Слике страница
PDF
ePub

PART III.

Entry of judgment

relating to

tent in records of commis

land office.

S446. Such secretary shall thereupon, if the record relates to letters patent, make an entry in the records of the commisletters pa- sioners of the land office, of the substance and effect of such judgment, and of the time when the record thereof was sioners of docketed, and the real property granted by such letters patent, may thereafter be disposed of by such commissioners, in the same manner as if such letters patent had never been issued. S447. Whenever by the provisions of law, any property, property to real or personal, shall be forfeited to the people of this state, or to any officer for their use, an action for the recovery of such property, alleging the grounds of the forfeiture, may be brought by the proper officer, in the supreme court.

Actions for forfeiture of

the people.

Provisions

Statutes,

CHAPTER III.

ACTION FOR THE PARTITION OF REAL PROPERTY.

SEC. 448. Provisions of Revised Statutes, applicable to actions for partition.

S448. The provisions of the Revised Statutes relating to of Revised the partition of lands, tenements and hereditaments, held or possessed by joint tenants or tenants in common shall apply to actions for such partition brought under this act, so far as the same can be so applied to the substance and subject matter of the action, without regard to its form.

applicable to actions for partition.

Actions to determine claims to real pro

22 B., 367; 11 Ab., 455; 2 Ab., 7, 17.

CHAPTER IV.

ACTIONS TO DETERMINE CONFLICTING CLAIMS TO REAL PROPERTY, AND
FOR WASTE AND NUISANCE.

SEC. 449. Actions to determine claims to real property, how prosecuted.

450. Action of waste abolished. Waste, how remediable.

451. Provisions of Revised Statutes applicable to actions for waste, under this act. 452. When judgment of forfeiture and eviction to be given.

453. Writ of nuisance abolished.

454. Remedy for injuries heretofore remediable by writ of nuisance.

$449. Proceedings to compel the determination of claims to real property, pursuant to the provisions of the Revised perty, how Statutes, may be prosecuted by action under this act, without prosecuted. regard to the forms of the proceedings as they are prescribed by those statutes.

Actions

of waste abolished.

remediable.

24 B., 410; 18 B., 332; 5 How. P. R., 372; 42 B., 304; 38 B., 95; 25 How. P. R., 289. Made applicable to married women by Laws of 1864, ch. 219. Post, vol. 6, p. 243.

$450. The action of waste is abolished, but any proceeding heretofore commenced, or judgment rendered or right acquired, Waste, how shall not be affected thereby. Wrongs heretofore remediable by action of waste, are subjects of action as other wrongs, in which action there may be judgment for damages, forfeiture of the estate of the party offending, and eviction from the premises. 26 B., 413; 22 B., 367; 11 B., 598; 25 N. Y., 257.

Provisions of Revised Statutes

S451. The provisions of the Revised Statutes relating to the action of waste shall apply to an action for waste, brought to action for under this act, without regard to the form of the action, so far as the same can be so applied. 26 B., 413; 25 N. Y., 257.

applicable

waste under this act.

CHAP. XI.

When

forfeiture

S452. Judgment of forfeiture and eviction shall only be given, in favor of the person entitled to the reversion, against Judgment of the tenant in possession, when the injury to the estate in and evicreversion shall be adjudged in the action to be equal to the given. value of the tenant's estate, or unexpired term, or to have been done in malice.

26 B., 413.

tion to be

nuisance

S 453. The writ of nuisance is abolished; but any proceed- Writ of ing heretofore commenced, or any judgment rendered, or abolished. right acquired, shall not be affected thereby.

24 B., 410; 22 B., 367; 16 B., 568; 39 B,, 402; 25 How. P. R., 289.

for injuries

$ 454. Injuries heretofore remediable by writ of nuisance, Remedy are subjects of action, as other injuries, and in such action heretofore there may be judgment for damages, or for the removal of the by writ of nuisance, or both.

24 B., 410; 16 B., 565; 39 B., 402.

CHAPTER V.

GENERAL PROVISIONS RELATING TO ACTIONS CONCERNING REAL

PROPERTY.

SEC. 455. Provisions of Revised Statutes applicable thereto.

remediablo

nuisanco.

of Revised

$455. The general provisions of the Revised Statutes re- Provisions lating to actions concerning real property, shall apply to Statutes actions brought under this act, according to the subject matter thereto. of the action, and without regard to its form.

23 B., 235; 22 B., 362; 21 B., 265; 18 B., 499; 14 How. P. R., 440; 13
How. P. R., 37; 12 How. P. R., 402; 4 Ab., 308; 43 B., 263; 25
How. P. R., 289.

TITLE XIV.

