Ai; 1880 370 AU 1880 449 AU 1880 641 2 1881 87 All 1881 222 AU 1881 419 AU 1881 436 AU 1881 496 AU 1881 676 AU 1882 102 AU 1882 166 AU 1882 384 AU 1883 802 AU 1883 358 AU 1884 46 AU 1884 369 AU 1884 377 AU 1884 378 AH 1884 380 AU 1886 8...... AU 1886 490 AU 1886 613 AU 1886 619 AH 1885 623 AU 1886 31 AH 1886 68 AU 1886 390., All 1886 647 AU 1886 646 AU 1886 654 AH 1886 663 AU 1887 23 AU 1887 163 AU 1887 632 AU 1887 635 AU 1887 687 AU 1887 688 AU 1887 689 AU 1887 690 AU 1887 691 AU 1887 602 All 477 SCHEDULE OF LAWS REPEALED. CHAPTEB 687 1 lAWB CHAPTXB BEOnOir I^W8 1887 893 All 1892. IWT TU 9, part begin- 1892 822 All ning "and 1892 634 All th* eourt " 1892 882 All to and of 1892 692 All acntcnes. 1892 693 All J888 1 All 1892 699 All 1888 144 All 1893 lU AU 1888 146 All 1893 279 All 1888 219 All 1893 292 All 1888 282 All 1893 296 AM •1888 490 5-7 1893 461 All 1888 401 All 1803 650 AU 1888 492 All 1893 681 AU 1888 493 AU 1893 692 All 1888 626 AU 1893 708 AU 1889 8 AU 1893 709 AH 1888 45 AU 1894 77 AM 1889 46 AU 1894 164 All 1880 140 AU 1894 171 AU 1889 141 All 1894 269 AU 1880 170 All 1894 266 AU 1880 267 AU ' 1894 282 AU 1889 428 An 1894 320 All 1880 497 AU •1894 426 2,$ 1889 600 AU 1894 474 All 1890 41 AU 1894 505 AU 1890 04 All 1894 661 AU 1800 220 All 1894 626 AU 1890 280 AU 1894 714 All 1890 836 AU 1894 726 All 1890 340 AU 1894 763 All 1890 378 AU 1895 72 AU 1890 417 AU 1895 166 AU 1890 458 AU 1896 287 AU 1891 115 All 1895 460 AU 1891 120 .. AU 1895 571 AU 1891 327 AU 1895 672 AU 1891 358 AU 1895 721 AU 1892 186 All 1895 726 AU 1892 217 All 1896 727 AU 1892 218 All 1896 778 AU 1802 268 All 1806 823 AU 1892 272 AU 1895 883 All 1892 309 AU 1896 885 All 1892 325 AU 1896 890 AU 1892 372 AU 1895 892 All 1802 496 AU 1805 902 AU * Bm L. 1909, ch. 240, !S »3, 101. 478 SCHEDULE OF LAWS REPEALED. tA.m CHAPTEB SEcnoir 189S 112 40,41 ISOCt 301 AH 1896 304 All 1896 306 All 1896 374 All 1896 410 All 1896 414 All 1896 549 All 1896 550 All 1890 651 All 1896 552 All 1896 653 All 1896 554 All 1896 648 All 1896 664 All 1896 931 5 1896 1002 All 1897 42 All 1897 183 All 1897 , 255 All 1897 258 All 1897 267 All 1897 312 28 1897 416 All 1897 ;. 500 All 1897 548 All 1897 549 ■ All 1897 654 2.3 1897 584 All 1897 613 1 1898 15G All 1898 105 4 1898 197 All 1838 325 All 1808 330 All 1898 394 All 1893 555 10 1898 C57 All 1898 COS All 18n8 004 5 isns 071 All 1803 12 All 1899 184 All 1899 225 2 18!)9 205 All 18n9 310 All 1899 .. 327 All 1899 .. 338 All 1S99 343 AU JJiVra CHAPTER SECTdMI 1899 475 AU 1809 515 All 1809 529 All ' 1809 530 All 1899 603 AU 1899 655 AU 1899 724 AH 1900 70 AU 1000 109 AU 1900 114 All 1900 171 AU 1900 216 AU 1000 222 AU 1000 270 AU 1000 494 AU 1000 508 AU 1900 584 AU 1900 586 AU 1900 588 AU 1900 589 AU 1900 731 AU 1900 759 AU 1900 708 AH 1001 128 AU 1901 190 AU 1901 367 AU 1901 371 AU 1901 302 AH 1901 425 AU 1901 528 AU 1001 500 1 1001 588 AU 1001 030 AU 1901 001 All 1902 01 AU 1902 83 AU 1902 1(13 AH 1902 116 AU 1902 148 AU 1902 203 AU 1902 200 AU 1902 282 An 1902 333 AH 1902 371 AU 1902 486 All 1903 50 All 1003 272 AU 1903 309 All 1003 320....;. AU 479 SCHEDULE OF LAWS REPEALED. LAWS ORAPTBB SBCTIOir 1003 331 All 1903 332 All 1003 333 All 1903 349 An 1903 376 All 1903 380 All 1903 494 All 1904 388 All 1904 423 All 1904 489 All 1904 494 AH 1904 639 All 1904 649 All 1904 657 All 1904 659 All 1904 661 All 1905 80 All 1905 92 All 1905 136 All 1905 168 All 1905 242 All 1905 248 All 1905 270 All 1905 279 1 1905 287 All 1905 326 All 1905 306 All 1905 440 All 1905 441 All 1905 442 All 1905 443 All 1905 550 All 1905 590 All 1905 625 All 1905 fio.') , All 1905 092 All 1906 30 All 1906 41 All 1906 138 All 1906 231 All 1906 280 All 1906 324 All 1906 353 All 1908 413 All 1906 453.... .. All 1906 454 All 1906 485 All 1906 503 All mOB 510 All 1900 521 All LAWS CHAPTKB SBCTIOir WOT...... 192 All 1007...... 