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SEC. 20. To regulate supreme court commissioners.

21. To compel parties to produce books, papers, &c.

22. To prescribe cases where discovery may be compelled, &c.

23. Proceedings to obtain discovery; order thereon.

24. In what cases and by whom order may be vacated.

25. Proceedings may be stayed, until order obeyed.

26. Limitation on power of court, in compelling discovery. 27. Papers, &c. produced on order, how far evidence.

28. Duty of justices to revise rules at certain times.

TITLE 3.

and juris

$1. The supreme court shall possess the powers, and exercise Its powers the jurisdiction, which belonged to the supreme court of the diction. colony of New-York, with the exceptions, limitations and additions, created and imposed by the constitution and laws of this state.

the court.

§2. There shall be four several terms of the supreme court Terms of held in each year, commencing as follows, viz.: On the first Mondays of January, May and July, and the third Monday of October; which said terms shall respectively be called the January, May, July, and October terms of the said court.

Laws of 1823, 208, § 1.

$3. The terms shall be held at the following places :

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Places of holding

1. The January and October terms in each year, at the them. Capitol in the city of Albany:

2. The May term, in each year, at the City Hall, in the city

of New York: and,

3. The July term, in each year, at the Academy, in the town of Utica.

See Code, § 18.

may be

$4. The several terms may be continued and held from How long the commencement thereof, until and including the fifth held. Saturday after the commencement of each term; but no argument of any cause shall be heard during the fifth week of any term, unless by the consent of parties, or their counsel.

Laws of 1827, 61.

within

and when

sued, tested

S5. Each term, so far as respects the issuing, teste, and Process, return of process, except subpoenas, attachments, and writs what time of habeas corpus, shall be considered as ending on the second to be is Saturday after its commencement. All process, except where and returnotherwise provided by law, if issued in term, may be tested ed. on any day in that term, and made returnable on any day in the same term, or the next term; and if issued in the vacation, may be tested on any day in the preceding term, and be made returnable on any day in the next term.

1 R. L., 318, § 1; 3 H., 454; 19 W., 95.

ment upon

ance of

§ 6. If by reason of any casualty, neither of the justices of Adjourn the said court shall attend at any term thereof, on the first non-attendday of such term, it shall be the duty of the clerk of the said judges. court, at any time after five o'clock in the afternoon of such day, to open the said court by proclamation, and immediately to adjourn the same to the next day, and so to open and

TITLE 3.

Constables

to attend
court.

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adjourn the said court from day to day, until the justices of the said court, or one of them, shall appear; when the court shall proceed to business, as if it had been opened and adjourned by a justice thereof.

1 R. L., 318, § 4.

S7. The sheriff of the county, in which any term of the court of appeals or of the supreme court shall be held, shall, before the commencement of such term, summon two constables to attend the same. The constables so summoned, shall attend

16 the court, keep the court room in order, and act as criers of the court during its sitting; and the compensation allowed by law, for such attendance, on every day when the court shall actually sit, shall be paid out of the treasury of this state, but no allowance shall be made to such constables for serving as criers, in addition to the per diem compensation allowed to them by law, for such attendance. The expenses for fuel for courts, while sitting in any county, shall be audited, allowed and paid by the board of supervisors of such county, as other county expenses are: and no allowance shall be made to any sheriff for attending any such court.

Seals.

[198] Process,

how return

able.

How tested.

Before

whom pro-
ceedings,

&c., to be
stated.

Common re

Laws of 1847, ch. 429.

S8. The three seals of the court heretofore devised, and of which a description in writing has been deposited and recorded in the office of the secretary of this state, shall continue to be the seals of the court; and each clerk shall have the custody of one of them.

1 R. L., 320, § 8.

S9. All process returnable in the said court shall be made returnable as follows: "Before our justices of our supreme court of judicature, at the Capitol in the city of Albany," or "at the City Hall in the city of New York," or "at the Academy in the town of Utica," as the case may be.

