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3397. When act to take effect. This title shall take effect May first, one thousand eight hundred and ninety, and shall not affect any proceeding previously commenced.
CHAPTER 449 OF 1876.
AN ACT explaining, defining and regulating the effect and application of, and otherwise relating to, the act passed at this session of the Legislature, entitled "An act relating to courts, officers of justice, and civil proceedings."
PASSED June 2, 1876; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:
SECTION 1. Code of Remedial Justice. The act, passed at this session of the Legislature, entitled "An act relating to courts, officers of justice, and civil proceedings," constitutes a portion of the new revision of the statutes; and may be styled, in any act of the Legislature, or proceeding in a court of justice, or whenever it is otherwise referred to, as "The Code of Remedial Justice."
§ 2. Constitution. In construing that act, the following rules must be observed, except where a contrary intent is expressly declared in the provision to be construed, or plainly apparent from the context thereof:
1. "Superior city courts." The "superior city courts" are, collectively, the court of common pleas for the city and county of New York, the superior court of the city of New York, the superior court of Buffalo, and the city court of Brooklyn.
2. "Mandate." The word, "mandate," includes a writ, process, or other written direction issued pursuant to law, out of a court, or made pursuant to law, by a court, or a judge thereof, or by a person acting as a judicial officer, and commanding a court, board or other body, or an officer, or other person, named or otherwise designated therein, to do, or to refrain from doing, an act therein specified.
3. "Judge." The word, "judge," includes a justice, surrogate, recorder or other judicial officer, authorized or required to act, or prohibited from acting in the matter or thing referred to, in the provision in which that word is used.
4. "Clerk." The word, "clerk," signifies the clerk of the court, wherein the action or special proceeding is brought, or wherein, or by whose authority, the act is to be done, which is referred to in the provision in which it is used. If the action or special proceeding is brought, or the act is to be done, in or by the authority of the supreme court, it signifies the clerk of the
county where the action or special proceeding is triable, or the act is to be done.
5. "Report." The word, "report," when used in connection with a trial, or other inquiry, or a judgment, means a referee's report; and the word, "decision," when used in the same connection, means the decision of the court upon a hearing, or the trial of an issue, before the court, without a jury.
6. "Action of ejectment." An "action of ejectment" is an action to recover the possession of some specific real property.
7. "Judgment creditor's action." A "judgment creditor's action" is an action brought by a judgment creditor, pursuant to the provisions of sections thirty-eight and thirty-nine of title two of chapter one of part three of the Revised Statutes, or otherwise to aid in the collection of a judgment for a sum of money, or directing the payment of a sum of money.
8. "Personal injury." A "personal injury" includes libel, slander, criminal conversation, seduction, and malicious prosecution; also, an assault, battery, false imprisonment, or other actionable injury to the person of the plaintiff, or his or her wife, husband, child, or servant.
9. " Injury to property." An "injury to property " is an actionable act, whereby the estate of another is lessened, other than a personal injury, or the breach of a contract.
10. "Requisition to replevy." Personal property taken by a sheriff, in an action to recover the possession thereof, pursuant to the plaintiff's claim of the immediate delivery thereof, is said to be "replevied;" and the indorsement in writing, upon the affidavit, in behalf of the plaintiff, requiring the sheriff to take the property from the defendant, and deliver it to the plaintiff, is styled "a requisition to replevy." Such a requisition is deemed to be the mandate of the court, in which the action is brought.
11. Annulment of a warrant of attachment. A warrant of attachment is said to be annulled when the action, in which it was granted, abates or is discontinued; or a final judgment rendered therein in favor of the plaintiff, is fully paid; or a final judgment is rendered therein in favor of the defendant. But, in the latter case, a stay of proceedings suspends the effect of the annulment, the reversal or vacating of the judgment revives the warrant.
12. "Judgment creditor." The term "judgment creditor," signifies the person who is entitled to collect, or otherwise enforce, for his own immediate benefit, a judgment for a sum of money or directing the payment of a sum of money.
13. "Lunatic." The words, "lunacy," and "lunatic," embrace every description of unsoundness of mind, except idiocy.
14. "Distinct parcel." A "distinct parcel" of real property is a part of the property, which is or may be set off by boundary lines, as distinguished from an uncertain or undivided share or interest therein.
15. "Territory." The word, "territory," when applied to a portion of the United States, without the State, signifies a portion thereof where an organized territorial government exists, and includes the District of Columbia.
16. "Domestic" and "foreign corporations." A "domestic corporation" is a corporation created by or under the laws of the State. A "foreign corporation" is a corporation created by or under other laws.
17. “Action of dower." The term, "action for dower," includes all proceedings, authorized by the existing laws, to be taken, by or in behalf of a widow, for the admeasurement of her dower, or to recover the property admeasured, or the rents and profits thereof.
§ 3. "Trial juror” and “trial jury." "Notify." The terms, "trial juror," and "trial jury," as used in that act, are respectively equivalent to the terms, "petit juror," and "petit jury," heretofore used in the Constitution and laws of the State. The word "notify" as used in that act, with respect to procuring the attendance of a juror, is equivalent to the word "summon," as heretofore used in the like connection, in the same Constitution and laws.
§ 4. "Action" "Judgment." "Special proceeding." "Order." In that act, and in this act, the word "action," refers to a civil action; the word "judgment," to a judgment in such an action; the term "special proceeding," to a civil special proceeding; and the word "order" to an order made in such an action or special proceeding; except where a contrary intent is expressly declared in the provision containing the word or term or plainly apparent in the context thereof.
