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CHAP, XI.

franchise

of forfeit

a corpora

recover, by action, the damages which he shall have sustained by reason of the usurpation by the defendant of the office, from which such defendant has been excluded.

25 B., 75; 3 Ab., 238. S 440. Where several persons claim to be entitled to the One action

against same office or franchise, one action may be brought against several perall such persons, in order to try their respective rights to such ing ofice or office or franchise.

20 B., 522; 5 Ab., 180. S 441. When a defendant, whether a natural person or a cor- Penalty for

asurping poration, against whom such action shall have been brought, office or

franchise, shall be adjudged guilty of usurping or intruding into, or how unlawfully holding or exercising any office, franchise or privi- awarded. lege, judgment shall be rendered, that such defendant be excluded from such office, franchise or privilege, and also that the plaintiff recover costs against such defendant. The court may also, in its discretion, fine such defendant a sum not exceeding two thousand dollars, which fine, when collected, shall be paid into the treasury of the state.

20 B., 522; 6 Ab., 224; 3 Ab., 238. S 442. If it shall be adjudged, that a corporation, against Judgment which an action shall have been brought, pursuant to this ure against chapter, has by neglect, abuse, or surrender, forfeited its cor- ticor. porate rights, privileges and franchises, judgment shall be rendered, that the corporation be excluded from such corporate rights, privileges and franchises, and that the corporation be dissolved.

20 B., 523. S 443. If judgment be rendered in such action, against a Costs corporation or against persons claiming to be a corporation, poration the court may cause the costs therein to be collected, by exe- cialming to cation against the persons claiming to be a corporation, or by howuchs

be , attachment or process against the directors or other officers of lected. such corporation.

20 B., 522. S 444. When such judgment shall be rendered against a Restraining corporation, the court shall have the same power to restrain and apthe corporation, to appoint a receiver of its property, and to or receiver.

pointment take an account, and make distribution thereof among its creditors, as are given in article three, title four, chapter eight, of the third part of the Revised Statutes ; and it shall be the duty of the attorney-general, immediately after the rendition of such judgment, to institute proceedings for that purpose.

24 B., 273: 4 Ab., 341. $ 445. Upon the rendition of such judgment against a cor- copy of

judgment poration, or for the vacating or annulling of letters patent, it roll against shall be the duty of the attorney-general to cause a copy of cheation the judgment roll to be forth with filed in the office of the be filed. secretary of state.

against cor

or

20 B., 523.

where

of

PART III. Entry of

$ 446. Such secretary shall thereupon, if the record relates judgment relating to

to letters patent, make an entry in the records of the commisletters pa- sioners of the land office, of the substance and effect of such tent in records of judgment, and of the time when the record thereof was Sioners op docketed, and the real property granted by such letters patent, land oftice.

may thereafter be disposed of by such commissioners, in the

same manner as if such letters patent had never been issued. Actions for $ 447. Whenever by the provisions of law, any property, forfeiture of property to real or personal, shall be forfeited to the people of this state, the people.

or to any officer for their use, an action for the recovery of such property, alleging the grounds of the forfeiture, may be brought by the proper officer, in the supreme court.

CHAPTER III,

Provisions of Revised Statutes, applicable to actions for partition.

ACTION FOR THE PARTITION OF REAL PROPERTY.
SEC. 448. Provisions of Revised Statutes, applicable to actions for partition.

$448. The provisions of the Revised Statutes relating to the partition of lands, tenements and hereditaments, held or possessed by joint tenants or tenants in common shall apply to actions for such partition brought under this act, so far as the same can be so applied to the

substance and subject matter of the action, without regard to its form.

22 B., 367; 11 Ab., 455; 2 Ab., 7, 17.

CHAPTER IV.

claims to real

ACTIONS TO DETERMINE CONFLICTING CLAIMS TO REAL PROPERTY, AND

FOR WASTE AND NUISANCE.
Sec. 449. Actions to determine claims to real property, how prosecuted.

450. Action of waste abolished. Waste, how remediable.
451. Provisions of Revised Statutes applicable to actions for waste, under this act.
452. When judgment of forfeiture and eviction to be given.
453. Writ of nuisance abolished.

