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to bring before the justice or court, to be examined as a witness, a prisoner confined in the jail of the county where the action is to be tried, or an adjoining county. In a case specified in this section, the writ may also be issued by a county judge, or a special county judge, residing within the county where the justice resides, or the court is located, or the prisoner is confined, as the case may be.

§ 211. [Am'd 1880, 1895, amendment to take effect January 1, 1896.] A writ shall not be issued, by virtue of either of the last three sections, to bring up a prisoner sentenced to death. Nor shall it be issued to bring up a prisoner confined under any other sentence for a felony; except where the application is made, in behalf of the people, to bring him up as a witness on the trial of an indictment, and then only by and in the discretion of a justice of the supreme court, upon such notice to the district attorney of the county wherein the prisoner was convicted, and upon such terms and conditions, and under such regulations, as the judge prescribes.

2012. An application for a writ, made as prescribed in either of the foregoing sections of this article, must be verified by affidavit, and must state:

1. The title and nature of the action or special proceeding, in regard to which the testimony of the prisoner is desired; and the court, or body, in or before which, or the officer before whom, it is pending.

2. That the testimony of the prisoner is material and necessary to the applicant, on the trial of the action, or the hearing of the special proceeding, as he is advised by counsel and verily believes.

3. The place of confinement of the prisoner.

4. Whether the prisoner is or is not confined under a sentence for a felony.

But where the Attorney-General or district-attorney makes the application, he need not swear to the advice of counsel.

2013. The return to a writ, issued as prescribed in this article, must state for what cause the prisoner is held; and if it appears therefrom, that he is held by virtue of a mandate in a civil action or special proceeding, or by virtue of a commitment upon a criminal charge, he must, after having testified, be remanded, and again committed to the prison, from which he was taken.

§ 2014. Any officer to whom a writ, issued as prescribed in this article, is delivered, must obey the same, according to the exigency thereof, and make a return thereto accordingly. If he refuses or neglects so to do, he forfeits, to the people, if the writ was issued upon the application of the Attorney-General or a district-attorney, or, in any other

case.

to the party on whose application the writ was issued, the sum of five hundred dollars. But where the prisoner is confined under a sentence to death, a return to that

$1155, Con sol. Act.

24 N. Y.

thereof. The appeal shall be heard upon a case containing all the evidence; and an error in the admission or exclusion of evidence, or in any other ruling or direction of the judge upon the trial may, in the discretion of the court, be disregarded if substantial justice does not require that there should be a new trial. If a motion to set aside the verdict be not made, or if at the termination of the proceedings for its review, the verdict is sustained, the supreme court shall certify to the surrogate's court the verdict, which shall be final and conclusive upon the parties to the litigation and their privies. Thereafter all proceedings relating to the will and to the estate of the decedent shall be had in the surrogate's court. The original will shall be returned to the surrogate's court at the time the verdict is certified thereto. The costs shall be taxed in the surrogate's court, and shall be the same, and shall be awarded in the same manner as if the proceedings had been heard by the surrogate.

§ 2548. [Am'd 1886, 1895, amendment to take effect JanState Rep. uary 1, 1896.] A trial by jury pursuant to an order made in 647. a proceeding for the disposition of the real property of a de

cedent, made as prescribed in the last section, can be reviewed, in the first instance, only upon a motion for a new trial. A new trial may be granted by the surrogate or the court in which the trial took place, or, if it took place at a trial term of the supreme court by the supreme court, in a case where a new trial of specific questions of fact, tried by a jury pursuant to an order for such trial, made in an action, would be granted. The verdict of the jury must be certified to the surrogate's court by the clerk of the court in which the trial took place.

§ 2549. An appeal may be taken from an order, made upon a motion for a new trial, as prescribed in the last section, as if the order had been made in an action, and with like effect. Costs of such an appeal may be awarded by the appellate court, as if the appeal was from an order or decree of the surrogate's court.

ARTICLE THIRD,

DECREES AND ORDERS; AND THE ENFORCEMENT THEREOF.
COSTS AND FEES.

§ 2550. Definition of "final order"
and "decree."

2551. Decree settling an ac-
count, to contain sum-
mary thereof.

2652. Decree or order; when
evidence of assets.
2553. Decree for money; how
docketed.

2554. Enforcement of decree by
execution.

$ 2555. Id.; by punishment for contempt.

2556. Definition of "order":
how enforced.

2557. Costs; how made payable.
2558. Id.: when awarded.
2559. Id.; how awarded.
2560. Id.; when the same as in
supreme court.
2561 When surrogate
amount of costs.

to fis

The Union Surety and Guaranty C

2016-2019 HABEAS CORPUS, ETC.

section, to a writ of habeas corpus, or a writ of certiorari, as prescribed in this article, for the purpose of inquiring into the cause of the imprisonment or restraint, and, in a. case prescribed by law, of delivering him therefrom. A writ of habeas corpus may be issued and served under this section, on the first day of the week commonly called Sunday; but it cannot be made returnable on that day.

2016. A person is not entitled to either of the writs 133 N Y. 207. specified in the last section, in either of the following cases: 84 Han 166. 1. Where he has been committed, or is detained, by virtue of a mandate, issued by a court or a judge of the United States, in a case where such courts or judges have exclusive jurisdiction under the laws of the United States, or have acquired exclusive jurisdiction by the commencement of legal proceedings in such a court.

