witness on his own behalf, in respect to such new matter, and shall be so received. See post, Laws of 1863, ch. 392. 19 B., 510; 18 B., 326; 15 B., 451; 14 B., 536; 10 How. P. R., 49, 12 CHAP. XI. whom ac $396. A person for whose immediate benefit the action is Persons for prosecuted or defended, though not a party to the action, may tion is be examined as a witness, in the same manner, and subject to brought the same rules of examination, as if he were named as a party. may be 11 B., 645; 6 How. P. R., 443. or defended amined. party. $397. A party may be examined on behalf of his co-plain- Examinatiff or of a co-defendant, as to any matter in which he is not ton of cojointly interested or liable with such co-plaintiff or co-defendant, and as to which a separate and not joint verdict or judgment can be rendered. And he may be compelled to attend in the same manner as at the instance of an adverse party, but the examination thus taken shall not be used in the behalf of the party examined. And whenever in the case mentioned in sections three hundred and ninety and three hundred and ninety-one, one of the several plaintiffs or defendants, who are joint contractors, or are united in interest, is examined by the adverse party, the other of such plaintiffs or defendants may offer himself as a witness to the same cause of action, or defense, and shall be so received. As amended by Laws of 1851, ch. 479; 1852, ch. 392. 17 N. Y., 513; 14 N. Y., 483; 11 N. Y., 131; 32 B., 656; 27 B., 348; 15 CHAPTER VII. EXAMINATION OF WITNESSES. SEC. 398. No witness to be excluded by reason of interest. 399. Parties may be examined as witnesses in certain cases. May be examined by commission. Assignor as witness. $398. No person offered as a witness, shall be excluded by No witness reason of his interest in the event of the action. 23 16 N. Y., 417, 547; 12 N. Y., 374; 9 N. Y., 157, 173; 3 N. Y., 490; to be exclu ded by reason of interest. actions may § 399. A party to an action or special proceeding, including Parties to proceedings in surrogates' courts and proceedings for the sum- be examin mary recovery of the possession of land, may be examined as ed in cer a witness on his own behalf, or in behalf of any other party, in the same manner, and subject to the same rules of examination as any other witnesses; provided, however, that the assignor of a thing in action shall not be examined in behalf of said party, nor shall a party to an action be examined in his own behalf, in respect to any transaction or communication had personally by said assignor, or said party, respectively, with a deceased person against parties who are the executors, administrators, heirs-at-law, next of kin or assignees PART III Definition of such deceased person, where they have acquired title to the cause of action, immediately from said deceased person, or have been sued as such executors, administrators, heirs-at-law, next of kin or assignees. But where such executors, administrators, heirs-at-law, next of kin or assignees shall be examined on their own behalf in regard to any conversation or transaction had between the deceased person, and said assignor or said party, respectively, then the said assignor or the said party may be examined in regard to such conversation or transaction, but not in regard to any new matter. Amended by Laws of 1851, ch. 479; 1857, ch. 353; 1858, ch. 306; 1859, ch. 428; 1860, ch. 459; 1862, ch. 460; 1863, ch. 392. 23 N. Y., 88; 22 N. Y., 353; 16 N. Y., 417; 14 N. Y., 469; 13 N. Y., 293; 12 N. Y., 374; 9 N. Y., 157, 173; 3 N. Y., 490; 32 B., 519; 31 B., 520; 30 B., 341, 517; 29 B., 177; 28 B., 84; 27 B., 351; 25 B., 437, 597; 21 B., 275; 18 B., 410, 532; 16 B., 261, 580; 15 B., 318; 14 B., 655; 12 B., 340, 366; 11 B., 472, 635, 649; 22 How. P. R., 375; 19 How. P. R., 34, 86; 18 How. P. R., 169; 17 How. P. R., 258, 428; 16 How. P. R., 187; 15 How. P. R., 165, 278, 289; 14 How. P. R., 75; 13 How. P. R., 198; 12 How. P. R., 73, 163; 11 How. P. R., 248, 404; 10 How. P. R., 60, 94, 395, 555; 8 How. P. R., 342; 7 How. P. R., 1; 6 How. P. R., 128, 397; 12 Ab., 1, 247, 322, 421; 9 Ab., 40; 8 Ab., 66, 335; 7 Ab., 21, 415; 6 Ab., 288; 3 Ab., 31; 2 Ab., 106, 153. CHAPTER VIII. MOTIONS AND ORDERS. SEC. 400. Definition of an order. 401. Definition of a motion. Motions, how and where made. 402. When notice is necessary, it must be eight days before hearing. 403. In actions in supreme court, county judge may act at chambers. His orders how reviewed. 404. In absence of judge at chambers, motion may be transferred by him to another judge. 