454. Remedy for injuries heretofore remediable by writ of nuisance. Actions to $ 449. Proceedings to compel the determination of claims determine

to real property, pursuant to the provisions of the Revised perty, how Statutes, may be prosecuted by action under this act, without prosecuted. regard to the forms of the proceedings as they are prescribed by those statutes.

24 B., 410; 18 B., 332; 5 How. P. R., 372. Actions of $ 450. The action of waste is abolished, but any proceeding waste, abo- heretofore commenced, or judgment rendered or right acquired lished. Waste, how shall not be affected thereby. Wrongs heretofore remediable remediable.

by action of waste, are subjects of action as other wrongs, in which action there may be judgment for damages, forfeiture of the estate of the party offending, and eviction from the premises.

26 B., 413; 22 B., 367; 11 B., 598. Provisions of Revised S 451. The provisions of the Revised Statutes relating to Statutes the action of waste shall apply to an action for waste, brought applicable to action under this act, without regard to the form of the action, so for waste under this far as the same can be so applied.

26 B., 413.

act

CHAP. XI.

$452. Judgment of forfeiture and eviction shall only be when given, in favor of the person entitled to the reversion, against judgment of the tenant in possession, when the injury to the estate in and evic.

tion to be reversion shall be adjudged in the action to be equal to the given. value of the tenant's estate, or unexpired term, or to have been done in malice.

26 B., 413. $ 453. The writ of nuisance is abolished; but any proceed- Writ of ing heretofore commenced, or any judgment rendered, or abolished. right acquired, shall not be affected thereby.

24 B., 410; 22 B., 367; 16 B., 568. $ 454. Injuries heretofore remediable by writ of nuisance, Remedy

for injuries are subjects of action, as other injuries, and in such action heretofore there may be judgment for damages, or for the removal of the by writ of

nuisanco. nuisance, or both.

24 B., 410; 16 B., 565.

remediable

CHAPTER V.

GENERAL PROVISIONS RELATING TO ACTIONS CONCERNING REAL

PROPERTY. Sec. 455. Provisions of Revised Statutes applicable thereto. : $ 455. The general provisions of the Revised Statutes re- Provisions

of Revised lating to actions concerning real property, shall apply to Statutes

applicable actions brought under this act, according to the subject matter thereto. of the action, and without regard to its form.

23 B., 235; 22 B., 362; 21 B., 265; 18 B., 499; 14 How. P. R., 440; 13

How. P. R., 37; 12 How. P. R., 402; 4 Ab., 308.

TITLE XIV.

PROVISIONS RELATING TO EXISTING SUITS.
Sec. 456. Appeal from order at a special term, on a summary application, after judgment.

457. Writ of error in all cases abolished. Appeal substituted.
458. Execution when issuable on a judgment docketed before July 1, 1848.
459. Future proceedings, Code to control.
460. Appeals from final decrees, by a single judge, in supreme court, in suits in

equity pending on July 1, 1847, when to be taken. 461. Issues of fact in county court or common pleas before July 1, 1848, how tried. $ 456. The appeal, mentioned in section 9, of the act to Appeal

from order facilitate the determination of existing suits in the courts of at a special this state, may also be taken, from an order, made at a spe- summary cial term, on a summary application in an action after judg- apei sudga

application ment, when such order involves the merits of the application, ment. or some part thereof.

$ 457. No writ of error shall be hereafter issued, in any Writ of case whatever. Wherever a right now exists to have a re- cases aboview of a judgment rendered, or order or decree made before the first day of July, 1848, such review can only be had upon Appeal sudan appeal taken in the manner provided by this act, and all appeals heretofore taken from such judgments, orders or decrees under the provisions of the Code of Procedure, which are still pending in an appellate court, and not dismissed,

error in all

PART III.

Execution when issuable on a judgment docketed

1, 1848

Future prooeedings, Code to control.

shall be valid and effectual. But this section shall not extend the right of review, to any case or question to which it does not now extend, nor the time for appealing, nor shall it apply to a case where a writ of error has been already issued.

S 458. An execution may be issued without leave of the court upon a judgment docketed before the first day of July,

1848, or now or hereafter to be rendered in an action pending helistas. July on that day, at any time within five years after rendering of

the judgment.

S 459. The provisions of this act apply to future proceedings in actions or suits heretofore commenced and now pending, as follows:

1. If there have been no pleading therein, to the pleadings and all subsequent proceedings;

2. When there is an issue of law or of fact, or any other question of fact to be tried, to the trial and all subsequent proceedings;

3. After a judgment or order, to the proceedings to enforce, vacate, modify or reverse it, including the costs of an appeal.

