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8 Misc 153.

$2026. The person upon whom either writ has be duly served, must state, plainly and unequivocally, in his

return:

1. Whether or not, at the time when the writ was served. or at any time theretofore or thereafter, he had in his custody, or under his power or restraint, the person for whose relief the writ was issued.

2. If he so had that person, when the writ was se.vel, and still has him, the authority and true cause of the m prisonment or restraint, setting it forth at length. If the prisoner is detained by virtue of a mandate or other written authority, a copy thereof must be annexed to the return, and, upon the return of the writ, the original must be produced, and exhibited to the court or judge.

3. If he so had the prisoner at any time but has transferred the custody or restraint of him to another, the return must conform to the return required by the second subdivision of this section, except that the substance of the mandate or other written authority may be given, if the original is no longer in his hands; and that the return must state particularly to whom, at what time, for what cause, and by what authority, the transfer was made.

The return must be signed by the person making it, and, unless he is a sworn public officer, and makes his return in his official capacity, it must be verified by his oath.

§ 2027. The person, upon whom a writ of habeas corpus has been duly served, must also bring up the body of the prisoner in his custody, according to the command of the writ; unless he states, in his return, that the prisoner is so sick or infirm, that the production of him would en danger his life or his health.

2028. Where a person, who has been duly served with either writ, refuses or neglects, without sufficient cause shown by him, fully to obey it, as prescribed in the last two sections the court or judge, before which or whom it is made returnable, upon proof of the due service thereof, must forthwith issue a warrant of attachment, directed generally to the sheriff of any county where the delinquent may be found, or, if the delinquent is a sheriff, to any coroner of his county, or to a particular person specially appointed to execute the warrant, and designated therein commanding such officer or other person forthwith to apprehend the delinquent, and bring him before the court or judge. Upon the delinquent being so brought up, an order must be made, committing him to close custody in the jail of the county in which the court or judge is; or, if he is a sheriff, in the jail of a county other than his own, designated in the order, and, in either case, without being allowed the liberties of the jail. The order must direct that he stand committed, until he makes return to the writ, and complies with any order, which may be made by

2582. Decree for probate, etc.; how far suspended by appeal.

2583. Decree revoking probate, etc.; not stayed.

2581. Perfected appeal stays proceedings in other cases.

2585. Appeal, where heard; proceedings thereupon.

2586. Power of appellate court;
further testimony.

2587. Judgment or order upon
appeal.

2588. Award of jury trial upon
reversal in probate

cases.

2589. Costs of appeal.

$2568. Any party aggrieved may appeal from a decree 4 Dem. 227. or an order of a surrogate's court, in a case prescribed in this article, except where the decree or order of which he complains was rendered or made upon his default.

2569. A creditor of, or a person interested in, the estate or fund affected by the decree or order, who was not a party to the special proceeding, but was entitled by law to be heard therein, upon his application; or who has acquired, since the decree or order was made, a right or interest which would have entitled him to be heard, if it had been previously acquired; may intervene and appeal, as prescribed in this article. The facts, which entitle such a person to appeal, must be shown by an affidavit, which must be filed, and a copy thereof served with the notice of appeal.

$2570. Am'd 1895, amendment to take effect January 1, 145 N.Y. 540. 1896.] An appeal to the appellate division of the supreme court may be taken from a decree of a surrogate's court, or from an order affecting a substantial right, made by a surrogate, or by a surrogate's court in a special proceeding.

$2571. An appeal, taken from a decree, brings up for review each intermediate order, which is specified in the notice of appeal, and necessarily affected the decree, and which has not already been reviewed by the appellate court, upon a separate appeal taken from that order.

$2572. An appeal by a party must be taken within thirty days after the service, upon the appellant, or upon the attorney, if any, who appeared for him in the surrogate's court, of a copy of the decree or order from which the appeal is taken, and a written notice of the entry thereof. An appeal by a person who was not a party, taken as prescribed in this article, must be taken within three months after the entry of the decree or order, unless the appellant's title was acquired by means of an assignment or conveyance from a party; in which case, the appeal must be taken within the time limited for the taking thereof by the assignor or grantor

2573. Each party to the special proceeding in the surrogate's court, and each person not a party, who has, or claims to have, in the subject-matter of the decree or order, a right or interest, which is directly affected thereby, and which appears upon the face of the papers presented in the surrogate's court, or has become manifest in the course of the proceedings taken therein, must be made a party to the

20 N. Y.

State Rep.

387.

15 Abb. N. C. 120.

100 N. Y. 20.

2. Where, although the original imprisonment was lawful, yet by some act, omission, or event, which has taken place afterwards, the prisoner has become entitled to be discharged.

3. Where the mandate is defective in a matter of substance required by law, rendering it void.

4. Where the mandate, although in proper form, was issued in a case not allowed by law.

5. Where the person, having the custody of the prisoner under the mandate, is not the person empowered by law to detain him.

6. Where the mandate is not authorized by a judgment, decree, or order of a court, or by a provision of law.

§ 2034. But a court or judge, upon the return of a writ issued as prescribed in this article, shall not inquire into the legality or justice of any mandate, judgment, decree, or 92 Hun. 476. final order, specified in the last section but one, except as therein stated.

19 N. Y.

906.

§ 2035. If it appears that the prisoner has been legally committed for a criminal offence, or if he appears, by the testimony offered with the return, or upon the hearing thereof, to be guilty of such an offence, although the commitment is irregular, the court or judge, before which or whom he is brought, must forthwith make a final order, to discharge him upon his giving bail, if the case is bailable or, if it is not bailable, to remand him. Where bail is given pursuant to an order, made as prescribed in this section, the proceedings are the same as upon the return to a writ of certiorari, where it appears that the prisoner is entitled to be bailed.