Laws of 1823, 208, § 2.

S10. All process issuing out of the supreme court, shall be tested in the name of the chief justice, or if there be no chief justice, in the name of any justice of the court.

S11. Proceedings in the said court, and all pleadings and records therein, shall be stated to be "before the justices of the supreme court of judicature, of the people of the state of New York."

$12. The court shall, from time to time, by general rules, turn days. designate such days in each term, for common return days, and for the transaction of such special business, as shall be assigned for such days.

Powers and
duties of
clerks.

1 R. L., 318, § 2 and 6.

$ 13. At each term of the court, it shall be the duty of the clerk residing in the place in which the same is held, to attend and officiate as clerk. Each clerk of the court shall have the like powers, and be subject to the like duties.

TITLE 3.

§14. Each of the clerks of the supreme court shall appoint Deputies of some proper person to be his deputy, by writing under his clerks. hand and seal, to be filed in his office. Every person so Their oath. appointed deputy, shall take and subscribe the constitutional oath of office.

ers in

clerks.

$15. Whenever a clerk of the supreme court shall be Their powabsent from the county where his office is situated, or shall absence, be incapable of performing the duties of his office, and when- &c., of ever his office shall be vacant, his deputy so appointed, may perform all the duties appertaining to such office, during such absence, inability or vacancy.

papers.

16. The justices of the supreme court, may, from time to Removal of time, direct the removal of such records and papers as they shall think proper, from the clerks' offices, in the city of New York, and the town of Utica, to the clerk's office in the city of Albany; and may also, from time to time, direct the removal of any papers in a cause, from one clerk's office to another.

1 L. R., 320, § 7.

$17. The court may also from time to time, by an order to be entered in the minutes thereof, direct either of the clerks of the court, to destroy any pleadings nisi prius records or venires, now filed, or that may hereafter be filed in either of the clerk's offices, which the court shall deem to have become useless; but this provision shall not authorise the destruction of any judgment rolls, records or process, not herein before enumerated.

Certain papers may be

destroyed.

copies to be

$18. The supreme court reporter shall at his own expense, Reports, deliver one copy, bound in leather, of each successive volume furnished. of the reports published by him, to the several clerks of the [199] supreme court, and to the register and assistant register of the court of chancery, for the use of those courts; and also to the secretary of state, so many copies as shall be sufficient to supply the several courts of common pleas in this state, with one copy each.

1 R. L., 320, § 10.

$19. The supreme court shall have power, from time to Practice. time, by general rules, to establish, modify, alter and amend the practice in the said court, in the cases not provided for by any statute.

court com

$20. In cases not otherwise provided for, the supreme Supreme court shall have power, from time to time, by general rules, missioners. to prescribe the cases in which supreme court commissioners may grant orders to stay proceedings in causes and matters pending in the said court, and upon process issued therefrom; the effect of such orders; and the terms and conditions on which they shall be granted.

production

S21. The supreme court shall have power in such cases as To compel shall be deemed proper, to compel any party to a suit pending or papers, therein, to produce and discover books, papers and documents &c.

TITLE 3.

To prescribe the cases, &c.

Proceedings.

Order.

Order, when and by whom vacated.

Enforcing orders.

[200]

Ib. and limitation

of power.

Effect of

papers, &c., produced.

in his possession or power, relating to the merits of any such suit, or of any defence therein.

11 N. Y., 580; 32 B., 655; 12 Ab., 358; 13 How. P. R., 425; 8 How. P. R., 199; 5 How. P. R., 451; 9 W., 458; 1 Du., 661; 1 S. S. C., 663.

$ 22. The court shall, by general rules, prescribe the cases in which such discovery may be compelled, and the proceedings for that purpose, where the same are not herein provided; and therein the court shall be governed by the principles and practice of the court of chancery in compelling discovery, except that the costs of such proceedings shall always be awarded in the discretion of the court.

