CHAPTER XIV. Powers of referees. SECTION 421. Referees authorized to administer oaths and to exercise powers now vested in referees by law. § 421. [382.] Referees authorized to administer oaths and to exercise powers now vested in referees by law. Every referee, appointed pursuant to this act, shall have power to administer oaths, in any proceeding before him, and shall have generally the powers now vested in a referee by law. Miscellaneous provisions. Papers lost or withheld, how supplied. 423. Where undertaking to be filed. 424. Judgment on bond and warrant of attorney, executed before July 1, 1848. 425. Time for publication of notices, how computed. 426. Laws of other States and other governments, how proved. § 422. Papers lost or withheld, how supplied. If an original pleading or paper be lost or withheld by any person, the court may authorize a copy thereof to be filed and used instead of the original. Note to § 416; Renouil v. Harris, 1 Code R. 125; S. C. again, 2 Sandf. 641; 2 Code R. 71. § 423. Where undertakings to be filed. The various undertakings required to be given by this act must be filed with the clerk of the court, unless the court expressly provides for a different disposition thereof, except that the undertakings provided for by the chap er on the claim and delivery of personal property, shall, after the justification of the sureties, be delivered by the sheriff to the parties respectively, for whose benefit they are taken. Note to § 222; Rules 5, 6, 7; 2 R. S. 190, §§ 149, 150, omitted from 4th ed. R. S., but said to be still in force. Cook v. Dickerson, 2 Sandf. 691; Wilde v. Joel, 15 How. 321; S. C. 6 Duer, 671. a. Undertaking, delivery of, power of court as to.-In an action upon an undertaking, when produced at the trial by the| plaintiff, the delivery of it to him by the sheriff, pursuant to section 423, will be presumed. Bowdoin v. Coleman, 3 Abb. 431; S. C. 6 Duer, 182, sub nom. Bowdoin v. Colman. Although, by the provisions of 2 R. S. 190, 195 (presumed to be in force), it is enacted that the chancellor shall direct the delivery of any bond, executed under the provisions of the article, to the person entitled to the benefit thereof, for prosecution, whenever the condition thereof shall be broken, or the circumstances of the case shall require such delivery; yet in these cases (Code, § 423), the court may refuse to direct the delivery of an undertaking on file. Wilde v. Joel, 15 How. 320; S. C. 6 Duer, 671. As the complaint may be drawn from a mere inspection of the same, and in case of dispute, on the trial, the clerk may be subpœnaed to produce it. Ib. 424. Judgment on bond and warrant of attorney, executed before July 1, 1848. Upon any bond and warrant of attorney executed and delivered before the first day of July, eighteen hundred and forty-eight, judgment may be entered in the manner provided by sections 382, 383, and 384, upon the plaintiff's filing such bond and warrant of attorney, and a statement signed and verified by himself, in the form prescribed by section 382. See Allen v. Smillie, 12 How. 156; S. C. 1 Abb. 354. § 425. Time for publication of notices, how computed. The time for publication of legal notices shall be computed so as to exclude the first day of publication and include the day on which the act or event, of which notice is given, is to happen, or which completes the full period required for publication. a. Notices, publication of, time, how computed.-The computation of time is made by excluding the first day of publication and including that which completes the full period required for publication. Brod v. Heymann, 3 Abb. N. S. 396. And a judg ment entered before the full lapse of such period and twenty days additional (for answering) is irregular. Ib. b. Proof of the publication of any notice or advertisement, which by law are required to be published in any newspaper of this State, may be made by the affidavit of the printer, or foreman of the printer of such newspaper. Laws of 1835, ch. 159. See ante, §§ 138, 407; Laws of 1859, ch. 252; Laws of 1869, ch. 831. § 426. (Am'd 1869.) Laws of other States and governments, how proved. Printed copies of statutes, code or other written laws, and of the proclamations, edicts, decrees and ordinances, by the executive power of any State or territory or foreign government, when printed in books or publications 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 courts and judicial tribunals of such State, territory or government, shall be admitted by the courts and officers of this State, on all occasions, as presumptive evidence of such laws, proclamations, edicts, decrees and ordinances. The unwritten or common law of any other State or territory or foreign government, may be proved as facts by parol evidence, and the books of reports