297 All 1007 398 AU 1007 405 All 1007 417 All 1007 424 All 1007 500 All 1907 523 All 1907 544 All 1907 ,640 All 1007 681 All 1907..'.... 582 AM 1907 583 All 1907 684 All 1907 626 All 1907 645 All 1907 649 AU 1907 082 All 1907 083 All 1907 737 All 1007 738 All 1907 741 All 1908 93 All 1908 118 All 1908 133 All 1908 157 All 1908 270 All 1908 277 All 1908 427 All 1908 428 All 1908 449 All 1908 458 All 1908 507 All Code Civil Procedure. 13. 32, 33,63, 64, 70, 71, 73-77, 78- 81, 106; 125, prrfc prescribing penalty for violation; 130, 1S9, 334, 851, 901, last Benteiice, 1120, 1122- 1125, 11.58- 1161, 1193, 1194 480 INDEX TO PENAL LAW. SECTION Abandonment. pregnant wife ^^ See Animals; Children. Abduction. acts which eonitituta TO no eonviction on unsupported teatimonjr 71 of persons out of State 1930 for purpose of secreting another 12fi0 child under sixteen years of age 1260 Abortion. definition and punishment of 80 killing of child in attempting miscarriage 81, 1050 selling drugs or instruments to procure a miscarriage 82 when manslaughter 1060, 1052 dying declarations of woman admissible, Code Crim. Froc, | 398a. Asceasories. definition 2, 27 where tried 1934 punishment of 1934, 1936 effect of pardon of primcipal 1934 Accident. homicide committed by 1054 Aecovnts. bank oflloer overdrawing 294 bank officer keeping fraudulent 290 falsification of, by public oflScer, felony 1865 false entries on books of, forgery 889 officers of corporation overdrawing and keeping false 294, 296 presentation of fraudulent, to public oi&cers, felony 1872 Acknowledgment. conveyance without not to be recorded 1862 false certification of 885 effect of forging certificate of 293 recording conveyance without, misdemeanor 1862 forging certificate of 293 falsely certifying, by officer 886 Acquittal. when foreign a defense ,, . . 33 bar to indictment for another degree , 32 or of attempt to convict 32 See Duehng. Acrobatic Exhibitions. must use net for ggo 481 Indbx to Psnal Law. 8BCTI01T Act or OmiMion. effect of, when begun after penal law took affeet 22 constituting a crime 2 justifiable when done in defense of self or another 42 prohibited acts 29 not expressly forbidden, how punished 43, 720 committed out of State. 1930, 1033 punishable in different ways 1938 punis'hable under foreign law 28 contempt of court dOl when omission to perform not punishable 3S See Aiding and Abetting. Action. institution of civil, without consent 1785 person injured by convict may bring, for damages 84S malicious, serving of civil process on holy day 2150 Adulteration. of food, etc., for sale, etc 1748, 1741 See Apothecary; Food; Milk; PuhUc Bealth. Adultery. ^ deSned 100 is a misdemeanor 101 punishment 102 conviction cannot be had on unsupported testimony 103 Advertising. relating to certain diseases prohibited 1142a to procure divorces 120 affixing advertisement to property of another 121 inserting unauthorized advertisement in newspapers and magazines. . 122 as agent of vessel to sell passage tickets 1563 as attorney at law when not licensed to practice 270 as to securities 952 to sell real estate by prizes or rewards 421 false and misleading advertisements _ 421 counterfeit money and stamps 895 intoxicating liquors 1214d misrepresentation of circulation of newspaper to procure 946 lotteries 1374, 1375 to insure lottery tickets 1379 Age. evidence as to, of child •. . , . 