PROVISIONS RELATING TO EXISTING SUITS.

SEC. 456. Appeal from order at a special term, on a summary application, after judgment. 457. Writ of error in all cases abolished. Appeal substituted.

458. Execution when issuable on a judgment docketed before July 1, 1848.

459. Future proceedings, Code to control.

460. Appeals from final decrees, by a single judge, in supreme court, in suits. in equity pending on July 1, 1847, when to be taken.

applicable

from order

term, on

461. Issues of fact in county court or common pleas before July 1, 1848, how tried. $456. The appeal, mentioned in section 9, of the act to Appeal facilitate the determination of existing suits in the courts of at a special this state, may also be taken, from an order, made at a spe- summary cial term, on a summary application in an action after judg- after judg ment, when such order involves the merits of the application, ment. or some part thereof.

application

error in all

lished.

tituted.

Appeal sub

$457. No writ of error shall be hereafter issued, in any Writ of case whatever. Wherever a right now exists to have a re- cases aboview of a judgment rendered, or order or decree made before the first day of July, 1848, such review can only be had upon an appeal taken in the manner provided by this act, and all appeals heretofore taken from such judgments, orders or decrees under the provisions of the Code of Procedure, which are still pending in an appellate court, and not dismissed,

PART III.

Execution when issuable on a

judgment docketed

shall be valid and effectual. But this section shall not extend the right of review, to any case or question to which it does not now extend, nor the time for appealing, nor shall it apply to a case where a writ of error has been already issued.

S458. An execution may be issued without leave of the court upon a judgment docketed before the first day of July, 1848, or now or hereafter to be rendered in an action pending before July on that day, at any time within five years after rendering of the judgment.

1, 1849.,

Future pro

ceedings, Code to

control.

Appeals from final

in equity

ing on July 1, 1847, when and

how taken.

$459. The provisions of this act apply to future proceedings in actions or suits heretofore commenced and now pending, as follows:

1. If there have been no pleading therein, to the pleadings and all subsequent proceedings;

2. When there is an issue of law or of fact, or any other question of fact to be tried, to the trial and all subsequent proceedings;

3. After a judgment or order, to the proceedings to enforce, vacate, modify or reverse it, including the costs of an appeal. Whenever the judges of the supreme court in any district find that the court, at any term or circuit, has not been, or will not be able to dispose of all the cases upon the calendar, they may request the governor to assign other judges, and, if necessary, appoint extraordinary terms and circuits for the purpose of disposing of such cases. The governor may thereupon make such assignment, and the judges assigned must hold courts accordingly.

As amended by Laws of 1851, ch. 479.

19 B., 531; 14 B., 570; 13 B., 92; 14 How. P. R., 187; 4 Ab., 359; 2 Ab., 163; 1 Ab., 119, 181.

S460. An appeal may be taken from any final decree decrees by a entered upon the direction of a single judge, in any suit in. single judge equity pending in the supreme court, on the first day of July, suits pend- one thousand eight hundred and forty-seven, at any time before the first day of November, one thousand eight hundred and fifty-two. But this provision shall not apply to cases where a rehearing has already been had or ordered, or to the case of a decree entered before the passage of this act, and to review which no attempt in good faith has been, or shall have been, made within thirty days after notice of the entry of such decree. Such appeal shall be taken in the manner provided in sections three hundred and twenty-seven and three hundred and forty-eight.

In all cases of appeal to the court of appeals, in actions which were originally commenced in the late court of chancery of this state, the court of appeals shall review the cause upon the facts and the law, without any statement or specification of facts found, or any exception taken, at the trial of any or either of them. And it shall be, and is hereby declared to be

the duty of the court of appeals, in any and all such cases, to CHAP. XL review the whole matter upon the evidence as well as the law.

As amended by Laws of 1851, ch. 479; 1852, ch. 392; 1858, ch. 306.
19 N. Y., 530; 10 N. Y., 389; 4 How. P. R., 145; 28 N. Y., 108.

fact in

county

court or common

$461. An issue of fact joined in a county court, or court of Issue of common pleas, before the first day of July, one thousand eight hundred and forty-eight, or then pending in that court on appeal, shall be tried by a jury, unless the parties other wise agree.

TITLE XV.

GENERAL PROVISIONS.

SEC. 462. Definition of "real property."
463. Definition of "personal property."
464. Definition of "property."
465. Definition of "district."

466. Definition of "clerk."

467. Rule of strict construction of statutes inapplicable to this act. 468. Statutory provisions inconsistent with this act repealed,

469. Rules and practice inconsistent with this act abrogated.

470. Judges of supreme court to make general rules.

471. This act not to affect certain proceedings and statutory provisions. 472. Certain parts of revised and other statutes not repealed.