of cases adjudged in these courts, may also be admitted as presumptive evidence of such law. a. Records of board of regents. Copies of and extracts from any and all records, books, papers, documents, files and manuscripts in the possession or custody of the regents of the university as such, or as trustees of the State library, or otherwise in their official capacity, and duly authenticated under the hand of the chancellor or secretary, and under the common seal of the said regents as a true copy of such original, may be used and read in evidence in all courts in this State with the same force and effect as the original. Laws of 1870, ch. 60. See Laws of 1835, p. 326; Laws of 1846, pp. 204, 303; Laws of 1858, pp. 498, 500; 6 Wend. 483; 2 id. 411; Dall. 412; 9 Cranch, 122 (n.); 1 Stark Ev. (ed. 1842), 232, note 2; 1 Phill. Ev. (Cow. & H. ed. 1843), 383; 3 id. 1056, note 708. b. Charter of the city of New York may be read as evidence from a volume printed by authority of the common council, whether it was printed prior or subsequent to the act of April 17, 1832. It may be so read on a trial involving the title to lands, the statutes making no distinction as to the purposes for which it may be read; but such proof is only prima facie. Howell v. Ruggles, 5 N. Y. (1 Seld.), 444. See Laws of 1832, page 251. c. Foreign laws are to be treated as facts. They must be alleged and proved like other facts, of which the court does not take judicial notice. Monroe v. Douglass, 5 N. Y. (1 Seld.), 447. See Laws of U. S. 102, § 1. d. Statute law of another State cannot be proved in this by parol. The proper method is the production of the printed volume, or by an exemplified copy. Toulandou v. Lachenmeyer, 6 Abb. N. S. 215; S. C. 37 How. 145; Jones v. Fowler, 1 Sweeny, 5. A printed statute book of a sister State, in order to be admissible as evidence, must purport to have been printed by authority of such State. Bright v. White, 8 Mo. R. 421. See Bailey v. Lincoln Academy, 12 id. 177. e. Public records of other States, how proved. See Markoe v. Aldrich, 1 Abb. 55. of 1858, pp. 498, 500. Morris v. Patchin, 24 N. Y. (10 Smith), 394. | patent may be proved by a constat or exemplification of the record. McKineron v. Bliss, 206, sub nom. McKinnon v. Bliss. As to the 31 Barb. 180; S. C. Aff'd, 21 N. Y. (7 Smith), proof of the incorporation of a foreign corporation, see Waterville Manufacturing Co. v. Brown, 9 How. 27. The records of courts in Canada. Lazier v. Westcott, 26 N. Y. (12 Smith), 146. The records of inferior courts. Simons v. De Bare, 4 Bosw. 547; S. C. 6 Abb. 188, sub nom. Simons v. De Barre; S. C. Aff'd, 8 Abb. 269. Corporation ordinances. People ex rel. Houston v. Mayor, etc. of New York, 7 How. 81; Logue v. Gillick, 1 E. D. Smith, 398. Records in supervisor's office. Laws of 1855, ch. 249, p. 383. Records in the office of collectors of customs. Laws of 1862, ch. 251, p. 450. Judgmen s of foreign f. Miscellaneous records. - A land | State. Black's Case, 4 Abb. 162. TITLE XIII. Actions in particular cases. Actions for the partition of real property. II. Actions in place of scire facias, quo warranto, and of informations in the nature of quo warranto. III. IV. Actions to determine conflicting claims to real propety, and for waste and nuisance. V. General provisions relating to actions concerning real property. CHAPTER I. Action against foreign corporations. § 427. Where ani by whom brought. An action against corporation, created by, or under the laws of any other State, govern nent, or country, may be brought in the supreme court, the superior cov.c of the city of New York, or the court of common pleas for the city and county of New York, in the following cases: ་ 1. By resident of this State, for any cause of action; 2. Py a plaintiff not a resident of this state, when the cause of action shall have arisen, or the subject of the action shall be situated within The State. a. Foreign corporations, actions against.-The Law of 1849, ch. 107, p. 142, which provides that "suits may be brought in the supreme court, in the superior court of the city of New York, and in the court of common pleas in and for the city and county of New York, against any corporation created by or under the laws of any other State, government or country, for the recovery of any debt or damages, whether liquidated or not, arising upon contract made, executed or delivered within this State, or upon any cause of action arising therein," is not repealed by the Code, and the courts, therefore, have jurisdiction of actions against foreign corporations in these cases. Jones v. Norwich and New York Transportation Co. 50 Barb. 194. Where a foreign corporation has appeared in an action in a court of this State, it is subject to the jurisdiction of the court to the same extent as