2 Ed., 605; 1 Du., 655; 15 How. P. R., 301; 8 How. P. R., 199; 6 How. P. R., 398.

$ 23. To entitle a party to any such discovery, he shall present a petition, verified by oath, to the court, or to any justice thereof, or to any circuit judge in vacation, upon which an order may be granted by the court or such officer, for the discovery sought, or that the party against whom the same is sought should shew cause why the prayer of such petition should not be granted.

18 W., 529; 2 Ed., 605.

S24. Every such order may be vacated by the officer granting the same, or by the court,

1. Upon satisfactory evidence that it ought not to have been granted:

2. Upon the discovery sought, being made:

3. Upon the party required to make the discovery, denying on oath, the possession or control of the books, papers or documents, ordered to be produced.

4 Ab., 41.

$25. The court shall provide by general rules, for the staying of the proceedings of any party, against whom such discovery shall have been ordered, either by the court or by an officer, until the same shall have been complied with or vacated.

$ 26. In case of the party refusing or neglecting to obey such order for a discovery, within such time as the court shall deem reasonable, the court may non-suit him, or may strike out any plea or notice he may have given, or may debar him from any particular defence in relation to which such discovery was sought; and the power of the court to compel such discovery, shall be confined to the remedies herein provided, and shall not extend to authorise any other proceedings against the person or property of the party so refusing or neglecting.

4 W., 196; 3 How. P. R., 360.

S 27. The books, papers and documents produced under any order made in pursuance of the preceding sections, shall have the same effect, when used by the party requiring them,

as if produced upon notice, according to the practice of the court.

TITLE 4.

revised.

$28. The justices of the supreme court, within two years Rules to be after this Chapter shall commence and take effect, and at the expiration of every seven years thereafter, shall revise the rules of the said court, with a view to the attainment so far as may be practicable, of the following improvements in the practice:

1. The abolishing of fictitious and unnecessary process and proceedings:

2. The simplifying and abbreviating of pleadings and proceedings:

3. The expediting the decision of causes:

4. The diminishing of costs: and,

5. The remedying of such abuses and imperfections, as may be found to exist in the practice, in any class of actions cognizable in the said court.

10 N. Y., 388.

See Laws of 1847, ch. 280, ch. 429, ch. 470; 1848, ch. 185, ch. 277; 1849, ch. 375; 1862, ch. 375; Code of Procedure, Title III, Part I.

TITLE IV.

OF THE CIRCUIT COURTS, SITTINGS, AND COURTS OF OYER
AND TERMINER.

SEC. 1. Division of state into eight circuits.

2. Circuits subject to alteration by legislature.

3. Powers of circuit judges.

4. Four circuits each year in New-York, and two in other counties.

5. Times and places of holding them, when appointed.

6. Places at which courts shall be held.

7. Lists of appointments to be transmitted to county clerks.

8. And to state printer; how to be published.

9. Mode of publication; expense how defrayed.

10. Courts to be held during pleasure of the judge.

11. Circuits in New-York may be adjourned.

12. Duty of circuit judges to attend circuits.

13. Powers and duties of circuit courts.

14. Each justice of supreme court, and each circuit judge, may hold circuits.

15. Notice of vacancy in office of circuit judge.

16. Circuit judge to give notice of his inability to hold courts.

17 & 18. Who to hold circuits, &c., in such cases.

19. Circuits, how adjourned, if judge does not appear.

20. If judge attends on second day, courts to be opened.

21. If judge does not attend on second day, courts to be adjourned.

22. Persons recognized to appear at next court.

23. Proceedings if county judges do not attend.
24. New appointment of circuit to be made.
25. Notice of appointment to be published.

26. Sittings for New York, how appointed.

27. A term to intervene before sitting of such court.
28. When courts of oyer and terminer to be held.

29. Powers of courts of oyer and terminer.
30. To try indictments found at general sessions.

II. - 27

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