817 Agents. agents must file statement of agency 140 duty and fees of county clerk to keep register of 142 failure to make and file statement, a misdemeanor 141 Relief of principal from liability for future acts of agent 1.13 larceny by 1290 of society for prevention of cruelty to animals, powers and duties of 190 carrying on or conducting business as 140-143 corrupt influencing of 439 Agricultural Law. violations of 1761 Agricultural Society. racing animals upon grounds of, when not misjdemeanor ,. lOSA 482 Ikdkx to Pbnai. Law. SEcnoH tiling and Abetting. crime from without the State ■ 1930 person, in commission of crime is » principal 2 commission of suicide, effect of 2304 attempt to commit suicide 2305 forcible entry, etc 2034 See Aot or Omission. Ail Gnn. di^icharging in public place 1808 Alms. maiming one!s self to obtain 1403 Ambassadors. of foreign governments not criminally punisliable in this State 25 Ambulance. used for transportation of sick, obstructing passage of I7S5 American Society foi Prevenlaon of Crnelty to Animals. abandoned animals may be destroyed by 186 When iines may be paid to 190, 491 Amusements. attendance of children at places of 434 denial of admisbion to places of 514, 615 See Indecency. Anarchy. advocacy of criminal 161 assemblages of anarchists 162 criminal, defined 160 leaving State with intent to elude provisions relating to 165 liability of editors and others 164 permitting premises to be u^ed for as'semblages of anarchists IGS witness privilege 16S Animals. abandonment of disabled 186 "animal" defined IgO carrying, in a cruel manner 189 cows, keeping in unhealthy places and feeding them with food pro- ducing unwholesome milk 192 " cruelty " defined . . 1 80 dangerous, on highways 1425 driving on sidepath or sidewalk 1807, 190S disposition of, or implements used in fights among 184 failure to provide proper food and drink to impounded animal 187 fights instigating between birds and ig2 fines and penaltie? to whom paid igij horses, selling disabled 188a keeping a place where, are fought '.*.'.'.'..'.! 181 )ans' fleeing froiJi justice 512 generally < 37 Forfeiture of 0£Sce. by public officer not biving qualified 1820 by selling appointinents 1832 or selling rights of office 1833 by member of legislature for bribery 1331 by officer allowing escape intentionally 1697 by attorneys, buying demands, etc 274 by sentence to state prison 610 generally 37 Forgery. advertising counterfeit money and stamps 895 coin, having possession of, counterfeit 894 false certificate to certain instruments is forgery 885 falsely indicatins; person as corporate officer 882 " forge," forfifed," forging," defined 880 forgery in first deeree 884 punishable by imprisonment not exceeding twenty years 886 in second degree 887 puni!ihobIe by imprisonment not exceeding ten years 888 ' in third degree 889 punishable by imprisonment not to exceed five years 893 officer of corporation selling fraudulent shares 890 passage tickets, forging 891 possession, having, of counterfeit coin 894 stamps, advertising coiinterfeit 895 forging United States or State 892 tickets, forginpr of passage 891 utterins forged instruments is 881 writing signed with wrongdoer's name 883 " written instrument " defined * 880 See Evidence; Records and Dooumenta. 04 . Inbex TO Pb»al Law. Fraods and Cheats. delivery to customera of memoranda of tranBactioiu by brcAen m entry Into agricultural fair srouads U; false pedigree of animals 9St false rumors as to stocks, bond* or public funds 828 false statement or advertisement as to securities $52 falsely personating another ^ fictitious copartnership names 924 fictitious transactions in securities 951 fraud in affairs of limited partnership 920 frauds on hotel-keepers 925 fraudulent appropriation of lost treasure or waived property 949 fraudulent use of the name or title of secret fraternity I3g fraudulently obtaining employment 939 fraudulently obtaining property for charitable purposes 934 fraudulently secreting personal property 940 false statement In regard to employment 950 false statement in writing as to financial condition 1293b hypothecation of customers* securities 95g intent to defraud ... 