473. This act, when to take effect.

pleas, be

fore July 1, 1848, how tried.

$462. The words "real property," as used in this act are Definition co-extensive with lands, tenements and hereditaments.

9 N. Y., 148; 2 Ab., 235.

of "real property."

of "

per

$463. The words "personal property," as used in this act, Definition include money, goods, chattels, things in action, and evi- sonal prodences of debt.

9 N. Y., 148; 2 Ab., 234.

perty."

$ 464. The word "property," as used in this act, includes Definition property real and personal.

of "property."

9 N. Y., 148; 30 B., 61; 12 Ab., 60; 10 Ab., 88; 2 Ab., 234, 247. $465. The word "district," as used in this act, signifies Definition judicial district, except when otherwise specified.

of "district."

of "clerk."

$ 466. The word "clerk," as used in this act, signifies the Definition, clerk of the court where the action is pending, and in the supreme court, the clerk of the county mentioned in the title of the complaint, or in another county to which the court may have changed the place of trial, unless otherwise specified.

6 How. P. R., 191.

$ 467. The rule of common law, that statutes in derogation of that law are to be strictly construed, has no application to this act.

Rule of struction of

strict con

statutes, inapplicable to this act.

16 B., 510; 38 R., 421. $468. All statutory provisions inconsistent with this act, Statutory provisions are repealed; but this repeal shall not revive a statute or law consist which may have been repealed or abolished by the provisions ent with hereby repealed. And all rights of action given or secured by repealed. existing laws, may be prosecuted in the manner provided by this act. If a case shall arise in which an action for the

this act

PART III.

Rules and practice in

with this

enforcement or protection of a right, or the redress or prevention of a wrong, cannot be had under this act, the practice heretofore in use may be adopted so far as may be necessary to prevent a failure of justice.

19 N. Y., 492; 22 B., 367; 15 B., 604; 19 How. P. R., 565; 15 How. P. R., 226; 13 How. P. R., 131; 8 How. P. R., 526; 5 How. P. R., 126; 12 Ab., 182, 389; 11 Ab., 227; 1 Ab., 455; 31 How. P. R., 499; 30 How. P. R., 211; 25 How. P. R., 182.

$469. The present rules and practice of the courts, in civil Consistent actions, inconsistent with this act, are abrogated; but where consistent with this act, they shall continue in force subject to the power of the respective courts to relax, modify or alter the same.

act abro

gated.

Judges of

what court rules, and

to make

when.

This act not to affect

ceedings and statutory provisions.

10 N. Y., 503; 8 B., 657; 14 How. P. R., 95; 12 How. P. R., 156; 10 How. P. R., 85; 13 Ab., 423; 12 Ab., 182; 9 Ab., 103; 7 Ab., 72, 94, 362; 6 Ab., 69; 4 Ab., 59, 250; 1 Ab., 2, 263, 357, 455; 16 Ab., 271.

S 470. The judges of the supreme court, of the superior court of the city of New York, and of the court of common pleas of the city and county of New York, shall meet in general session at the capital in the city of Albany, on the first Wednesday in August, one thousand eight hundred and fifty-two, and every two years thereafter, and at such sessions shall revise their general rules and make such amendments thereto, and such further rules not inconsistent with this Code as may be necessary to carry it into full effect. The rules so made shall govern the supreme court, the superior court of the city of New York, the court of common pleas for the city and county of New York, and the county courts, so far as the same may be applicable.

As amended by Laws of 1851, ch. 479; 1852, ch. 392. 19 B., 591; 8
B., 354, 657; 17 How. P. R., 383; 6 How. P. R., 50; 10 Ab., 360.

S471. Until the legislature shall otherwise provide, the certain pro- second part of this act shall not affect proceedings upon mandamus, or prohibition; nor appeals from surrogates' courts; except that the costs on such appeal shall be regulated and allowed in the manner provided in section 318 of this act; nor any special statutory remedy not heretofore obtained by action; nor any existing statutory provisions relating to actions not inconsistent with this act, and in substance applicable to the actions hereby provided; nor any proceedings provided for by chapter five of the second part of the Revised Statutes, or by the sixth and eighth titles of chapter five of the third part of those Statutes, or by chapter eight of the same part, excluding the second and twelfth titles thereof, or by the first title of chapter nine of the same part; except that when in consequence of any such proceeding, a civil action shall be brought, such action shall be conducted in conformity to this act; and except, also, that where any particular provision of the titles and chapters enumerated in this section shall be plainly inconsistent with this act, such provision shall be deemed repealed. In actions or proceedings by mandamus, amendments of any mistakes in the process, pleadings

« ПретходнаНастави »