2. Where he has been committed, or is detained, by virtue of the final judgment or decree, of a competent tribunal of civil or criminal jurisdiction; or the final order of such a tribunal, made in a special proceeding, instituted for any cause, except to punish him for a contempt; or by virtue of an execution or other process, issued upon such a judgment, decree, or final order.

7.

? 2017. [Am'd 1895, amendment to take effect January 1, 64 How. Pr. 1896 Application for the writ must be made, by a written petition, signed, either by the person for whose relief it is intended, or by some person in his behalf to either of the following courts or officers:

1. The supreme court, at a special term or the appellate division thereof, where the prisoner is detained within the judicial district within which the term is held.

2. A justice of the supreme court, in any part of the

State.

3. An officer authorized to perform the duties of a justice of the supreme court at chambers, being or residing within the county, where the prisoner is detained; or, if there is no such officer within that city or county, capable of acting, r, if all those who are capable of acting and authorized to grant the writ, are absent, or have refused to grant it, then to an officer, authorized to perform those duties, residing in an adjoining county.

§2018. Where application for either writ is made as prescribed in subdivision third of the last section, without the county where the prisoner is detained, the officer must require proof, by the oath of the person applying, or by other sufficient evidence, of the facts which authorize him to act as therein prescribed; and if a judge in that county, authorized to grant the writ, is said to be incapable of acting, the cause of the incapacity must be specially set forth. If such proof is not produced, the application must be denied

2 N. Y. Supp. 263. 135 N. Y. 76

2019. The petition must be verified by the oath of the 2 N. V. petitioner, to the effect that he believes it to be true; and Supp. 263. must state, in substance:

1. That the person, in whose behalf the writ is applied for, is imprisoned, or restrained in his liberty; the place where, unless it is unknown, and the officer or person by whom, he is so imprisoned or restrained, naming both parties, if their names are known, and describing either party, whose name is unknown.

2. That he has not been committed, and is not detained by virtue of any judgment, decree, final order, or process, specified in section two thousand and sixteen of this act.

3. The cause or pretence of the imprisonment or restraint, according to the best knowledge and belief of the peti tioner.

4. If the imprisonment or restraint is by virtue of a mandate, a copy thereof must be annexed to the petition · ualess the petitioner avers, either, that by reason of the removal or concealment of the prisoner before the application, a de mand of such a copy could not be made, or that such a demand was made, and the legal fees for the copy were tendered to the officer or other person, having the prisoner in his custody, and that the copy was refused.

5. If the imprisonment is alleged to be illegal, the petition must state in what the alleged illegality consists.

6. It must specify whether the petitioner applies for the writ of habeas corpus, or for the writ of certiorari.

2020. A court or a judge, authorized to grant either writ, must grant it without delay, whenever a petition therefor is presented, as prescribed in the foregoing sections of this article, unless it appears, from the petition itself, or the documents annexed thereto, that the petitioner is prohibited by law from prosecuting the writ. For a violation of this section, a judge, or, if the application was made to a court, each member of the court, who assents to the violation, forfeits to the prisoner one thousand dollars, to be recovered by an action in his name, or in the name of the petitioner to his use.

§ 2021. [Am'd 1895, amendment to take effect January 1, 1896. The writ of habeas corpus, issued as prescribed in this article, must be substantially in the following form, the blanks being properly filled up: "The people of the State of New York, to the sheriff of, et cetera (or "to A. B."): "We command you that you have the body of C. D., by you imprisoned and detained, as it is said, together with the time and cause of such imprisonment and detention, by whatso ever name the said C. D. is called or charged, before

on

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2022. [Am'd 1895, amendment take effect January 1, 8 Misc. 153 1896.] The writ of certiorari, issued as prescribed in this article, must be substantially in the following form, the blanks being properly filled up: "The People of the State of New York, To the Sheriff of," et cetera, (or "to A. B."): "We command you, that you certify fully and at large, to ("the supreme court, at a special term or term of the appellate division thereof, to be held," or "E. F., justice of the supreme court,' or otherwise, (as the case may be), "at (or "immediately after the receipt of this writ"), "the day and cause of the imprisonment of C. D., by you detained, as it is said, by whatsoever name the said C. D. is called or charged. And have you then there this writ. "Witness, one of the justices" (or "judges") of the said court" (or "county judge," or otherwise, as the case may be, "the in the year eighteen hundred and

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§ 2023. If application for either writ is made to the supreme court, or to a justice thereof, in a county other than that where the person is imprisoned or confined, the writ may be made returnable, in its or his discretion, before any judge authorized to grant it, in the county of the imprisonment or confinement.

§ 2024. The writ of habeas corpus or the writ of certiorari shall not be disobeyed, for any defect of form, and particularly in either of the following cases:

1. If the person having the custody of the prisoner, is designated, either by his name of office, if he has one, or by his own name; or, if both names are unknown or uncertain, by an assumed appellation. Any person, upon whom the writ is served, is deemed to be the person to whom it is directed, although it is directed to him by a wrong name or description, or to another person

2. If the prisoner directed to be produced, is designated by name, or otherwise described in any way, so as to be identified as the person intended.

§ 2025. Where a justice of the supreme court, in court or out of court, has evidence, in a judicial proceeding taken before him, that any person is illegally imprisoned or restrained in his .iberty within the State; or where any other judge, authorized by this article to grant the writs, has evidence, in like manner, that any person is thus imprisoned or restrained, within the county where the judge resides; he must issue a writ of habeas corpus or a writ of certiorari, for the relief of. that person, although no application therefor has been made.

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