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PART III.

peace before whom the judgment appealed from was rendered, shall receive two dollars for his return. If the judgment be reversed for an error of fact in the proceedings not affecting

the merits, costs shall be in the discretion of the court. Term of- S 38. The term of office of the Commissioners of the Code missioners appointed by the act of April sixth, one thousand eight hunextended. dred and fifty-seven, is hereby extended until the first day of

April, one thousand eight hundred and sixty-five, but subject to all the provisions of said act.

S 39. Section thirty-seven of article second, title second, 1, of R. S. chapter first of the Revised Statutes in relation to the jurisrepealed. diction of the court of chancery is hereby repealed.

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CHAP 392.

. AN ACT to amend the Code of Procedure, and to repeal

section thirty-seven, article second, title second, chapter first, part third of the Revised Statutes.

Passed May 4, 1863; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

S 1. The act known as the Code of Procedure is hereby

amended as follows: Preferred Section thirteen is amended by adding at the end thereof

the following; and whenever in any action or proceeding in which the people of this state or any state officer, or any board of state officers, is or are sole plaintiff or defendant, an appeal has been or shall be brought from any judgment or order for or against him or them, in any court, such appeal shall have a preference in the supreme court and in the court of appeals, and may be moved by either party out of the order

on the calendar. Section 104 Section one hundred and four is hereby amended so as to amended as read as follows:

“If an action shall be commenced within the time prescribed therefor, and a judgment therein be reversed on appeal, the plaintiff, or if he die and the cause of action survive, his heirs or representatives may commence a new action within one year after reversal."

Section one hundred and sixteen is hereby amended by dongnaralan adding at the end thereof the following: “And in case an

infant defendant, having an interest in the event of the action, shall reside in any state, with which there shall not be a regular communication by mail, on such fact satisfactorily appearing to the court, the court may appoint a guardian ad litem, for such absent infant party, for the purpose of protecting the right of such infant in said action, and on such guardian ad litem, process, pleadings and notices in the action may

tion of actions.

Section 116 amended as ad litem.

CHAP, XI.

amended as

be served, in the like manner as upon a party residing in this state."

Section one hundred and fifty-four is hereby amended so as to read as follows:

“ If the answer contain a statement of new matter consti- Section 154 tuting a counter-claim, and the plaintiff fail to reply or demur to judgment thereto within the time prescribed by law, the defendant may to reply.

on failure move, on a notice of not less than ten days, for such judgment as he is entitled to upon such statement, and if the case require it, a writ of inquiry of damages may be issued."

Subdivision seven, and what follows it of section one hundred and sixty-seven, is hereby amended so as to read as follows:

"Seven. Claims against a trustee, by virtue of a contract, Section 167 or by operation of law. But the causes of action, so united, to joinder must all belong to one of these classes, and except in actions of claims. for the foreclosure of mortgages must affect all the parties to the action, and not require different places of trial, and must be separately stated. In actions to foreclose mortgages the court shall have power to adjudge and direct the payment, by the mortgagor, of any residue of the mortgage debt that may remain unsatisfied after a sale of the mortgaged premises, in cases in which the mortgagor shall be personally liable for the debt secured by such mortgage; and if the mortgage debt be secured by the covenant or obligation of any person other than the mortgagor, the plaintiff may make such person a party to the action, and the court may adjudge payment of the residue of such debt remaining unsatisfied after a sale of the mortgaged premises against such other person, and may enforce such judgment as in other cases."

Section one hundred and seventy-nine is hereby amended, in the fourth subdivision thereof, by adding to said subdivision the following words:

“Or when the action is brought to recover damages for Section 179 fraud or deceit."

Section two hundred and fifty-six is hereby amended by striking out all after the word "notice,” in the second paragraph, and adding to the said section the following: “In Section 256 every action in which issue of fact is now joined, and the to filing action is now placed upon the calendar of the supreme court issue and of the first judicial district, or of the superior court of the employing city of new York, or of the court of common pleas for the city phero in and county of New York, the party who shall have filed such York. note of issue, shall, as a condition precedent to such action being brought to trial, pay to the clerk of the court the sum of three dollars; and in every action in either of the said courts commenced after the passage of this act, the party who shall file therein a first note of issue of fact shall, as a condition precedent to such filing, pay to the clerk of the court the sum of three dollars; and the amounts so received shall be accounted for and paid over, monthly, by the clerk of

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city of New

PART III.

each of said courts, to the comptroller of the city of New York, and by him deposited in the county treasury, to be used as a fund for the payment of the salaries of stenographers employed in said courts, as provided for in this section. If the fund thus created be inadequate to pay such salaries, the additional amount necessary for such payment shall be appropriated and paid from the fund of county contingencies, to which fund any surplus of the sums so paid over to the comptroller, as hereinbefore provided, shall be credited.

“Each of the courts hereinbefore named shall appoint a stenographer for the circuit, trial term or special term, which constitutes a separate branch of such court, who shall be a sworn officer of the court, shall hold office during the pleasure of the court, and shall be paid a salary of fifteen hundred dollars per annum, in like manner as the salaries of other officers of the courts are now paid. It shall be the duty of every stenographer so appointed for any circuit, trial term or special term, under the direction of the presiding judge thereof, to take full stenographic notes of all proceedings in every trial thereat; and in case the presiding judge shall require a transcript of said stenographic notes, he may order the expense thereof to be paid equally by the parties to the action, at the rate of ten cents for every one hundred words so transcribed, and may enforce payment thereof, and the amount so paid, together with the sum paid as a condition precedent to the cause being brought to trial, or to the first note of issue being filed as hereinbefore provided, shall be deemed a necessary disbursement within the meaning of section three hundred and eleven of the Code of Procedure, and shall be allowed as such to the prevailing party in the action.

