When the case on appeal shall have been heard and decided at the general term, upon the report of the referee and exceptions, without a case containing the evidence, the decision may be reviewed in like manner on appeal to the court of appeals. If the judgment be reversed at the general term, and a new trial ordered, it shall not be deemed to have been reversed on questions of fact, unless so stated in the judgment of reversal; and in that case the question whether the judgment should have been reversed, either upon questions of fact or of law, shall be open to review in the court of appeals. Amended by Laws of 1851, ch. 479; 1852, ch. 392; 1857, ch. 723; 1859, 22 N. Y., 570; 20 N. Y., 252; 13 N. Y., 308, 346; 12 N. Y.. 558, 588; CHAP. XI. referees. $273. In all cases of reference the parties as to whom issues Appoint are formed in the action (except when the defendant is an in- ment of fant or an absentee) may agree in writing upon a person or persons, not exceeding three, and a reference shall be ordered to him or them, and to no other person or persons. And if such parties do not agree, the court shall appoint one or more referees, not more than three, who shall be free from exception. And no person shall be appointed referee to whom all parties in the action shall object, except in actions for divorce. And no judge or justice of any court shall sit as referee in any action pending in the court of which he is judge or justice, and not already referred, unless the parties otherwise stipulate. The referee or referees shall make and deliver a report within sixty days from the time the action shall be finally submitted; and in default thereof, and before the report is delivered, either party may serve notice upon the opposite party that he elects to end the reference; and thereupon the action shall proceed as though no reference had been ordered, and the referees shall not in such case be entitled to any fees. Amended by Laws of 1851, ch. 479; 1862, ch. 460; 1863, ch. 392; 1866, ch. 824. 16 B., 579; 5 How. P. R., 341; 28 How. P. R., 391; 26 How. P. R., CHAPTER VI. MANNER OF ENTERING JUDGMENT. SEc. 274. Judgment may be for or against any of the parties. 275. The relief to be awarded to the plaintiff. 276. Rate of damages, where damages are recoverable. 277. Judgment in action for recovery of personal property. 278. Judgment upon issue of law or of fact, to be upon direction of a single judge, or on report of referees, subject to review at general term. PART III. Judgment may be for or against any of the parties. Actions against married women. The relief to be awarded to the plaintiff. Rate of damages where damages recoverable. Judgment in action SEC. 279. Clerks to keep a judgment book. 280. Judgment to be entered in judgment book. 281. Judgment roll. 282. Judgment, in what cases, and how to be docketed. $274. Judgment may be given, for or against one or more of several plaintiffs, and for or against one or more of several defendants, and it may determine the ultimate right of the parties on each side, as between themselves, and it may grant to the defendant any affirmative relief to which he may be entitled. In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment may be proper. The court may also dismiss the complaint with costs, in favor of one or more defendants, in case of unreasonable neglect on the part of the plaintiff to serve the summons on other defendants, or to proceed in the cause against the defendant or defendants served. In an action brought by or against a married woman, judgment may be given against her, as well for costs as for damages, or both for such costs and for such damages, in the same manner as against other persons, to be levied and collected of her separate estate, and not otherwise. And in any proceeding to enforce such judgment, the supreme court shall have jurisdiction, though the amount be less than one hundred dollars. Amended by Laws of 1852, ch. 392; 1862, ch. 460. 12 N. Y., 165; 11 N. Y., 143, 301; 28 B., 666; 25 B., 215; 23 B., 262; 263; 22 B, 370, 536, 650; 20 B., 339, 342; 18 B, 597; 17 B., 105, 426; 16 B., 42, 292, 328; 15 B., 369, 525; 12 B., 119; 8 B., 656, 666; 20 How. P. R., 151, 195; 14 How. P. R., 95, 360; 10 How. P. R., 508; 9 How. P. R., 361; 8 How. P. R., 66, 153, 454; 7 How. P. R., 327, 6 How. P. R., 50, 259, 405; 5 How. P. R., 302; 4 How. P. R., 73, 306; 11 Ab., 246; 10 Ab., 385; 9 Ab., 18, 417; 8 Ab., 75; 7 Ab., 261; 6 Ab., 68; Ab, 60; 4 Ah., 367; 1 Ab., 2. 48, 141; 28 N. Y., 174, 246; 25 N. Y., 269, 310; 43 B., 263; 42 B., 438; 40 B., 217; 35 B., 72; 19 Ab, 98; 16 Ab., 124. 