order grant trial to courts of appeals, on case made, shall be CHAP. 781. AN ACT to amend an act entitled "An act to simplify and abridge the practice, pleadings and proceedings of the courts of this State," passed April twelfth, eighteen hundred and forty-eight. PASSED April 25, 1867. The People of the State of New York, represented in Senate and Assembly, do enact as follows: SECTION 1. The second subdivision of the eleventh section of an act entitled "An act to simplify and abridge the practice, pleadings and proceedings of the courts of this state." passed April twelfth, eighteen hundred and forty-eight, is hereby amended so as to read as follows: In what 2. In an order affecting a substantial right, made in such case appeal from an action, when such order in effect determines the action and ing a new prevents a judgment from which an appeal might be taken or discontinues the action, and when such order grants or refuses a new trial; but no appeal to the court of appeals from an order granting a new trial, on a case made or bill of exceptions, exceptions, shall be effectual for any purpose, unless the efiectual. notice of appeal contain an assent on the part of the appellant, that if the order be affirmed, judgment absolute shall When court be rendered against the appellant. Upon every appeal from to render an order granting a new trial on a case made or on excepJudgment tions taken, if the court of appeals shall determine that no upon right error was committed in granting the new trial, they shall of appelrender judgment absolute upon the right of the appellant; and after the proceedings are remitted to the court from which the appeal was taken, an assessment of damages or other proceedings to render judgment effectual, may be then and there had, in cases where such subsequent proceedings are requisite." of appeals absolute Jant. In what cases ap Ante, vol. 5, p. 4. S2. Section eleven of said act is hereby amended by adding as subdivision four the following: 4. An appeal from any order to the court of appeals affecting peal to be a substantial right, arising upon any interlocutory proceeding, or upon any question of practice in the action, may be heard as a motion, and noticed for hearing for any regular motion day of the court. heard as a motion. Number of Judges whose concur rence is Ante, vol. 5, p. 4. S3. The fourteenth section of the said act is hereby amended so as to read as follows: 14. The concurrence of five judges is necessary to pronounce a judgment. If five do not concur, the case must be reheard. But no more than two rehearings shall be had, and to judg opinions to if on the second rehearing, five judges do not concur, the necessary judgment shall be affirmed. When five of the judges do not ment. concur, and a rehearing of the case is ordered, the judges When shall file the opinions read by them with the reporter of the be filed with court, but such opinions shall not be published. No person and who to other than the judges of the court, the reporter of the court, to them. or the counsel or attorney of either of the parties to the action, shall have access to or a copy of the said opinions, but such counsel or attorney may have access to and a copy thereof. Ante, vol. 5, p. 5. $ 4. Subdivision four of section sixty-four of said act is bereby amended so as to read as follows: reporter, have access may 4. The answer may contain a denial of the complaint, or what of any part thereof, and also a notice in a plain and direct answer; manner of any facts constituting a defense or counter-claim. contain. Ante, vol. 5, p. 18. § 5. Section ninety-nine of said act is hereby amended so as to read as follows: actions are com $99. An action is commenced as to each defendant when When the summons is served on him, or on a co-defendant, who is a joint contractor, or otherwise united in interest with him. menced. An attempt to commence an action is deemed equivalent to the commencement thereof within the meaning of this title, when the summons is delivered, with the intent that it shall be actually served, to the sheriff or other officer of the county in which the defendants or one of them usually or last resided; or, if a corporation be defendant, to the sheriff or other officer of the county in which such corporation was established by law, or where its general business was transacted, or where it kept an office for the transaction of business. Ante, vol. 5, p. 27. § 6. Section one hundred of said act is hereby amended so as to read as follows: ment of etc. out of 100. If, when the cause of action shall accrue against commenceany person, he shall be out of the state, such action may be actions commenced within the terms herein respectively limited, after against perthe return of such person into this state; and if, after such the state, cause of action shall have accrued, such person shall depart from and reside out of this state, or remain continuously absent therefrom for the space of one year or more, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action. Ante, vol. 5, p. 28. § 7. Section one hundred and eighteen of said act is hereby amended so as to read as follows: be made 118. Any person may be made a defendant who has or who may claims an interest in the controversy adverse to the plaintiff, defendants. or who is a necessary party to a complete determination or settlement of the questions involved therein; and in an action In what cases land lord and tenart may be joined as defend ants. Commissions receivers of foreign cor to recover the possession of real estate, the landlord and tenant thereof may be joined as defendants; and any person claiming title or a right of possession to real estate may be made parties plaintiff or defendant, as the case may require, to any such action. Ante, vol. 5, p. 32. S8. Subdivision four of section two hundred and forty-four of said act is hereby amended so as to read as follows: 4. In the cases provided in this Code and by special allowed statutes, when a corporation has been dissolved, or is insolvproperty of ent or in imminent danger of insolvency, or has forfeited its porations. Corporate rights; and in like cases, of the property within this state of foreign corporations. Receivers of the property within this state of foreign or other corporations shall be allowed such commissions as may be fixed by the court appointing them, not exceeding five per cent on the amount received and disbursed by them. Within what time to a deci Ante, vol. 5, p. 67. S9. The first paragraph of section two hundred and sixtyeight is hereby amended so as to read as follows: (1.) For the purposes of an appeal either party may except exception to a decision on a matter of law arising upon such trial within sion on ten days after notice in writing of the judgment, in the same manner and with the same effect as upon a trial by jury; Pope may provided, however, that where the decision filed under section matter of law for pur of appeal etc. Effect of filing Judg. ment roll two hundred and sixty-seven does not authorize a final judgment, but directs further proceedings before a referee