Whenever the judges of the supreme court in any district find that the court, at any term or circuit, has not been, or will not be able to dispose of all the cases upon the calendar, they may request the governor to assign other judges, and, if necessary, appoint extraordinary terms and circuits for the purpose of disposing of such cases. The governor may thereupon make such assignment, and the judges assigned must hold courts accordingly.

As amended by Laws of 1851, ch. 479.
19 B., 531; 14 B., 570; 13 B., 92; 14 How. P. R., 187; 4 Ab., 359; 2 Ab.,

163; 1 Ab., 119, 181. $ 460. An appeal may be taken from any final decree decrees by a entered upon the direction of a single judge, in any suit in single judge equity pending in the supreme court, on the first day of July, suits pend: one thousand eight hundred and forty-seven, at any time ing ori July

before the first day of November, one thousand eight hunhow taken. dred and fifty-two. But this provision shall not apply to

cases where a rehearing has already been had or ordered, or to the case of a decree entered before the passage of this act, and to review which no attempt in good faith has been, or shall have been made within thirty days after notice of the entry of such decree. Such appeal shall be taken in the manner provided in sections three hundred and twenty-seven and three hundred and forty-eight.

In all cases of appeal to the court of appeals, in actions which were originally commenced in the late court of chancery of this state, the court of appeals shall review the cause upon the facts and the law, without any statement or specification of facts found, or any exception taken, at the trial of any or either of them. And it shall be, and is hereby declared to be

Appeals

equity

1, 1847, when and

CHAP, XI.

fact in

wise agree.

the duty of the court of appeals, in any and all such cases, to review the whole matter upon the evidence as well as the law.

As amended by Laws of 1851, ch. 479; 1852, ch. 392; 1858, ch. 306.

19 N. Y., 530; 10 N. Y., 389; 4 How. P. R., 145. $ 461. An issue of fact joined in a county court, or court of Issue

of common pleas, before the first day of July, one thousand county eight hundred and forty-eight, or then pending in that court common on appeal, shall be tried by a jury, unless the parties other- pleas, be

fore July 1, 1848, how

tried. TITLE XV.

GENERAL PROVISIONS. Sec. 462. Definition of "real property."

463. Definition of " personal property." 464. Definition of "property." 465. Definition of " district." 466. Definition of "clerk." 467. Rule of strict construction of statutes inapplicable to this act. 468. Statutory provisions inconsistent with this act repealed. 469. Rules and practice inconsistent with this act abrogated. 470. Judges of supreme court to make general rules. 471. This act not to affect certain proceedings and statutory provisions. 472. Certain parts of revised and other statutes not repealed. 473. This act, when to take effect. $ 462. The words “real property,” as used in this act are Definition co-extensive with lands, tenements and hereditaments. property."

9 N. Y., 148; 2 Ab., 235. $ 463. The words “personal property," as used in this act, Definition include money, goods, chattels, things in action, and evi- sonal prodences of debt.

perty.' 9 N. Y., 148; 2 Ab., 234. S 464. The word "property,” as used in this act, includes Definition property real and personal.

perty." 9 N. Y., 148; 30 B., 61; 12 Ab., 60; 10 Ab., 88; 2 Ab., 234, 247. $ 465. The word “district," as used in this act, signifies Definition judicial district, except when otherwise specified.

trict." $ 466. The word “clerk," as used in this act, signifies the Definition clerk of the court where the action is pending, and in the supreme court, the clerk of the county mentioned in the title of the complaint, or in another county to which the court may have changed the place of trial, unless otherwise specified.

6 How. P. R., 191. $ 467. The rule of common law, that statutes in derogation Rule of of that law are to be strictly construed, has no application to struction of

applicablo 16 B., 510. $ 468. All statutory provisions inconsistent with this act, Statutory are repealed; but this repeal shall not revive a statute or law inconsist

provisions which may have been repealed or abolished by the provisions ents with hereby repealed. And all rights of action given or secured by repealed. existing laws, may be prosecuted in the manner provided by this act. If a case shall arise in which an action for the

of

pro

11

strict con

this act.

statuteg, in

to this act,

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