a corporation created under the laws of this State; nor does its foreign origin prevent the bringing an action against it, for any cause, when the action can be brought within the jurisdiction of the court. Dart v. Farmers' Bank at Bridgeport, 27 Barb. 337. Although section 427 renders it essential to the jurisdiction of a court of this State over a foreign corporation, that either the plaintiff should be a resident of this State, or the cause of action should have arisen, or the subject of the action should be situated in it, yet it is not necessary, to the validity of the proceedings against a foreign corporotion, that proof of either of these facts should have been made previous to the commencement of proceedings. It is sufficient, if upon motion to set aside the proceedings, the facts necessary to sustain jurisdiction are shown. Bates v. New Orleans, Jackson and Great Northern Railroad Co. 4 Abb. 72; S. C. 13 How. 516. See Elizabethport Manufacturing Co. v. Campbell, 13 Abb. 86. The Law of 1845, ch. 234, p. 256, in relation to suits against foreign corporations, does not establish any new liability on the part of stockholders or debtors of such corporations, but only provides for subrogating the creditors of the corporation, proceeding against it by direct attachment in this State, to such rights as the corporation itself, under the local law, or the lex loci contractus might have enforced against the stockholder or debtor. Seymour v. Sturgess, 26 N. Y. (12 Smith), 134. b. Service of a summons on a president of a foreign corporation who happens to be temporarily in this State, and who does not voluntarily appear, does not give the court jurisdiction over the corporation, for the purpose of rendering personal judgment upon contracts made in this State, or for debts due to residents of this State. Such notice must be regarded as simply a statutory notice that proceedings are about to be instituted against defendant's property. Hulbert v. Hope Mutual Insurance Co. 4 How. 275; S. C. id. 415; 2 Code R. 148; Brewster v. Michigan Central Railroad Co. 5 How. 183; S. C. 3 Code R. 215. c. Attachment against, not to issue. In the superior court of the city of New York no attachment can issue against a foreign corporation unless there is an action regularly commenced. That can be by a resident for any cause of action; but to render the suit effectual, there must be property in, or the cause of action must have arisen in the State. McDonough v. Phelps, 15 How. 372; Eggleston v. Orange and Alexandria Railroad Co. 1 Code R. N. S. 212; Cantwell v. Dubuque Western Railroad Co. 17 How. 16. d. Right to sue in this State.-A foreign corporation has the same right as any other non-resident, to sue in this State, if the nature of the claim is such as should be enforced by a corporation; and as to suits against such corporation, except § 427, the provisions of the Code, and those of the Revised Statutes, make no distinction between a resident and a non-resident plaintiff. Bank of Commerce v. Rutland and Washington Railroad Co. 10 How. 1; S. C. affirmed, id. 10. But neither the Revised Statutes nor the Code authorize a foreign corporation to sue, by attachment, another foreign corporation in the courts of this State, unless the cause of action has arisen, or the subject thereof is situated, within this State. Western Bank v. City Bank of Columbus, 7 id. 238. e. Non-resident plaintiff may sue. To enable a non-resident plaintiff to maintain an action in a court of this State against a foreign corporation, it must appear either that the action is upon a contract made, executed or delivered in this State, or that the cause of action arose in, or that the subject thereof is situated in this State. Harriott v. New Jersey Railroad Co. 8 Abb. 284; S. C. 2 Hilt. 262; Cumberland Coal and Iron Co. v. Hoffman Steam Coal Co. 30 Barb. 159; 20 How. 62; S. C. 8 Abb. 249, sub nom. Cumberland Coal Co. v. Sherman. It seems, that where the cause of action arose, or the subject thereof is situated, within this State, the question of the defendant having property becomes immaterial, whether the plaintiff is a resident or not. Cumberland Coal Co. v. Sherman, 8 Abb. 243; S. C. 30 Barb. 159, sub nom. Cumberland Coal and Iron Co. v. Hoffman Steam Coal Co. f. Designating person to receive service of process-effect of. - The Law of 1855, ch. 279, requiring foreign corporations doing business in this State to designate a person to receive service of process, merely facilitates service, and does not give the court jurisdiction of cases not included in this and section 134. Cumberland Coal Co. v. Sherman, supra. g. Waiver of objection to jurisdiction.-A foreign corporation does not waive the objection of want of jurisdiction by appearing and answering. Harriott v. New Jersey Railroad Co. 8 Abb. 284; S. C. 2 Hilt. 262, sub nom. Harriott v. New Jersey Railroad and Transportation Co. h. Appearance of.