or otherwise, either party may move for a new trial at general term, and for that purpose may, within ten days after notice of the decision being filed, except thereto and make a case or exceptions as above provided in case of an appeal. Ante, vol. 5, p. 75. S 10. Section two hundred and eighty-two of said act is hereby amended so as to read as follows: § 282. Upon filing a judgment roll upon a judgment, directing in whole or in part the payment of money, it may be docketed with the clerk of the county where the judgment recting payroll was filed, and in any other county upon the filing with on Judg. ment di ment of money. the clerk thereof a transcript of the original "docket," and shall be a lien on the real property in the county where the same is docketed, of every person against whom any such judgment shall be rendered, and which he may have at the time of the docketing thereof in the county in which such real property is situated, or which he shall acquire at any time thereafter, for ten years from the time of docketing the same in the county where the judgment roll was filed. But the to be a lien. time during which the party recovering or owning such judgment shall be or shall have been restrained from proceeding thereon by any order of injunction or other order, or by the For how long a time judgment for what erty. operation of any appeal, shall not constitute any part of the ten years aforesaid, as against the defendant in such judgment, or the party obtaining such orders or making such appeal, or any other person who is not a purchaser, creditor or mortgagee in good faith. But whenever an appeal from any When and judgment shall be pending, and the undertaking requisite to time judg stay execution on such judgment shall have been given, and be a lien on the appeal perfected as provided in the Code, the court in real propwhich such judgment was recovered may, on special motion, after notice to the person owning the judgment, on such terms as they shall see fit, direct an entry to be made by the clerk on the docket of such judgment, that the same is "secured on appeal," and thereupon it shall cease during the pendency of said appeal to be a lien on the real property of the judgment debtor, as against purchasers and mortgagees in good faith. Ante, vol. 5, p. 79. $ 11. The first subdivision of section two hundred and ninety-two of said act, is hereby amended so as to read as follows: ings on execution 1. When an execution against property of the judgment Proceed debtor, or any one of several debtors in the same judgment return of issned to the sheriff of the county where he resides or has a unsatisfied. place of business, or if he do not reside in the state, to the sheriff of the county where a judgement roll, or a transcript of a justice's judgment for twenty-five dollars or upward, exclusive of costs, is filed, is returned unsatisfied, in whole or in part, the judgment creditor, at any time after such return made, is entitled to an order from a judge of the court, or a county judge of the county to which the execution was issued, or a judge of the court of common pleas for the city and county of New York, when the execution was issued to such city and county, requiring such judgment debtor to appear and answer concerning his property before such judge at a time and place specified in the order, within the county to which the execution was issued. But in case of an order made by a justice of the supreme court, all subsequent proceedings shall be had before some justice in the judicial district where the judgment debtor resides, to be specified in the order. Ante, vol. 5, p. 83. § 12. Subdivision one of section three hundred and seven is hereby amended so as to read as follows: costs to the .1. To the plaintiff for all proceedings before notice of trial Certain in actions where judgment for failure to answer can be taken plaintiff. without application to the court, fifteen dollars; where judgment can only be taken on such application, twenty-five dollars; for all proceedings after notice of and before trial, fifteen dollars, for each additional defendant served with process, Costs on appeal. Examina tion of In what cases not to ed, etc. not exceeding ten, two dollars, and for each necessary defendant in excess of that number, served with process, one dollar. Ante, vol. 5, p. 90. S 13. Subdivision five, of section three hundred and seven, of said act is hereby amended so as to read as follows: 5. To either party on appeal, except to the court of appeals and except appeals in the cases mentioned in subdivisions one, three, four and five of section three hundred and fortynine, and except in cases mentioned in the second paragraph of section three hundred and fourty-four, before argument, twenty dollars; for argument, forty dollars; and the same costs shall be allowed to either party before argument and for argument on application for judgment, upon special verdict, or upon verdict subject to the opinion of the court, or for a new trial on a case made, and in cases where exceptions are ordered to be heard in the first instance at a general term, under the provisions of section two hundred and sixty-five. Ante, vol. 5, p. 90. S 14. Section three hundred and ninety-nine of said act is hereby amended, so as to read as follows: § 399. A party to an action or special proceeding in any party on his and all courts and before any and all officers and persons own behalf. acting judicially, may be examined as a witness on his own behalf, or in behalf of any other party, conditionally on commission and upon the trial or hearing in the case, in the same manner and subject to the same rules of examination as any other witness; provided, however, that no party to the action be examin- or proceeding, nor any person who has a legal or equitable interest which may be affected by the event of the action or proceeding, nor any person who, previous to such examination, has had such an interest, however the same may have been transferred to or come to the party to the action or proceeding, nor any assignor of anything in controversy in the action, shall be examined in regard to any transaction or communication between such witness and a person, at the time of such examination, deceased, insane or lunatic, as a witness against a party then prosecuting or defending the action as executor, administrator, heir at law, next of kin, assignee, legatee, devisee or survivor of such deceased person, or as assignee or committee of such insane person or lunatic, when such examination or any judgment or determination in such action or proceeding, can in any manner affect the interest of such witness or the interest previously owned or represented by him. But when such executor, administrator, heir at law, next of kin, assignee, legatee, devisee, survivor or committee, shall be examined on his own behalf in regard to such transaction or communication, or the testimony of such deceased or insane person or lunatic in regard to such transaction or communication (however the same may have been perpetuated or made competent), shall be given in evi |