1 92i limitations as to indictments for fraudulent marrlELges 929 manipulation of prices of securities 953 misrepresentation of circulation of newspapers or periodicals 946 mock auction 943 obtaining by fraud or without authority signature to applications or property for degrees, secrets or membership in secret fraternities 93S obtaining negotiable evidence of death by false pretenses 937 obtaining property by false pretenses 932 pawning borrowed property 941 personating beueflclary of entrance ticket 942 personating officers, firemen, and other persons 931 production of pretended heir 922 publishing false messages 9-14 receiving property In false character t 930 securities, false statement or advertisement as to 952 reporting or publishing fictitious transactions In 951 manipulation of prices of 953 hypothecation of 956 transactions by brokers after Insolvency 955 substituting one child for another 823 trading by brokers against customers' orders 954 transactions by brokers after Insolvency 955 unlawful use of name of benevolent, humane or charitable corporation 950 unlawful dues or assessments of certain secret fraternities 936a unlawfully selling tickets for balls and entertainments 945 using false check or order for payment of money 988 rerbal false pretense not criminal 947 witness, fraud perform or omit any official act 1324 disturbing the, whi'e in session 1321 intimidating a member c f the ■ 1323 members of the, liable t j forfeiture of office 1331 preventing tl.e meeting c r organization of either branch of the. . . 1320 receiving bribes ly memhe-s of 1328 refusing to testify before either house or any commi'tee 1330 witnesses refusing to attend before the, or legislative pommittees. . 1329 Letter. „.- to or from convicts • • • • ^° threatening to extort or injure 551, »oo forging of recommendation • • • • See Communication. Levy. 1171 removal of property to prevent ^^^ unauthorized Libel. ^ 1■^2 defense to prosecntlon for •••• 1.540 definition 1341 )s n nifsdPmeTor ■•••••■••••:•■ ■.'.■ 1^4 editors and others, liability for ■ ],_k3 falceed^^^^ ]Zl restriction on ird'c'-'vent for ■.■.■.■.■.■■.!,! 1351 threatening to publlsli 12 Index to Penal Law. SECnOH licanes. pawnbroker acting without 1590 physician or surgeon must have 1762 Hell-Gate pilots must have 1501 maintaining private insane asylums without 1122 of auctioneer forfeited by sales, etc., by mock auction 843 See Firearms. Lien. secreting, selling, etc., property covered by 940 Life. endangering, by gunpowder, etc 1895 injury to appliance? for saving 1911 boats in bathing places 831 See Suicide. Linen. unlawfully marking 430 Liquors. child not to be allowed where sold 482, 486 adulteration of 1748 Literatue. obscene, selling, mailing, and sending 1141, 1143 Loeuis. taking security for usurious 2400 Logs. floating, or defacing marks thereon 1360 Lost Property. when keeping of, criminal 1300 Lost Treasure. fraudulent appropriation of 949 Lotteries. advertisements by persons out of the State 1375 advertising 1374 to insure lottery tickets 1379 building, letting for purpose of 1381 certain transfers of property in pursuance of, void 1385 contracts, agreements, and securities on account of raflSing, void. . . . 1326 contriving, drawing, and assisting in 1372 definition of 1370 insuring lottery tickets 1378 keeping a lottery office 1377 letting building for lottery purposes 1381 lotteries out of this State 1382 lottery unlawful and a public nuisance 137 1 money paid for lottery tickets may be recovered by action 1383 oiTering property for disposal dependent upon the drawing of any lottery 1376 prizes in, forfeited 1384 property offered for disposal in lotteries, forfeited 1380 sellmg lottery tickets 1373 I«7al Legion. unauthorized wearing of badge 2240 518 Index to Penal Law. SBCTIOM