-A corporation, by officers of the court, will be valid and give jurisdiction, whether the service of process upon its officers be good or not. Murray v. Vanderbilt, 39 Barb. 141. i. Costs. Where an action against a foreign corporation was dismissed for want of jurisdiction, and the question of jurisdiction was settled by an admission of the party in open court, judgment for costs on the dismissal was refused. Harriott v. New Jersey Railway Co. supra; ante, page 585, and contra, McMahon v. Mutual Benefit Life Insurance Co. 8 Abb. 297; S. C. 3 Bosw. 644. Where there is any question as to the power of the court to render judgment for costs, if it has in fact been entered by the clerk, the proper practice to bring up the question is by an appeal from the judgment. id. But such appeal does not confer a new jurisdiction. Harriot v. New Jersey Railroad Co. 8 Abb. 284; S. C. 2 Hilt. 262, sub nom. Harriott v. New Jersey Railroad and Transportation Co. j. Attachment against property of, in this State.-Where an attachment is issued against a foreign corporation, upon their property here by a non-resident plaintiff, in an action for alleged damages arising from a breach of a contract made out of this State, it cannot be sustained on the ground that the subject of the action is within this State, since the property levied on is not the subject of the action; therefore, in such case, the court has no jurisdiction. Whitehead v. Buffalo and Lake Huron Railway Co. 18 How. 218. So, where the demand on which the action was brought, arose upon written contracts for the payment of money, made, executed, delivered and made payable in Canada, and all the labor done and materials furnished were under these contracts on work located in Canada and for a corporation, under the laws of Canada, and existing there, except a small part which was performed in this State according to said contracts, held, that the subject of the action was not situated in this State, and that although defendant had property in this State liable to attachment, an attachment could not be sustained by a nonresident plaintiff. Campbell v. Champlain and St. Lawrence Railroad, 18 How. 412; S. C. Aff'd, id. 419. So, in an action on an award, it is the cause of action, and if made out of the State the cause of action arose out of the State. Ib. The Law of 1849, ch. 107, authorizes an attachment as a provisional remedy, under the Code, in an action on a policy of insurance issued in this State, although the case be not within this section. Burns v. Provincial Insurance Co. 13 Abb. 425; S. C. 35 Barb. 525. k. Action in this State between foreign corporations.-Where an action was commenced in this State, between two corporations (both created by the laws of Maryland), which related to lands situated in that State, and asked to annul, on the ground of fraud, a conveyance of such lands to the defendants, executed and recorded in Maryland, held, that the court had no jurisdiction of the case. Cumberland Coal and Iron Co. v. Hoffman Steam Coal Co. 30 Barb. 159; S. C id. 553, sub nom. Cumberland Coal and m. Pleadings.-In a suit by a foreign corporation, the complaint need not state the act of incorporation at large, or even the title of the act or grant, or the date of its passage. Holyoke Bank v. Haskins, 4 Sandf. 675. See, however, Connecticut Bank v. Smith, 9 Abb. 168; S. C. 17 How. 487; Marine and Fire Insurance Bank of Georgia v. Jauncey, 1 Barb. 487. The provisions of the Revised Satutes modifying the rule of pleadings does not apply to foreign corporations. Waterville Manufacturing Co. v. Bryan, 14 Barb. 182. And under a general denial by the defendant, a foreign corporation is bound to prove its corporate existence. Ib. In an action against a foreign corporation, the complaint should state whether the plaintiff is a resident or non-resident of this State, and it should appear that the cause of action has arisen, or that the subjeet of the action is situated, within this State. House v. Cooper, 16 How. 293; S. C. 30 Barb. 157. A complaint by the stockholders of a foreign corporation should allege that the directors refuse to bring the action. id. In an action against a foreign corporation for equitable relief, a claim for damages against individual defendants cannot be joined. House v. Cooper 30 Barb. 157; S. C. 16 How. 292. n. Limitations, statute of.-The statute of limitations is a good defense in behalf of a foreign corporation, in an action on contract. Olcott v. Tioga Railroad Co. 26 Barb. 147; S. C. Rev'd, 20 N. Y. (6 Smith), 210. As to the Buffalo and Lake Huron Railway Co., see Laws of 1858, ch. 121; Whitehead v. Buffalo and Lake Huron Railway Co 18 How. 218. |