405. Enlarging time for proceedings in an action. S400. Every direction of a court or judge, made or entered of an order. in writing, and not included in a judgment, is denominated an order. Motion, what is, how and where made 18 How. P. R., 83; 15 How. P. R., 61, 117; 8 How. P. R., 276; 7 How. P. R., 360; 6 How. P. R., 127; 6 Ab., 13; 3 Ab., 387. S401. 1. An application for an order is a motion. 2. Motions may be made in the first judicial district to a judge or justice out of court, except for a new trial on the merits. 3. Orders made out of court, without notice, may be made by any judge of the court, in any part of the state; and they may also be made by a county judge of the county where the action is triable, or by the county judge of the county in which the attorney for the moving party resides, except to stay proceedings after verdict. 4. Motions upon notice must be made within the district in which the action is triable, or in a county adjoining that in which it is triable; except that, where the action is triable in the first judicial district, the motion must be made therein, and no motion upon notice can be made in the first judicial district in an action triable elsewhere. 5. In all the districts, a motion to vacate or modify a provisional remedy, and an appeal from an order allowing a provisional remedy, shall have preference over all other motions. 6. No order to stay proceedings for a longer time than twenty days shall be granted by a judge out of court, except upon previous notice to the adverse party. CHAP. XI. ferec may ed, and wit nesses sub pœnaed. When any party intends to make or oppose a motion in When reany court of record, and it shall be necessary for him to have be appointthe affidavit of any person who shall have refused to make the same, such court may by order appoint a referee to take the affidavit or deposition of such person. Such person may be subpoenaed and compelled to attend and make an affidavit before such referee, the same as before a referee to whom it is referred to try an issue. And the fees of such referee for such service shall be three dollars per day. Amended by Laws of 1852, ch. 392; 1858, ch. 306; 1859, ch. 428; 1862, 19 B., 587; 17 B., 229; 16 B., 590; 20 How. P. R., 441; 18 How. P. R., When nocessary, it tice is ne. $402. When a notice of a motion is necessary, it must be served eight days before the time appointed for the hearing; but the court or judge may, by an order to show cause, pre- eight days scribe a shorter time. 6 How. P. R., 350; 13 Ab., 76; 12 Ab., 294; 7 Ab., 75; 5 Ab., 419. must be before hearing. in supreme county act at $403. In an action in the supreme court, a county judge, In actions in addition to the powers conférred upon him by this act, may court, exercise, within his county, the powers of a judge of the judge may supreme court at chambers, according to the existing practice, chambers. except as otherwise provided in this act. And in all cases His orders, where an order is made by a county judge, it may be reviewed viewed. in the same manner as if it had been made by a judge of the supreme court. 9 B., 387; 11 How. P. R., 204; 5 How. P. R., 386; 12 Ab., 293. how re &c., of chambers. may be another Enlaging S404. When notice of a motion is given, or an order to In absence, show cause is returnable, before a judge out of court, and at judge at the time fixed for the motion, he is absent, or unable to hear it, motion the same may be transferred, by his order, to some other judge, transferred before whom the motion might originally have been made. by him to $405. The time within which any proceeding in an action judge. must be had, after its commencement, except the time within time for which an appeal must be taken, may be enlarged, upon an in an action proceeding affidavit showing grounds therefor, by a judge of the court, or if the action be in the supreme court, by a county judge. The affidavit, or a copy thereof, must be served with a copy of the order, or the order may be disregarded. 11 N. Y., 275; 18 How. P. R., 324; 14 How. P. R., 19, 313, 430; 13 PART III. Affidavits defectively entitled, valid. CHAPTER IX. ENTITLING AFFIDAVITS. SEC. 406. Affidavits defectively entitled, valid. S406. It shall not be necessary to entitle an affidavit in the action; but an affidavit made without a title, or with a defective title, shall be as valid and effectual, for every purpose, as if it were duly entitled, if it intelligibly refer to the action or proceeding in which it is made. 1 N. Y., 612; 6 How. P. R., 108, 179. CHAPTER X. Time, how SEC. 407. Time, how computed. $407. The time within which an act is to be done, as herein computed. provided, shall be computed, by excluding the first day and including the last. If the last day be Sunday, it shall be excluded. Notices and other 28 B., 286; 8 How. P. R., 385; 5 How. P. R., 117; 6 Ab., 289. CHAPTER XI. NOTICES, AND FILING AND SERVICE OF PAPERS. SEC. 408, 409. Notices and other papers, how served on party or attorney. 