353; 30 How. P. R., 443; 26 How. P. R., 30; 25 How. P. R., 94, 338. S275. The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint; but in any other case, the court may grant him any relief consistent with the case made by the complaint and embraced within the issue. 20 N. Y., 64; 12 N. Y., 341; 32 B., 206; 30 B.. 340; 23 B., 190; 26 B., 360; 23 B., 555; 20 B., 121; 14 How. P. R., 385, 454; 11 How. P. R., 131; 7 How. P. R., 420, 478; 12 Ab, 333; 11 Ab, 233, 246; 7 Ab., 199; 4 Ab., 180; 3 Ab., 401; 2 Hilt., 538; 3 Bos., 250; 38 B., 13; 19 Ab., 452; 31 How. P. R., 499. $276. Whenever damages are recoverable, the plaintiff may claim and recover, if he show himself entitled thereto, any rate of damages which he might have heretofore recovered for the same cause of action. 31 B., 65; 10 Ab., 20. $277. In an action to recover the possession of personal for recov property, judgment for the plaintiff may be for the posses CHAP. XL ery of sion, or for the recovery of possession, or the value thereof, 22 N. Y., 426; 9 N. Y., 473, 562; 27 B., 484; 23 B.. 240; 16 B., 314; how $278. Judgment upon an issue of law, or of fact, or upon Judgment confession, or upon failure to answer (except where the clerk "pon issue, is authorized to enter the same by the first subdivision of entered. section two hundred and forty-six, and by section three hundred and eighty-four, and except where it may be given at the general term as provided in section two hundred and sixty-five), shall in the first instance be entered upon the direction of a single judge, or report of referees, subject to review at the general term, on the demand of either party, as herein provided. Amended by Laws of 1851, ch. 479; 1852, ch. 392. 27 B., 192; 8 B., 574; 20 How. P. R., 258; 16 How. P. R., 538; 9 How. a $279. The clerk shall keep among the records of the court, Clerk to a book for the entry of judgments, to be called the "judg-judgment ment book." 23 B., 248; 16 B., 659; 8 Ab., 300; 29 How. P. R., 333. book. $280. The judgment shall be entered in the judgment Judgment book, and shall specify clearly the relief granted, or other to be n determination of the action. 16 B., 659; 6 How. P. R., 226; 8 Ab., 300, 315; 4 Ab., 92; 3 Bos., 644. tered in judgment book. $281. Unless the party or his attorney shall furnish a Judgment judgment roll, the clerk, immediately after entering the roll. judgment, shall attach together and file the following papers, which shall constitute the judgment roll: 1. In case the complaint be not answered by any defendant, the summons and complaint, or copies thereof, proof of service, and that no answer has been received, the report, if any, and a copy of the judgment. 2. In all other cases the summons, pleadings or copies thereof, and a copy of the judgment, with any verdict or report, the offer of the defendant, exceptions, case, and all orders and papers in any way involving the merits, and necessarily affecting the judgment. Amended by Laws of 1851, ch. 479; 1852, ch. 392. 22 B., 323; 16 B., 659; 20 How. P. R., 258; 15 How. P. R., 422; 11 $282. Upon filing a judgment roll upon a judgment, di- Judgment, recting in whole or in part the payment of money, it may be cases and in what PART III how to be docketed with the clerk of the county where the judgment roll was docketed. filed, and in any other county, upon the filing with 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 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 in the county where the judgment roll was filed, but during which the party recovering or owning such judgment, shall be or shall have been restrained from proceeding thereon by an order of injunction or other order or by the operation of any appeal, shall not 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 judgment shall be pending, and the undertaking requisite to stay execution on such judgment shall have been given, and the appeal perfected as provided in the Code, the court in which 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 "secured 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. Execution within five years, of As amended by Laws of 1851, ch. 479; 1867, ch. 781. 16 B., 660; 9 How. P. R., 86; 8 Ab., 162; 6 Ab., 72; 4 Ab., 271; 3 Ab., 231; 2 Ab., 409; 1 Ab., 135; 28 How. P. R., 7; 26 How. P. R., 183; 25 How. P. R., 384. TITLE IX. OF THE EXECUTION OF THE JUDGMENT IN CIVIL ACTIONS. II. Proceedings supplementary to the execution. CHAPTER I. THE EXECUTION. SEC. 283. Execution within five years, of course, as prescribed by this title. 285. Other judgments, how enforced. 286. The different kinds of execution. 287. To what counties execution may be issued. 288. Execution against the person, in what cases, and when. 289. Form of the execution. 