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Mr. T. Murphy moved that said bill be referred to the first committee of the whole.
The President put the question whether the Senate would agree to said motion, and it was decided in the negative, two-thirds of all the Senators present not voting in favor thereof.
Mr. T. Murphy offered the following resolution:
Resolved, That the committee on internal affairs of towns and counties, bé instructed to report at or before two o'clock this afternoon, the Assem bly bill entitled “An act to amend an act entitled 'An act to regulate the sale of intoxicating liquors within the Metropolitan Police district.'" Mr. O'Donnell moved to amend by striking out the word "two" and inserting "four."
Pending the question,
The President announced, pursuant to joint rule, the third reading of bills.
Mr. Folger, from the conference committee, reported as follows: To the Honorable the Senate and Assembly:
Your committee of conference on the matters in difference between the Senate and Assembly in regard to Assembly bill No. 988, entitled "An act to amend an act entitled 'An act to simplify and abridge the prac tice, pleadings and proceedings of the courts of this State,' passed April 12, 1848," respectfully report that they have agreed upon, and that they recommend the passage of the following bill:
AN ACT to amend an act entitled "An act to simplify and abridge the practice, pleadings and proceedings of the courts of this State," passed April 12, 1848.
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
SECTION 1. The second subdivision of the eleventh section of the act entitled "An act to simplify and abridge the practice, pleadings and proceedings of the courts of this State known as the Code of Procedure," passed April 12, 1848, 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 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, shall be effectual for every purpose, unless the notice of appeal contain an assent on the part of the appellant, that if the order be affirmed, judgment absolute shall be rendered against the appellant. Upon every appeal from an order granting a new trial on a case made or on exceptions taken, if the Court of Appeals shall determine that no error was committed in granting the new trial, they may render judg ment 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 the judgment effectual, may be then had, in cases where such subsequent proceedings are requisite."
§ 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 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."
§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 if, on the second rehearing, five judges do not concur, the judgment shall be affirmed. When five of the judges do not concur, and a rehearing of the case is ordered, the judges shall file the opinions read by them, with the reporter of the court, but such opinions shall not be published. No person other than the judges of the court, the reporter of the court, 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 have access to, and a copy thereof."
§ 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 of any part thereof, and also a notice in a plain and direct manner of any facts constituting a defense or counter-claim."
§ 5. Section ninety-nine of said act is hereby amended so as to read as follows:
"§ 99. An action is commenced as to each defendant when the summons is served on him, or on a co-defendant, who is a joint contractor, or otherwise united in interest with him. 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 which the defendants or one of them usually or last resided; 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."
§ 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 any person, he shall be out of the State, such action may be commenced within the terms herein respectively limited, after the return of such person into this State; and, if, after such 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 his absence shall not be deemed or taken as any part of the time limited for the commencement of such action"
§ 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 claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein; and in an action 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 made parties plaintiff or defendant, as the case may require, to any such action."
§ 8. Subdivision four of section two hundred and forty-four is hereby amended so as to read as follows:
"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 [SENATE JOURNAL.]
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." § 9. The first paragraph of section two hundred and sixty-eight is hereby amended so as to read as follows:
"1. For the purposes of an appeal either party may except 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. Provided, however, that where the decision filed under section two hundred and sixty-seven does not authorize a final judgment, 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."
§ 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, directing 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 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 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 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."
§ 11. The first subdivision of section two hundred and ninety-two of said act is hereby amended so as to read as follows:
"1. When an execution against property of the judgment debtor, or any one of several debtors in the same judgment issued to the sheriff of the county where he resides or has a place of business, or if he do not reside in the State, to the sheriff of the county where a judgment roll, or a transcript of a justices' 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."
§ 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 in actions where judgment for failure to answer can be taken 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, not exceeding ten, two dollars, and for each necessary defendant in excess of that number, served with process, one dollar."
§ 13. The fifth subdivision of section three hundred and seven, 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 forty-nine, and except in cases mentioned in the second paragraph of section three hundred and fortyfour, before argument, twenty dollars; for argument forty dollars; and the same costs shall be allowed to either party before argument and for argument on application for judgment, upon special verdict, or upon verdict subject to the opinion of the court as 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, or from an order where it grants or refuses a new trial, or where it sustains or overrules a demurrer."
§ 14. Section three hundred and ninety-nine of said act is hereby amended so as to read as follows:
"§ 399. A party to an action or special proceeding in any and all courts and before any and all officers and persons acting judicially, may be examined as a witness in his own behalf, or in behalf of any other party, conditionally, cn 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 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 a party to the action or proceeding, nor 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 evidence on the trial or hearing on behalf of such executor, administrator, heir-at-law, next-of-kin, assignee, legatec, devisee, survivor or committee, then all other persons not otherwise rendered incompetent shall be made competent witnesses in relation to such transaction or communication on said trial or hearing. Nothing contained in section eight of this act shall be held or construed to affect or restrain the ope ration of this section."
§ 15. Section four hundred and one of said act is hereby amended by adding thereto, as subdivision eight, the following:
"8. Whenever a motion shall be made in any cause or proceeding in any of the courts of this State, to obtain an injunction order, order of arrest, or warrant of attachment, or to vacate, modify or set aside any injunction order, order of arrest or warrant of attachment, granted in any such case or proceeding, it shall be the duty of the judge before whom such motion is made, to render and make known his decision on such motion, within twenty days after the day upon which such motion shall or may be submitted to him for his decision."
CHARLES J. FOLGER,
April 20, 1867.
L. H. HISCOCK,
The President put the question whether the Senate would agree to the report of the conference committee, and it was decided in the affirmative, a majority of all the members elected to the Senate voting in favor thereof, and three-fifths of said members being present, as follows:
Ordered, That the Clerk return said bill to the Assembly, with a message informing that the Senate have agreed to the report of the committee of conference.
The Assembly bill entitled "An act to increase the compensation authorized by the act entitled 'An act to provide for the care and educa tion of indigent deaf mutes under the age of twelve years,' passed April 25, 1863," was read a third time.
The President put the question whether the Senate would agree to the final passage of said bill, and it was decided in the affirmative, a majority of all the members elected to the Senate voting in favor thereof, and three-fifths of said members being present, as follows:
Ordered, That the Clerk return said bill to the Assembly, with a message informing that the Senate have concurred in the passage of the same, with amendments.