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4 Month L.

Bul. 48. 3 Dem. 362.

2. He may issue any mandate, to which a party is entitled as of cours, either unconditionally or on the filing of any paper; and may sign, as clerk of the court, and afi the seal of the court to any letters or mandate issued from the court.

3. He may certify in the manner prescribed by chap. ter ninth of this act, a copy of any paper, required or permitted by law to be filed or recorded in the surrogate s office.

4. He may adjourn to a definite time, not exceeding thirty days, any matter, when the surrogate is absent from. his office, or unable, by reason of other engagements, to attend to the same.

5. He may take the acknowledgment or proof of any instrument, to be used or filed in the court of which he is a clerk.

The surrogate may prohibit the clerk from exerci-ing any power specifi d in this section, but the probibition does not affect the validity of any act of the chr dene in disregard of the prohibition. The clerk or other person employed in any capacity in a surrogate's office shail not act as appraiser, as attorney or counsel, or as referte, or special guardian, in any matter before the surrogate.

§ 2510. [Am'd 1893, 1894]. The clerk of the surrogate's court, in addition to the powers enumerate in section twenty-five hundred and nine, may exercise, concurrently with the surrogate of the county, the following powers of the surrogate : On the return of a citation issued from such surrogate's court on a petition for the probate of a will, where no objection to the same is filed; or, where all the persons entitled to be cited, sign and verify the petition, or personally, or by attorney, appear on the probate thereof, cause the witnesses to the will to be examined before him. Such examination must be reduced to writing, and for such purpose he is hereby authorized to administer and certify oaths and affirmations in such cases in the same manner and with the same effect as if administered and certified by the surrogate.

§ 2511. [Am'd 1893.] A surrogate hereafter elected, or appointed, and the sureties on his offici 1 bond, are liable for any act of the clerk of the surrogate's court in the discharge of his official duties, during the suriogate's term of office, as if the act was performed by the surrogate. The surrogate may take security from the clerk,

brought to recover two or more chattels, with respect to ose which have been replevied; in like manner and with e effect, as if the summons had been personally served. $2933. Where the summons has been personally served $1345, Con on the defendant, or where he appears, the justice oceed to hear and determine the action, although the laintiff has not required the chattel to be replevied, or the onstable has not been able to replevy it.


sol. Act.
17 Civ. Pro.

The Union Surety and Guaranty Co

The Union Surety and Guaranty Co

119 N. Y. 28.


4. The word, "will", signifies a last will and testament, and includes all the codicils to a will.

5. The expression, "letters of administration", includes letters of temporary administration.

6. The expression, "testamentary trustee", includes every person, except an executor, an administrator with the will annexed, or a guardian, who is designated by a will, or by any competent authority, to execute a trus! created by a will; and it includes such an executor or administrator, where he is acting in the execution of a trust created by the will, which is separable from his functions as executor or administrator.

7. The word, "surrogate", where it is used in the text, or in a bond or undertaking, given pursuant to any provision of this chapter, includes every officer or court vested by law with the functions of surrogate.

8. The expression, "judicial settlement", where it is applied to an account, signifies a decree of a surrogate's court, whereby the account is made conclusive upon the parties to the special proceeding, either for all purposes, or for certain purposes specified in the statute; and an account thus made conclusive is said to be "judicially settled".

9. The expression, "intermediate account", denotes an account filed in the surrogate's office, for the purpose of disclosing the acts of the person accounting, and the condition of the estate or fund in his hands, and not made the subject of a judicial settlement.

10. The expression, "upon the return of a citation", where it is used in a provision requiring an act to be done in the surrogate's court, relates to the time and place at which the citation is returnable, or to which the hearing is adjourned; includes a supplemental citation, issued to bring in a party who ought to be, but has not been cited; and implies that, before doing the act specified, due proof must be made, that all persons required to be cited have been duly cited.