410, 411. When and how served by mail. 412. Double time, when served by mail. 413. Eight days' notice of motion, &c., before court or judge, when personally served. 414. Where papers need not be served on defendant. 415. Service of papers where party resides out of the state. 416. Summons and pleadings to be filed within ten days after service. 417. Service, where party appears by attorney. 418. This chapter not to apply to summons or process, or to papers to bring party into contempt. $408. Notices shall be in writing; and notices and other papers, how papers may be served on the party or attorney, in the manner prescribed in the next three sections, where not otherwise provided by this act. Berved on party or attorney. Id. 5 How. P. R., 310, 354. $409. The service may be personal, or by delivery to the party or attorney on whom the service is required to be made, or it may be as follows: 1. If upon an attorney, it may be made during his absence from his office, by leaving the paper with his clerk therein, or with a person having charge thereof; or when there is no person in the office, by leaving it, between the hours of six in the morning and nine in the evening, in a conspicuous place in the office, or if it be not open, so as to admit of such service, then by leaving it at the attorney's residence, with some person of suitable age and discretion; 2. If upon a party, it may be made by leaving the paper at his residence, between the hours of six in the morning and nine in the evening, with some person of suitable age and discretion. 8 B., 389; 15 How. P. R., 363; 6 How. P. R., 194.. CHAP. XI. by mail $410. Service by mail may be made, where the person when and making the service and the person on whom it is to be made how served reside in different places, between which there is a regular communication by mail. 15 How. P. R., 363; 4 How. P. R., 246; 10 Ab., 204. S411. In case of service by mail, the paper must be id. deposited in the post office, addressed to the person on whom it is to be served, at his place of residence, and the postage paid. 20 N. Y., 557; 10 How. P. R., 460; 10 Ab., 204. time, when S412. Where the service is by mail, it shall be double the Double time required in cases of personal service: Except service of served by notice of trial, which may be made sixteen days before the day of trial, including the day of service. As amended by Laws of 1859, ch. 428. 7 How. P. R., 132; 5 How. P. R., 75. mail. notice of motion, &c. before court or judge, when per gonally S413. Notice of a motion, or other proceeding, before a Eight days' court or judge, when personally served, shall be given at least eight days before the time appointed therefor. S414. Where a defendant shall not have demurred or answered, service of notice or papers, in the ordinary proceedings in an action, need not be made upon him, unless he be pers need imprisoned for want of bail, but shall be made upon him or served on his attorney, if notice of appearance in the action has been defendant. given. 8 How. P. R., 68, 346. served. When på not to be papers, ty resides $415. Where a plaintiff or a defendant who has demurred Service of or answered, or gives notice of appearance, resides out of the where parstate, and has no attorney in the action, the service may be out of the made by mail, if his residence be known, if not known, on the state. clerk for the party. 4 Ab., 354. Summons ings to be ten days and plead filed within S416. The summons, and the several pleadings in an action, shall be filed with the clerk within ten days after the service thereof, respectively, or the adverse party, on proof of the omission, shall be entitled, without notice, to an order from a vice. judge that the same be filed within a time to be specified in the order, or be deemed abandoned. $ 417. Where a party shall have an attorney in the action, the service of papers shall be made upon the attorney, instead of the party. 8 How. P. R., 68; 5 How. P. R., 115; 7 Ab., 325, $418. The provisions of this chapter shall not apply to the service of a summons, or other process, or of any paper bring a party into contempt. CHAPTER XII. DUTIES OF SHERIFFS AND CORONERS.. to after ser Service, where par by attorney. This chapapply to ter not to summons party into Duty of SEC. 419. Duty of sheriff and coroner in serving and executing process, and how enforced. $419. Whenever, pursuant to this act, the sheriff may be required to serve or execute any summons, order, or judgment, coroner in sheriff and |