At any extra circuit, trial term or special term of said courts, the presiding judge thereof shall appoint a stenographer for such extra circuit or term, who shall, in like manner as aforesaid, be a sworn officer, and who shall be paid a compensation at the rate and in the manner hereinbefore provided.

“When a court of oyer and terminer shall be held in and for the city and county of New York, the presiding judge thereof shall designate one of the stenographers of the supreme court to act as stenographer of such court of oyer and terminer during its session, who shall in like manner as aforesaid, be a sworn officer, but who shall receive no compensation in addition to his salary as hereinbefore provided, except that in case a transcript of his stenographic notes, taken on the trial of any criminal cause, be required for the use of the presiding judge or the district attorney, the expense thereof shall, on the order of such judge or district attorney, be paid as a county charge at the rate hereinbefore specified.

“In other counties of this state, on trials of issues of fact, at any circuit court, or court of oyer and terminer, it shall be lawful for the presiding justice, in his discretion, to employ a

Stenographers in other counties.

CHAP, XI

report.

stenographer, who shall be entitled to such compensation as shall be certified by such justice, not exceeding five dollars for each day's attendance at such court at the request of such justice; which compensation shall be a charge upon the counties in which such courts shall be held respectively, and shall be audited, allowed and paid in like manner as other county charges are audited, allowed and paid. It shall be the duty of such stenographer to furnish to any party to such trials, upon request, a copy of the evidence and proceedings taken by him on such trials, or of such part thereof as may be required, on payment, on behalf of such party, of six cents for every one hundred words of the copy so furnished.” Section two hundred and seventy-three is hereby amended Section 273

amended as so as to read as follows: “In all cases of reference, the par- to appointties as to whom issues are formed in the action, (except when referoes and the defendant is an infant or an absentee) may agree in repking of writing upon a person or persons not exceeding three, and a reference shall be ordered to him or them, and to no other persons. And if such parties do not agree, the court shall appoint one or more referees, not more than three who shall be free from exception. And no person shall be appointed referee to whom all parties in the action shall object, except in actions for divorce. And no justice or judge of any court shall sit as referee in any action pending in the court of which he is judge, and not already referred. Unless the court shall otherwise order, or the parties otherwise stipulate, the referee or referees shall make and deliver a report within sixty days from the time the action shall be finally submitted, and in default thereof, said referee or referees shall not be entitled to receive any fees, and the action shall proceed as if no reference had been ordered.”

Section two hundred and ninety-two is hereby amended by Section 202 adding thereto the following: “Nor shall he be excused from to exami answering any question on the ground that he has, before the judgment examination, executed any conveyance assignment or trans- debtor. fer of his property for any purpose, but his answer shall not be used as evidence against him in any criminal proceeding or prosecution."

Section two hundred and ninety-four is hereby amended Section 294 by adding thereto the following words: “The proceedings to supplementioned in this section, and in section two hundred and proceed ninety-two, may be taken upon the return of an execution Ings. unsatisfied, issued upon a judgment recovered in an action against joint debtors, in which some of the defendants have not been served with the summons by which said action was commenced, so far as relates to the joint property of such debtors; and all actions by creditors, to obtain satisfaction of judgments out of the property of joint debtors, are maintainable in the like manner and to the like effect. These provisions shall apply to all proceedings and actions now

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Section 328

PART III, pending, and not actually terminated by any final judgment

or decree."

Section two hundred and ninety-eight is hereby amended by adding thereto the following:

“But before he shall be vested with any real property of Amended as such judgment debtor, a certified copy of said order shall

also be filed and recorded in the office of the clerk of the county in which any real estate of such judgment debtor sought to be affected by such order is situated, and also in the office of the clerk of the county in which such judgment debtor resides."

Section three hundred and seven is hereby amended by adding to subdivision three thereof the following words:

"And for attending the examination of a party before amended as trial, ten dollars; for making and serving a case, twenty dol

lars; and for making and serving amendments thereto, ten dollars."

Section three hundred and twenty-eight is hereby amended so as to read as follows:

“ If the appellant shall not, within twenty days after his amended as appeal is perfected, cause a certified copy of the notice of

appeal and of the judgment roll, or, if the appeal be from an order or any part thereof, a certified copy of such order and the papers upon which the order was granted, to be transmitted to the appellate court by the clerk with whom the notice of appeal is filed, the respondent may cause such certified copy to be transmitted by such clerk to the appellate court and recover the expenses thereof, as a disbursement on such appeal in case the judgment or order appealed from shall be in whole or in part affirmed, and this provision shall apply to all appeals heretofore taken where the appeal has not been dismissed in the manner provided by the rules of the appellate court."

Section three hundred and thirty-five is hereby amended so as to read as follows:

“If the appeal be from a judgment directing the payment aprended as of money, it shall not stay the execution of the judgment,

unless a written undertaking be executed on the part of the appellant, by at least two sureties, to the effect, that if the judgment appealed from or any part thereof be affirmed, or the appeal be dismissed, the appellant will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed, if it be affirmed only in part, and all damages which shall be awarded against the appellant upon the appeal. Whenever it shall be made satisfactorily to appear to the court that since the execution of the undertaking the sureties have become insolvent, the court may, by rule or order, require the appellant to execute, file and serve a new undertaking as above; and in case of neglect to execute such undertaking within twenty days after the service of a copy of the rule or order requiring

Section 335

to stay of execution on appeal.

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