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In what case appeal from an
trial to courts of appeals, On case made, or bill of
shall be cfiectual.
and abridge the practice, pleadings and proceedings of
Passed April 25, 1867. The People of the State of New York, represented in Seriate and Assembly, do enact as follows :
SECTION 1. The second subdivision of the eleventh section of an act entitled "An act to simplify and abridge the practice, pleadings and proceedings of the courts of this state." passed April twelfth, eighteen hundred and forty-eight, is hereby amended so as to read as follows:
2. In an order affecting a substantial right, made in such
action, when such order in effect determines the action and order granting a new prevents a judgment from which an appeal might be taken
or discontinues the action, and when such order grants or refuses a new trial; but no appeal to the court of appeals
from an order granting a new trial, on a case made or bill of exceptions, exceptions, shall be effectual for any purpose, unless the
notice of appeal contain an assent on the part of the appel
lant, that if the order be affirmed, judgment absolute shall When court be rendered against the appellant. Upon every appeal from
an order granting a new trial on a case made or on excepjudgment tions taken, if the court of appeals shall determine that no upon right error was committed in granting the new trial, they shall
render judgment absolute upon the right of the appellant ; and after the proceedings are remitted to the court from which the appeal was taken, an assessment of damages or other proceedings to render judgment effectual, may be then and there had, in cases where such subsequent proceedings are requisite.”
Ante, vol. 5, p. 4. S 2. Section eleven of said act is hereby amended by adding as subdivision four the following:
4. An appeal from any order to the court of appeals affecting peal to be a substantial right, arising upon any interlocutory proceeding,
or upon any question of practice in the action, may be heard as a motion, and noticed for hearing for any regular motion day of the court.
Ante, vol. 5, p. 4. $ 3. The fourteenth section of the said act is hereby amended so as to read as follows:
$ 14. The concurrence of five judges is necessary to pronounce a judgment. If five do not concur, the case must be reheard. But no more than two rehearings shall be had, and
of appeals to render
heard as a motion.
Number of judges whose concurrence is
actions are com
if on the second rehearing, five judges do not concur, the necessary judgment shall be affirmed. When five of the judges do not ment. concur, and a rehearing of the case is ordered, the judges when shall tile the opinions read by them with the reporter of the be filed with court, but such opinions shall not be published. No person and who to other than the judges of the court, the reporter of the court, to them. or the counsel or attorney of either of the parties to the action, shall have access to or a copy of the said opinions, but such counsel or attorney may bave access to and a copy thereof.
Ante, vol. 5, p. 5. $ 4. Subdivision four of section sixty-four of said act is hereby amended so as to read as follows:
4. The answer may contain a denial of the complaint, or What of any part thereof, and also a notice in a plain and direct answer, manner of any facts constituting a defense or counter-claim. contain.
Ante, vol. 5, p. 18. S 5. Section ninety-nine of said act is hereby amended so as to read as follows:
$99. An action is commenced as to each defendaut when when the summons is served on bim, or on a co-defendant, who is a joint contractor, or otherwise united in interest with him. menced. An attempt to commence an action is deemed equivalent to the commencement thereof within the meaning of this title, when the summons is delivered, with the intent that it shall be actually served, to the sheriff' or other officer of the county in wbich the defendants or one of them usually or last residled; or, if a corporation be defendant, to the sheriff or other officer of the county in which such corporation was established by law, or where its general business was transacted, or where it kept an office for the transaction of business.
Ante, vol. 5, p. 27. $ 6. Section one hundred of said act is hereby amended so as to read as follows:
$ 100. If, when the cause of action shall accrue against commenco any person, he shall be out of the state, such action may be actious cominenced within the terms herein respectively limited, after consumer the return of such person into this state; and if, after such the rtate, cause of action shall have accrued, such person shall depart from and reside out of this state, or remain continuously absent therefrom for the space of one year or more, the time of liis absence shall not be deemed or taken as any part of the time limited for the commencement of such action.
Ante, vol. 5, p. 28. $ 7. Section one hundred and eighteen of said act is hereby amended so as to read as follows:
§ 118. Any person may be made a defendant who has or Who may claims an interest in the controversy adverse to the plaintiff, defendantes or who is a necessary party to a complete determination or settlement of the questions involved therein; and in an action
sions allowed receivers of property of foreign corpora tions.
sion on matter of law for
to recover the possession of real estate, the landlord and tenant thereof may be joined as defendants; and any person
claiming title or a right of possession to real estate may be dered as made parties plaintiff or defendant, as the case may require, to any such action.
Ante, vol. 5, p. 32. $ 8. Subdivision four of section two hundred and forty-four
of said act is hereby amended so as to read as follows: Commis
4. In the cases provided in this Code and by special statutes, when a corporation has been dissolved, or is insolvent or in imminent danger of insolvency, or has forfeited its corporate rights; and in like cases, of the property within this state of foreign corporations. Receivers of the property within this state of foreign or other corporations shall be allowed such commissions as may be fixed by the court appointing them, not exceeding five per cent on the amount received and disbursed by them.
Ante, vol. 5, p. 67. $ 9. The first paragraph of section two hundred and sixtyeight is hereby amended so as to read as follows:
(1.) For the purposes of an appeal either party may except what time exception to a decision on a matter of law arising upon such trial within
ten days after notice in writing of the judgment, in the same
manner and with the same effect as upon a trial by jury; purposes provided, however, that where the decision filed under section
two hundred and sixty-seven does not authorize a final judgtaken, etc. ment, but directs further proceedings before a referee or
otherwise, either party may move for a new trial at general term, and for that purpose may, within ten days after notice of the decision being filed, except thereto and make a case or exceptions as above provided in case of an appeal.