§ 5. Application and effect of certain portions of the act. The application and effect of certain portions of that act are declared and regulated as follows, except that where a particular provision, included within a chapter or a portion of a chapter, specified in a subdivision of this section, expressly specifies the courts, persons or proceedings, affected thereby, that provision is to be deemed excluded from the application and effect, prescribed in the subdivision.
1. Chapter second. In chapter second, the prisoners referred to are civil prisoners only.
2. Chapter third. In chapter third, the provisions of the sections three hundred and three, three hundred and four, three hundred and five and three hundred and six, apply to trial jurors upon the trial of an indictment or other criminal cause, as prescribed in subdivision seventh of this section, with respect to the application of titles third and fourth of chapter tenth.
3. Chapter fifth. In chapter fifth, sections four hundred and fifty, four hundred and fifty-four, four hundred and fifty-five and four hundred and sixty-eight, apply to an action commenced, in any court of the State, on or after the first day of May, eighteen hundred and seventy-seven.
4. Chapters fifth and sixth. The remainder of chapter fifth, and the whole of chapter sixth, apply only to an action commenced, on or after the first day of May, eighteen hundred and seventy-seven, in the supreme court, a superior city court, the marine court of the city of New York, or a county court. If, before that date, in an action brought in either of those courts, a summons has been served upon one or more of two or more defendants, or an order for the service of a summons by publication has been made, chapters fifth and sixth do not apply to that action.
5. Chapter seventh. Chapter seventh, excluding section five hundred and forty-eight, and article first of title fourth thereof, applies only to an action in one of the courts specified in subdivision fourth of this section, in which an application for an order of arrest, an injunction, or a warrant of attachment, is made on or after the first day of May, eighteen hundred and seventy-seven. Article first of title fourth of that chapter applies only to proceedings taken, as therein prescribed, on or after that date.
6. Chapter eight. Chapter eight applies only to the proceedings taken, on or after the first day of May eighteen hundred and seventy-seven, in an action or. special proceeding in one of the courts specified in subdivision fourth of this section; except that sections seven hundred and twenty-five, seven hundred and twenty-six, and seven hundred and twenty-seven, apply to a courts of record, sections seven hundred and twenty-eight, seven hundred and twenty-nine, and seven hundred and thirty, to proceedings in any
court or before any officer or body, and sections seven hundred and sixtyfour and seven hundred and sixty-five, to all courts.
7. Chapter tenth. In chapter tenth, titles first, second, fifth and sixth, apply only to proceedings taken, on or after the first day of May, eighteen hundred and seventy-seven, in one of the courts specified in subdivision fourth of this section. Titles third and fourth of that chapter apply only to jurors drawn for the term of a court commencing not less than twenty days after the first day of May, eighteen hundred and seventy-seven, subject to that qualification, they apply to jurors selected under the existing laws, and the lists and ballots prepared accordingly, until new jurors are selected, and new lists and ballots are prepared, as prescribed in those titles. The same titles excluding article third of title third, apply equally to a criminal and civil action or special proceeding, and to a court of criminal and of civil jurisdiction. A jury for the trial of an indictment, or other criminal cause, at a term of a court of record, commencing on or after the twenty-first day of May eighteen hundred and seventy-seven, must be procured from the trial jurors selected, drawn and noticed, as prescribed in this act, and in those titles for the term of the court at which it is triable, including the talesmen or additional jurors procured as prescribed therein; and the same must be tried by the jury so formed, but the existing laws, relating to challenges or disqualifications of petit jurors in a criminal cause, or prescribing the cases where talesmen or additional petit jurors must be summoned in a criminal cause, remain unaffected by those titles, and are applicable to the proceedings taken as therein prescribed, and to the trial jurors therein specified. Those titles do not affect any provision of the existing laws, relating to grand jurors or grand juries; except that where such a provision refers to the lists of petit jurors; the ballots containing their names, the box or boxes in which those ballots are deposited or contained, the selecting, drawing, summoning, or empanelling of petit jurors, the imposition of a fine upon a petit juror, or the enforcement, reduction, or remission thereof, it is deemed to refer to the same subject, as provided for in those titles, in like manner as it refers to the existing laws relating thereto. Title third does not affect any special provision of law remaining in force after the first day of May, eighteen hundred and seventyseven, whereby trial jurors are directed to be procured, for a particular court of record from a particular locality, or whereby a county is divided into two or more jury districts, and the selecting, drawing, summoning, or attendance of jurors from the particular locality, or the different jury districts is regulated; but each of those provisions becomes applicable to and affects the selecting, drawing, notifying, or attendance of jurors as prescribed in that title, in like manner as it now applies to and affects the existing laws, upon the same subject. So much of the provisions of title fourth, as relates to the remission or enforcement of a fine imposed upon a trial juror, applies to a fine imposed upon a grand juror, as prescribed in the existing laws.
8. Chapter eleventh. In chapter eleventh, articles first and second of title first, and the whole of title third, apply only to proceedings in one of the courts specified in subdivision fourth of this section, taken on or after the first day of May, eighteen hundred and seventy-seven, but where an action has been commenced in either of those courts, before that date, a judgment by default must be taken therein, as prescribed by the existing laws.
9. Chapter twelfth. Chapter twelfth does not apply to an appeal from a surrogate's court; and does not affect the existing laws, touching the review of proceedings in a criminal cause.
10. Chapter thirteenth. Chapter thirteenth applies only to an execution issued on or after the first day of May, eighteen hundred and seventy-seven,