290. To be returnable in sixty days. 291. Existing laws relating to execution continued, until otherwise provided. § 283. Writs of execution for the enforcement of judgments as now used are modified in conformity to this title, and the party in whose course, as favor judgment has been heretofore or shall hereafter be given, and prescribed by this in case of his death, his personal representatives duly appointed may, title. at any time within five years after the entry of judgment, proceed to enforce the same as prescribed by this title. As amended by Laws of 1866, ch. 824. After five years to be 18 N. Y., 153; 30 B., 506; 14 How. P. R., 393; 4 How. P. R., 100, 101; 3 How. P. R., 369; 13 Ab., 412; 3 Ab., 140, 230; 2 Ab, 118; i Ab., 135. $284. After the lapse of five years from the entry of judgment, an Issued by execution can only be issued by leave of the court, upon motion, with personal notice to the adverse party, unless he be absent or non-resident, leave of court. CHAP. IX. or cannot be found to make such service, in which case such service may be made by publication, or in such other manner as the court shall direct. Such leave shall not be given, unless it be established by the Leave, how oath of the party, or other satisfactory proof, that the judgment or some part thereof remains unsatisfied and due. But the leave shall not be necessary when execution has been issued on the judgment within the five years, and returned unsatisfied in whole or in part. obtained. on judg. When judgment shall have been rendered in a court of justice of Execution the peace, or in a justices' or other inferior court in a city, and docketed ment of in the office of the clerk of the county, the application for leave to other infe issue execution must be to the county court of the county where the rior courts judgment was rendered, or in the city and county of New York, the eted, how court of common pleas of that city and county. Amended by Laws of 1851, ch. 479; 1858, ch. 306. 18 N. Y., 153; 13 How. P. R., 178, 572; 12 How. P. R., 440; 4 How. when dock issued. enforced. § 285. Where a judgment requires the payment of money or the de- Other judg livery of real or personal property, the same may be enforced in those ments, how respects by execution, as provided in this title. Where it requires the performance of any other act, a certified copy of the judgment may be served upon the party against whom it is given, or the person or officer who is required thereby, or by law, to obey the same, and his obedience thereto enforced. If he refuse he may be punished by the court as for a contempt. 9 How. P. R., 149; 1 Ab., 279; 14 Ab., 188; 24 How. P. R., 434. of execu § 286. There shall be three kinds of execution: one against the prop- The differerty of the judgment debtor; another against his person; and the third ent kinds for the delivery of the possession of real or personal property, or such tions. delivery with damages for withholding the same. They shall be deemed the process of the court, but they need not be sealed or subscribed, except as prescribed in section 289. issue to what 9 N. Y., 209; 30 B., 506; 13 Ab., 412; 29 N. Y., 489; 35 B., 447. § 287. When the execution is against the property of the judgment Executions debtor, it may be issued to the sheriff of any county where the judgment is docketed. When it requires the delivery of real or personal counties. property, it must be issued to the sheriff of the county where the property, or some part thereof, is situated. Executions may be issued at the same time to different counties. Real property adjudged to be sold must be sold in the county where it lies, by the sheriff of the connty, or by a referee appointed by the court for that purpose, and thereupon the sheriff or referee must execute a conveyance to the purchaser, which conveyance shall be effectual to pass the rights and interests of the parties adjudged to be sold. against An execution may issue against a married woman, and it shall direct Executions the levy and collection of the amount of the judgment against her, married from her separate property, and not otherwise. Amended by Laws of 1851, ch. 479; 1852, ch. 392; 1862, ch. 460. women. person, in and when. § 288. If the action be one in which the defendant might have been Execution arrested, as provided in section 179 and section 181, an execution against the against the person of the judgment debtor may be issued to any what cases county within the jurisdiction of the court, after the return of an execution against his property unsatisfied in whole or in part. But no exccution shall issue against the person of a judg- Execution ment debtor, unless an order of arrest has been served, as in against the person. |