Lumber. defacing marks on 1360 Lunatic. See Incompetent Persont. IC. Hachineiy. death by negligent U8e 1052 malicious injury to 1423 Magaxines. inserting unauthorized advertisements 122 Maiming. defense, recovery of injured person as 1404 definition and punishment 1400 one's self to escape performance of a duty 1402 one's self to obtain alms 1403 what injury may constitute 1401 MagistTate. disclosure of depositions by 1780 must direct seizure of indecent articles 1144 duty of, regarding gaming 977 solemnizing unlawful marriage 1450 must order arrest of persons about to engage in prize fight 1715 must destroy false weights and measures, when 2414 temporary commitment of children by 486, 487 Malicious Mischief. altering signal or light for railroad or vessel 1422 burning crops or timber, how punished 1421 damaging building or vessel by explosion 1420 destroying or delaying election returns 1429 false alarms of fire; interference with fire-alarm telegraph systems. 1424 industry ^dges, unauthorized use 1435 injuring highway boundary, pier, sea-wall, dock, rock, buoy, land- mark, mile-board, pipe, main, sewer, machine, telegraph, or other property 1423 injury to property, how punished 1433 interference with gas or electric meters or steam valves 1431 malicious injury to and destruction of property 1425 malicious injury to standing crops, when. a nusdemeanor 1426 military or naval property, damaging ; 1435 conspiracy 1436 penalties 1437 placing injurious substances on roads 1434 property in house of worship 1430 punishment for 14b3 removal of books and works of art from library; wilful injury to works of art, ornamental trees or other improvements 1427 unlawful interference with water meters, water service pipes and their connections 1432 wilful or malicious injury to certain articles in. libraries, galleries, museums, or exhibitions 1428 buying or receiving stolen or wrongfully acquired 1308 Manslaughter. See Abortion; Homicide; Suicide. Market Place, ^ ^ , circulating false rumors affecting, of bonds, stocEs, etc 826 Market Value. of thing stolen, how determined liiiJO 514 Indjix to Penal Law. Uaniage. sectioit by false personation 928 compulsory 532 solemnizing unlawful, is a misdemeanor 1450 seduction under promise or pretense of 2461 unlawfully solemnizing 1450 See Bigamy; Incest. Marriage License. unlawful procurement 1451 Married Women. presence of husband no defense 1092 as a witness against husband 2446 Masqnemdes. See Diaguiaea. Mayhem. M result of hazing 1080 Medical College. scientific experiment* with mimah. . . 18i Medicine. adulteration of 1748 peracriptions of opium and morphine. 1745 careless distribution of 1747 Meetings. disturbing lawful 1470 leaving State with intent to elude, etc 1471 witnesses' privilege 1472 religious, disturbance S07I See Anarchy, Merchandise. conversion when furnished for, for personal, trade or business uses. . 1310 framds in packing, so as to increase weight, how punished 434 offenses against marking, etc., on silver 422-429 " article of," defined 2352 fraudulent issue of documents of title to 361-3C7 making false or misleading statements relating to 978 See Dills of Lading, etc Messenger. of ambassadors, etc 26 Messenger Boys. penalty for sending, to certain places 488 Meter. gas, unlawful interference with 1431 Milch Cow. keeping in unhealthy place 192 See UOk. Milestone, of board, injury to ,. 1483 515 Index to Fenai. Law. Uilitaty. SEcnow converting military property 1484 depriving members of National Guard of employment 1480 discrimination against members of National Guard 1481 drugging person for enlistment 1482 failure to respond to military duty 1487 introduction of spirituous or malt liquors into arsenal or armory. . . 