Ante, vol. 5, p. 75. § 10. Section two hundred and eighty-two of said act is hereby amended so as to read as follows:
$ 282. Upon filing a judgment roll upon a judgment, diment rolt" recting in whole or in part the payment of money, it may be
docketed with the clerk of the county where the judgment
roll was filed, and in any other county upon the filing, with of money. the clerk thereof a transcript of the original “docket,' and
shall be a lien on the real property in the county where the same is docketed, of every person against whom any such judgment shall be rendered, and which he may have at the time of the docketing thereof in the county in which such real property is situated, or which he shall acquire at any time
thereafter, for ten years from the time of docketing the same judgment in the county where the judgment roll was filed. But the
time during which the party recovering or owning such judgment shall be or shall have been restrained from proceeding thereon by any order of injunction or other order, or by the
Effect of filing judg
on judgment directing payment
For how long a time
to be a lien,
operation of any appeal, shall vot constitute any part of the ten years aforesaid, as against the defendant in such judgment, or the party obtaining such orders or making such appeal, or any other person who is not a purchaser, creditor or mortgagee in good faith. But whenever an appeal from any When and judgment shall be pending, and the undertaking requisite to time judg. stay execution on such judgment shall have been given, and mentino the appeal perfected as provided in the Code, the court in real prowhich such judgment was recovered may, on special motion, after notice to the person owning the judgment, on such terms as they shall see fit, direct an entry to be made by the clerk on the docket of such judgment, that the same is “ cured on appeal,” and thereupon it shall cease during the pendency of said appeal to be a lien on the real property of the judgment debtor, as against purchasers and mortgagees in good faith.
Ante, vol. 5, p. 79. S 11. The first subdivision of section two hundred and pinety-two of said act, is hereby amended so as to read as follows:
1. When an execution against property of the judgment Proceed debtor, or any one of several debtors in the same judgment return of issued to the sheriff of the county where he resides or has a unsati-tied. place of business, or if he do not reside in the state, to the sheriff of the county where a judgement roll, or a transcript of a justice's judgment for twenty-five dollars or upward, exclusive of costs, is filed, is returned unsatisfied, in whole or in part, the judgment creditor, at any time after such return made, is entitled to an order from a judge of the court, or a county judge of the county to which the execution was issued, or a judge of the court of common pleas for the city and county of New York, when the execution was issued to such city and county, requiring such judgment debtor to appear and answer concerning his property before such judge at a time and place specified in the order, within the county to which the execution was issued. But in case of an order made by a justice of the supreme court, all subsequent proceedings shall be had before some justice in the judicial district where the judgment debtor resides, to be specified in the order.
Ante, vol. 5, p. 83. $ 12. Subdivision one of section three hundred and seven is hereby amended so as to read as follows:
1. To the plaintiff for all proceedings before notice of trial Certain in actions where judgment for failure to answer can be taken plaintif. without application to the court, fifteen dollars; where judgment can only be taken on such application, twenty-five dollars; for all proceedings after notice of and before trial, fifteen dollars, for each additional defendant served with process,
costs to the
not exceeding ten, two dollars, and for each necessary defendant in excess of that number, served with process, one dollar.
Ante, vol 5, p. 90. $ 13. Subdivision five, of section three hundred and seven, of said act is hereby amended so as to read as follows:
5. To either party on appeal, except to the court of appeals and except appeals in the cases mentioned in subdivisions one, three, four and five of section three hundred and fortypine, and except in cases mentioned in the second paragraph of section three hundred and fourty-four, before argument, twenty dollars; for argument, torty dollars; and the same costs shall be allowed to either party before argumert and for argument on application for judgment, upon special verdict, or upon verdict subject to the opinion of the court, or for a new trial on a case made, and in cases where exceptions are ordered to be heard in the first instance at a general term, under the provisions of section two hundred and sixty-five.
Ante, vol. 5, p. 90. S 14. Section three hundred and pinety-nine of said act is hereby amended, so as to read as follows:
$ 399. A party to an action or special proceeding in any party on his and all courts and before any and all officers and persons own behalf. acting judicially, may be examined as a witness on his own
behalf, or in behalf of any other party, conditionally on commission and upon the trial or hearing in the case, in the same manner and subject to the same rules of examination as any
other witness; provided, however, that no party to the action be examin. or proceeding, nor any person who has a legal or equitable
interest which may be affected by the event of the action or proceeding, nor any person who, previous to such examination, has had such an interest, however the same may have been transferred to or come to the party to the action or proceeding, vor any assignor of anything in controversy in the action, shall be examined in regard to any transaction or communication between such witness and a person, at the time of such examination, deceased, insane or lunatic, as a witness against a party then prosecuting or defending the action as executor, administrator, heir at law, next of kin, assignee, legatee, devisee or survivor of such deceased person, or as assignee or committee of such insane person or lunatic, when such examination or any judgment or determination in such action or proceeding, can in any manner affect the interest of such witness or the interest previously owned or represented by him. But when such executor, administrator, heir at law, next of kin, assignee, legatee, devisee, survivor or committee, shall be examined on his own behalf in regard to such transaction or communication, or the testimony of such deceased or insane person or lunatic in regard to such transaction or communication (however the same may have been perpetuated or made competent), shall be given in evi