11. The expression, "person interested ", where it is used 9 App. Div. in connection with an estate or a fund, includes every person entitled, either absolutely or contingently, to share in the estate or the proceeds thereof, or in the fund, as hus band, wife, legatee, next of kin, heir, devisee, assignee, grantee, or otherwise, except as a creditor. Where a provision of this chapter prescribes that a person interested may object to an appointment, or may apply for an inventory, an account, or increased security, an allegation of his interest, duly verified, suffices, although his interest is disputed; unless he has been excluded by a judgment, decree, or other final determination, and no appeal therefrom is pending.

12. The term, "next of kin ", includes all those entitled, under the provisions of law relating to the distribution of personal property, to share in the unbequeathed residue of

be granted upon the defendant filing with the justice an undertaking in a sum fixed by the justice, not exceeding twice the amount of the damages claimed or twice the value of the chattel or of all the chattels claimed, as stated in the pleadings or affidavits, with one or more sureties, approved by the justice, to the effect that the defendant will pay to the plaintiff the amount of any judgment, including costs, that may be recovered against him in the county court in the action so removed. From the time of the granting of the order the county court of Kings county has cognizance of the action, and the same shall be tried and determined by said county court as if originally brought therein. The justice must forthwith deliver to the clerk of the county court all processes, pleadings and other papers in the action which must be filed, entered or recorded, as the case requires, in the latter office. Costs in an action so removed shall be the same as in an original action commenced in said county


§ 2935. The pleading in a justice's court are:

§ 1347, Cor sol. Act.

9 Misc. 56.

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The defendant's demurrer to the complaint, or to one or more distinct causes of action, separately stated therein.

4. The plaintiff's demurrer to one or more counterclaims 72 Hun, 475. stated in the answer.

§ 2936. The complaint must state, in a plain and direct manner, the facts constituting the cause of action.

§ 2937. The plaintiff may unite, in the same complaint, two or more causes of action, where they all arise out of

16 Misc. 334.

§ 1347, Consol. Act.

3 Dem. 313.

2515. A citation or other mandate of a surrogate's court must, except where it is otherwise specially prescribed by law, be made returnable before the surrogate from whose court it was issued, and may be served or executed in any county. A warrant of attachment must be directed to the sheriff of the surrogate's county; who may execute it in any county, and must convey the person arrested to the place where it is returnable.

§ 2516. Except in a case where it is otherwise specially prescribed by law, a special proceeding in a surrogate's court must be commenced by the service of a citation, issued upon the presentation of a petition. But upon the presentation of the petition, the court acquires jurisdiction to do any act, which may be done before actual service of the citation.

$2517. The presentation of a petition is deemed the commencement of a special proceeding, within the meaning of any provision of this act, which limits the time for the commencement thereof. But in order to entitle the petitioner to the benefit of this section, a citation issued upon the presentation of the petition, must, within sixty days thereafter, be served, as prescribed in section two thousand five hundred and twenty of this act, upon the adverse party, or upon one or two or more adverse parties, who are jointly liable, or otherwise united in interest; or, within the same time, the first publication thereof must be made, pursuant to an order made as prescribed in section two thousand five hundred and twenty-two of this act.

$2518. Where it is prescribed, in any provision of this chapter, that a petition must pray that a person, or that creditors, next of kin, legatees, heirs, devisec, or other persons constituting a class, may be cited for any purpose, all those persons are necessary parties to the special proceeding. Where persons to be cited constitute a class, the petitioner must set forth in an affidavit, the name of each of them, unless the name, or part of the name, of one or more of them cannot, after diligent inquiry, be ascertained by him; in which case, that fact must be set forth, and the surrogate must, thereupon, inquire into the matter. For the purpose of the inquiry, he may, in his descretion, issue a subpoena, requiring any person to attend before him to testify respecting the matter. If he is satisfied, upon the allegations of the petitioner, or after making the inquiry, that the name of one or more of the persons to be cited, cannot be ascertained with reasonable diligence, the citation may be directed to that person or those persons, by a general designation, showing his, her, or their connection with the decedent, or interest in the property or matter in question; or otherwise sufficiently identifying the person or persons intended. A citation, thus directed, has the same force and effect, as if it was directed to the person or per sons intended, by their names; and where the person

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