§ 2036. Where a prisoner is not entitled to his discharge, and is not bailed, he must be remanded to the custody, or placed under the restraint, from which he was taken, unless the person, in whose custody or under whose restraint he was, is not lawfully entitled thereto; in which case, the order remanding him must commit him to the custody of the officer or person so entitled.

§ 2037. Pending the proceedings, and before a final State Rep. order is made upon the return, the court or judge, before which or whom the prisoner is brought, may either commit him to the custody of the sheriff of the county wherein the proceedings are pending, or place him in such care or custody, as his age and other circumstances require.

§ 2038. Where it appears, from the return to either writ, that the prisoner is in custody by virtue of a mandate an order for his discharge shall not be made, until notic of the time when, and the place where, the writ is return able, or to which the hearing has been adjourned, as the case may be, has been either personally served, eight days previously, or given in such other manner, and for such

§§ 2039-2044

HABEAS CORPUS, ETC.

127

previous length of time, as the court or judge prescribes, as follows:

1. Where the mandate was issued or made in a civil action or special proceeding, to the person who has an interest in continuing the imprisonment or restraint, or his attorney.

2. In every other case, to the district-attorney of the county, within which the prisoner was detained, at the time when the writ was served.

For the purpose of an appeal, the person to whom notice is given, as prescribed in the first subdivision of this section, becomes a party to the special proceeding.

$2039. A prisoner, produced upon the return of a writ 100 N.Y. 20 of habeas corpus, may, under oath, deny any material

allegation of the return, or make any allegation of fact, 128 N. Y. 180 showing either that his imprisonment or detention is unlawful, or that he is entitled to his discharge. Thereupon the court or judge must proceed, in a summary way, to hear the evidence, produced in support of or against the imprisonment or detention, and to dispose of the prisoner as the justice of the case requires.

§ 2040. Where the return to a writ of habeas corpus states that the prisoner is so sick or infirm, that the production of him would endanger his life or health, and the return is otherwise sufficient, the court or judge, if satisfied of the truth of that statement, must decide upon the return, and dispose of the matter, as if a writ of certiorari had been issued.

2041. Where an application is made for a writ of 8 Misc. 153. habeas corpus, as prescribed in this article, and it appears to the court or judge, upon the petition and the documents annexed thereto, that the cause or offence, for which the party is imprisoned or detained, is not bailable, a writ of certiorari may be granted, instead of a writ of habeas corpus, as if the application had been made for the former writ.

§ 2042. Upon the return to such a writ of certiorari, the court or judge, before which or whom it is returnable, must proceed as upon a return to a writ of habeas corpus, and must hear the proofs of the parties, in support of and against the return.

§ 2043. If it appears, that the prisoner is unlawfully imprisoned or restrained in his liberty, the court or judge must make a final order, discharging him forthwith. If it appears that he is lawfully imprisoned or detained, and is not entitled to be bailed, the court or judge must make a final order, dismissing the proceedings.

$2044. Notwithstanding a writ of certiorari has been issued, or returned, as prescribed in this article, the court or judge, before which or whom it is returnable, may issue a writ of habeas corpus, which is, in all respects, subject to

#3 Abb. N. C. 428.

case, it must be fixed by the surrogate, or by a judge of
the appellate court, who may require proof, by affidavit.
of the value of any property, or of such other facts as he
deems proper. The respondent may apply to the appellate
court, upon notice, for an order requiring the appellant to
increase the sum so fixed. If such an order is granted, and
the appellant makes default in giving the new undertaking.
the appeal may be dismissed or the stay dissolved, as the
case requires.

4 Dem. 450.

5 d. 228.

§ 2581. An undertaking, given as prescribed in the last four sections, must be to the people of the State; must contain the name and residence of each of the sureties thereto; must be approved by the surrogate or a judge of the appellate court; and must be filed in the surrogate's office. Except as otherwise specially prescribed, the filing of a proper undertaking, and service of the notice of appeal, perfect the appeal. The surrogate may, at any time, in his discretion, make an order, authorizing any person ag grieved to bring an action upon the undertaking, in his own name, or in the name of the people. Where it is brought in the name of the people, the damages collected must be paid over to the surrogate, and distributed by him, as justice requires,

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§ 2582. [Am'd 1881.] An appeal from a decree of a surrogate, admitting a will to probate, or granting letters testamentary, or letters of administration, does not stay the issuing of letters, where, in the opinion of the surrogate, manifested by an order, the preservation of the estate requires that the letters should issue. Letters so issued confer upon the person named therein all the powers and authority, and subject him to all the duties and liabilities of an executor or administrator in an ordinary case, except that they do not confer power to sell real property by virtue of a provision in the will, or to pay or to satisfy a legacy, or distribute the unbequeathed property of the decedent, until after the final termination of the appeal; and in case letters shall have been issued before such appeal the executor or administrator, on a like order of the sur rogate, may exercise the powers and authority, subject to the duties, liabilities and exceptions above provided,

74 Hun, 269.

17 Misc. 543

2596, T

§ 2583. An appeal from a decree revoking the probate of a will, or revoking letters testamentary, letters of administration, or letters of guardianship; or from a decree or an order, suspending an executor, administrator, or guardian, or removing or suspending a testamentary trustee, or a freeholder, appointed to execute a decree, as prescribed in title fifth of this chapter, or appointing a temp orary administrator, or an appraiser of personal property, does not stay the execution of the decree or order appealed from.

§ 2584. Except as otherwise expressly prescribed in this article, a perfected appeal has the effect, as a stay of the

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