1483 property, damaging 1435 conspiracy 1436 penalties , 1437 seizing military stores belonging to t'ue State 1483 unlawfully exacting toll of a member of the National Guard 1486 ■unlawfully wearing uniform 1484 depriving members of National Guard of employment 1480 discrimination against member of National Guard 1481 county clerk falsely marking, person liable to, " exempt " 1858 unlawful use of name of military or naval organization 1484 See Badges. Uilk. selling or offering for sale skimmed 438 keeping animal giving, in unhealthy place 1U2 " impure and unwholesome " defined. . , 1S6 Mineral Water. using stamped bottles for, unlawfully 2355-2357 Mines. refusal to admit inspectors to...... 1270 Minor. how supported 4R2 marriage of 1450 to be sent to penitentiary, when 218(1 may be sent to Elmira Reformatory, when 2185 under 10, may be placed in charge of suitable person or institution. 2194 sale of firearms, etc, to ISUS See Sentence. Miscarriage. See Ahortion. Misdemeanor. all principals in • iociqI obtaining property or credit by false statement. l^swo Missile. ... 1001 injuring railway tram by ^^^ Monument. 1423 of boundary lines 1427 in cemetery Morphine. , , ^ j 1746 prescriptions of, regulated. Mortgage. ^ , 2033 on lands held adversely.....-; 040 Sell property subject to chattel __ ggg for money lost at gambhng '''''^:^^'^ll^ofc^nUreninu..^^nstlms ■■■ ^ exhibitiona on first day of week • Motor ve. iie3. See -auLomobiles. Municipal Corporation. 40 charte- of. net affected by Penal Law Murder. See Homicide. 516 Index to Pewal Ljlw. Museum. SECnoN malicious injury to articles in 1428 Name. attorney allowing use of his, and when allowed 277 action brought in another's 1785 fictitious, in copartnership 924 carry on business under an assumed 440 protection of benevolent, etc., corporations in use of corporate names. 948 Narcotic assaults, by administering 242 rape, by administering 2010 having possession of, with intent to administer 1752 National Guard. See Military. Natural Scenery. defacing 121 Naturalization. fraudulent certificate 777, 778 Naval. property, damaging 1435 conspiracy 1436 penalties 1437 KaTlgatioxu sound of exhaust on gasoline motor to be muffled 1500a, 1610 acting as port-warden without authority 1602 destroying invoice 150B fitting out or lading «ny vessel with intent to wreck the same 150T interfering with 1606 lights upon swing bridges 1504 making false manifest 1508 obstructing 1530 offenses against, law 1500 unlicensed piloting 1501 using net or weir unlawfully in Hudson river 1503 wilfully destroying vessel 1506 Hesotiable Instruments. notes given for patent rights 1520 a speculative consideration 1521 fraud in obtaining 937 false check or order 938 See Bills of Lading, etc.; Forgery; Larceny. Net. fishing with, in Hudson river 1503 Newspaper. libel of, general provisions regarding 1344 false information, furnishing to 1353 misrepresenting circulation of 946 solicitation of money from candidate 755 Inserting unauthorized advertisement* , 122 Wew York City. false certificate as to jurors in 1232 none but attorneys to be permitted to practice law in 187C New York County. perjury, drawing of jurors [23.T misconduct of trial jurors in 1235 when unlawful to practice law in 270 517 IiTDJi^ TO Penal Law. BECSnON Nitro-Glycerine. how to be kept 1894 Noiiresident. Hbel against 1347 provisions' of oyster planting, regarding 1650 Kuisances. building, permitting use of, for 1533 gambling apparatus 972 horse racing 987 maintaining 1532 opium smoking 1533 public defined 1530 ticket speculators, certain acts 1534 unequal damage 1531 use of building, permitting, for 1533 O. Oath. includes affirmation , 1021 irregularities in mode of administering, no defense 1621 Obscene Article. See Indecency. Officei. See Banking; Briberif and Corruption; OorporttUam; ForftUurt; " '' Public Office and Oficera. Oils. unauthorized manufacture oP iUuminatidg 190S Omission. See Act or Omission. Onondaga. injuries to salt works 2170 trespass on, reservation 1100, 1I6I Opeia. producing unpublished, undedicated, or copyrighted, without consent of owner , 441 Opium. permitting use of building for, smoking 1633 prescription of, regulated 1746 Oppression. by public officer ""^ Orchard. entering, with intent to take fruit, etc 14^o Order. obtaining money by fraudulent iia% . obtaining property by fraudulent I'^yj Overseers of Poor. to receive penalties for violation of law, when ^15^ to care for person of habitual criminal |021 recovery of priases in lotteries 13"* neglect of, to provide for bastards iS4-> Overt Act .„, in conspiracy Ownership. „„- of building in arson '''" 518 Index to Penai, Law. SECTION Oysters. nonre&'ident tnking or planting 1530 unlawful interference witli (6) 1423 use of certain dredges 1551 P. Paper. taking, opening, or publishing priTate 653 Parades and Processions. in cities, on Sunday 2151 Pardon. of habitual criminal, and conviction after 1022 of principal, effect of, on accessory 1934 Parent. correction of children by (3) 240 abandoning child 481 unlawfully omitting to provide for 482 Park. obstructing 1530 injuring animals in 1425 injuring flowers, etc., in 1427 Parole. of one sentenced fourth term (or felony 1942 Puties. to crime, how designated, defined, and punished 28 ParlAership. fictitious name by 924 fraud in alTairs of 920 Passage Tickets. advertising as agent, without written authorization; false or mis- leading information 1563 certain sales and exchanges of, prohibited 1561 " company," defined 1560 forgery of 801 i'>suance of order or other instrument securing passage by vessel from foreign port to this State ; what to contain 1564 larceny of 1292, 1295 oflices kept for unlawful sale of, are disorderly houses I5ti7 owners, pursers, and clerks allowed to sell 1568 punishment for violation of §§ 1583, 1504 1565 redemption of unused 1562 sale of, not filled out, a misdemeanor 1571 station masters, conductors, and agents allowed to sell 15B9 stolen, value of, how ascertained . .• 130t street surface railroad transfer tickets not to be given away or sold. 1566 What must be stated in 1570 soliciting surrender of 1572 Passsnger. refusal to carry 513 overloading vessel 1890 519 Index to Perai, Law. BBOnoH Patents. notes given for, rights 1520 Pawnbrokers. pawnbroking without a license 1690 refusing to exhibit stolen goods to owner 1591 selling Defore expiration of time to redeem 1592 Pawning. borrowed property 941 Peace Officer. agents and officers of certain societies are 196 powers and duties relative to children 490 special, to be citizens 1S45 Peddlers. unlicensed 1610 Pedigree. false, of animals. 033 Penal Law. acquittal or conviction bars indictment for another degree 32 acts punishable under foreign law 28 all principals in misdemeanors 27 ambassadors and foreign ministers exempted from punishment 25 application of, to prior ofTensea 3S construction, general rules of 21 construction of terms 3 civil remedies preserved ]••••• 24, 2502 civil rights and remedies not affected 23 Conviction must precede punishment 31 effect of 22 foreign conviction or acquittal a defense 33 jury to find the degree of a crime 30 limit of fine where statute does not specify amount 36 manner of prosecution and conviction 41 military punishments preserved 39 morbid criminal propensity no defense 34 objects of 20 omission to perform act not punishable if act is performed by an- other 35 penalty for acts for which no punishment is expressly prescribed . . 43 principal and accessory 26 proceedings to impeach preserved 37 repeals and amendments must be explicit 2500 rule when act done in defense of self or another 42 statutes, certain, continued in force 40 title • • • • : .l oi violation of statute which imposes no penalty is a misdemeanor. . . 29 Penitentiary. . .en furnishing tobacco to minors in *°^ communication with prisoners in *oai maintenance of inmate sentenced for felony ^J»^ sentence to, under section 320 of the prison law ^190 See Punishment; Sentence. People's Institute. ^„ tickets issued by, not transferable ^"' 520 Index to Pbnal Law. ■■onoir Peijvry and Subornation of Perjviy. bribery to commit 813 certificate, when making of deemed complete 1826 contradictory statements imder oath 1627 deposition, when making of, deemed complete 1625 documents necessary to prove, perjury may be detained 1630 incompetency of witness no defense 162:S interpreters, official, of city court of city of New York 1634 irregularities in the mode of administering oaths no defense 1621 making of deposition or certificate, when deemed complete 1625 oaths, irregularities in mode of administering, no defense 1621 official interpreters of city court of city of New York 1634 perjury, what constitutes 1620 punishment of perjury and subornation of perjury 1633 statement of that which one does not know to be true 1626 contradictory, under oath 1627 subornation of perjury defined 1632 summary committal of witnesses who have committed perjury.... 1628 swearing falsely in any form, perjury 1622 witness' knowledge of materiality of his testimony not necessary.. 1624 witnesses' testimony, use of 1631 -witnesses necessary to prove the perjury may be bound over to appear 1629 Pcrion. injury to, when maiming 1400 indecent exposure of 1140 act injurious to 43, 720 of habitual criminal 1021 Personating Officer. acts of one 1846, 1846 Petit Larceny. definition 1298 is a misdemeanor 1299 how punished 1299 conviction for crime after punishment, effect of 1941 Photographs. of prisoners, return of 516 Physician. causing death by reason of intoxication 1062 misconduct of veterinary surgeon 1762 practiciner without diploma 1762 acts of intoxicated 1761 use ,of certain instruments by, when lawful 1145 Pictures. lewd, indecent or immoral 1141 Pier or Pile. malicious injury to 1423 Pilot. tbrough Hell Oate, must have license 1501 except on coasting steamers ^ . ISOl Pipe- gas or water, injury to '; ; 1423 521 Index to irEi'Ai, Law. Pistol. See Fire Arras. Section. Platforms. on cars, construction of 1987 Pleading. alteration 2053 Pledging. borrowed property g4X of property received for transportation or storage 364 Poison. administering, assault in first degree 240 administering, by intoxicated physician 1761 mingling with food, drink, etc 1760 selling without labelling and recording sale 1743 penalty for violations of health law 1744 administering to animals, prohibited 190 Police Commissioner. license to carry concealed weapons 1897 misdemeanor by 753 Policy. keeping of place for game of, etc 974, 976 possession of slip, etc., presumptive evidence 975 Polling Places. political contributions by owners, prohibited 781a Fool Rooms. booth prohibited 835 Poolselling. bookmaking, etc "88 Poor Persons. unlawful removal of ^*'^" neglect of duty by superintendent 1843 See Overseer of Poor. Port Warden. acting as, without authority 1502 PoBsession. of dangerous weapons, effect of 1898 of counterfeiting implements, etc 887 :^^."'!"''^:.::.v.\;.v.v.v;;;;;.-.v;.v;;;;;;.v;;;.v.v.-.^i;^32 of burglar's instruments 408 Postage Stamps. forgery of •"*'= Premeditation. in killing, murder first degree i"« without second degree r '"*° Prescriptions. . j v- i-ta\ regulations as to, of opium and morphme = i<« Presumptions. of responsibilty for acts in general ••■••.• °^* of innocence of child under seven, absolute »oo child of age of seven and under twelve may commit crime 817 Of intent, in maiming • • •. publication of libei presumed malicious "*f reports of offieia! \