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form his share of the laoors and duties appertaining to the office; or is incapable of properly discharging the same; the governor may, in his discretion, make an order, suspending that justice from the exercise of the duties of his office, and directing that his compensation cease. Such an order must recite the grounds upon which it is made; and it remains in force, unless it is sooner revoked by the governor, until the final adjournment of the next session of the legislature; or, if the legislature is then in session, until the final adjournment of that session.

Laws of 1849, ch. 144, § 9, amended.

justice;

desig

his gen

eral

§ 322. The justices of the court, or a majority of them, must, Chieffrom time to time, as a vacancy occurs in the office of chief-justice, how designate one of their number to be chief-justice. A certificate of nated; the designation, under the hands of the justices making the same, erties, must be filed in the office of the clerk of the court. The person so etc. designated shall be chief-justice during his term of office. The chief-justice has the like authority, within the jurisdiction of the court, as a presiding justice of the supreme court; and when he is present and is not disqualified, he must preside at a general term. Laws of 1872, ch. 629, § 4, amended.

may make

§ 323. The justices of the court, or a majority of them, may, from Justices time to time, establish rules of practice for the court, not inconsistent rules. with this act, or with the general rules of practice, established as prescribed in section 17 of this act. The latter govern the practice in the court, as far as they are applicable thereto.

Laws of 1875, ch. 479, § 56, amended.

when

justices

nate

routine of

at the

etc.

§ 324. The court is always open for the transaction of any busi- Court ness, for which notice is not required to be given to an adverse party. open; The justices of the court, or a majority of them, from time to time to desigmust appoint, and may alter, the times of holding general, special, terms; and trial terms of the court. They must prescribe the duration of business the terms; designate the trial terms at which jurors are required to terms, attend; and assign the justice or justices to preside and attend, at each of the terms so appointed. In case of the inability of a justice to preside or attend, another justice may preside or attend in his place. Each trial and special term must be held by one justice; and each general term by at least two justices. Two or more general, special, or trial terms may be appointed to be held at the same time. The concurrence of two justices is necessary to pronounce a decision at a general term. If two do not concur, a re-argument must be

Terms, where held; publication of appointments.

Justices may take oaths, acknowl

ordered. The justices holding a general term may order a re-argument, before themselves, or at a subsequent general term, of a cause heard by them, or at a previous general term.

Laws of 1872, ch. 629, § 4, amended.

§ 325. Each term so appointed must be held at the city-hall in the city of New-York, except that auxiliary or additional parts, for the transaction of any business specified in the appointment, may be held elsewhere within the city of New-York, as designated in the appointment. An appointment must be published in two newspapers, published in the city of New-York, at least once in each week, for three successive weeks, before a term is held in pursuance thereof. First sentence from Laws of 1875, ch. 479, § 38. The second sentence is

new.

§ 326. Each of the justices may, within the city of New-York, administer an oath, or take a deposition, or the acknowledgment or edgments, proof of the execution of a written instrument, and certify the same, in like manner and with like authority and effect, as a justice of the supreme court.

etc.

Orders,

etc., how made.

Clerk, deputy

Laws of 1874, ch. 545, § 8, amended.

§ 327. In an action brought in the court, an order cannot be made, or a warrant of attachment granted, by an officer, other than a justice of the court; and each provision of this act, which empowers an officer, other than a judge of the court in which an action is brought, to make an order therein, must be construed as being exclusive of an action brought in the marine court.

New in form.

§ 328. [Amended, 1877.] The court has a clerk, who is appointed, clerk and and may be removed, at pleasure, by the justices thereof, or a assistants. majority of them. He must, by a written instrument under his

General

duties of deputyclerk.

hand, filed in his office, appoint, and may at pleasure remove, three deputy-clerks and not more than ten assistants. The clerk is responsible for the faithful discharge of his duty, by each deputy-clerk and each assistant. The clerk, each deputy-clerk, and each assistant, is entitled to a salary, fixed and to be paid as prescribed by law.

Part of Laws of 1872, ch. 438, § 1, and of Laws of 1857, ch. 295, § 6; amended in accordance with Laws of

1873, ch. 453, § 2, and Laws of 1875, ch. 479, § 39.

§ 329. [Amended, 1877.] The clerk, and also each deputy-clerk, before he enters upon the duties of his office, must subscribe, and

file in the office of the clerk of the city and county of New-York, the constitutional oath of office. The deputy-clerk has all the powers, and may perform all the duties of the clerk, when the office of clerk is vacant, or at the clerk's office, when the clerk is absent therefrom, or at a term or sitting of the court which the deputy-clerk attends.

Substituted for part of § 6, Laws of 1857, ch. 295.

deputy

§ 330. [Amended, 1877.] The clerk may designate as many of Special his assistants, as the justices of the court, or a majority of them, clerks. deem necessary, as special deputy-clerks. Each special deputy-clerk possesses, in the absence of the clerk and a deputy-clerk, the same powers as the clerk, at any sitting or term of the court which he attends, with respect to the business transacted thereat.

New provision. See ante, §§ 89 and 285, and notes.

account

for fees, over the

§ 331. [Amended, 1877.] The clerk must receive, for the use of Clerk to the city of New-York, the fees allowed by law. He shall not per- monthly form any service, for which a fee is allowed by law, until the fee and pay therefor is paid to him. He must, on the first day of each month, same. or within three days thereafter, render to the comptroller of the city, an account, under oath, of all fees received, directly or indirectly, during the preceding month, by him, or by a deputy-clerk, or either of his assistants, for any official service; and he must, at the same time, pay the same into the treasury of the city of New-York. When the return and payment are so made, the clerk is entitled to receive his compensation, for the period included in the return. He is not entitled to compensation for a period, for which he has not made his return and payment.

Laws of 1849, ch. 144, § 5, amended.

raphers.

§ 332. [Amended, 1877.] The clerk of the court must appoint stenogthree stenographers of the court, and may at pleasure remove either of them. The justices of the court, or a majority of them, must, from time to time, assign each of the stenographers to duty at the trial terms. Each stenographer is entitled to a salary, fixed and to be paid as prescribed by law. He must attend each term to which he is assigned.

From Laws of 1867, ch. 784, portions of §§ 1, 2 and 4; 1869, ch. 674, § 1; 1872, ch. 438, § 4; 1874, ch. 545, § 13.

§ 333. [Amended, 1877.] The clerk of the court, from time to Intertime, must appoint, and may at pleasure remove, an official inter- preter. preter of the court, who is entitled to a salary, fixed and to be paid

Id.; penalty for misconduct.

Clerk must

appoint attend

as prescribed by law. Before entering upon his official duties, he must subscribe, and file in the office of the clerk of the city and county of New-York, the constitutional oath of office. He must attend any trial or special term of the court, where his services are required; and the justices of the court, or a majority of them, may, by order, regulate his attendance.

Laws of 1867, ch. 784, parts of §§ 1 and 4, amended.

§ 334. If the official interpreter, knowingly and wilfully, falsely interprets any evidence, matter or thing, between a witness and the court, or a justice thereof, in the course of an action or special proceeding, he is guilty of perjury.

Laws of 1867, ch. 784, § 3.

§ 335. [Amended, 1877.] The clerk of the court must appoint, and may at pleasure remove, as many attendants upon the court as he ants, etc. deems necessary, not exceeding thirteen. The justices of the court, or a majority of them, may regulate their attendance. Each attendant is entitled to a salary, fixed and to be paid as prescribed by law.

Clerks,

interpreter and attend

ants not to receive fees.

Suspen

sion of an officer of the court.

Laws of 1872, ch. 438, part of § 2, as modified by Laws of 1873, ch. 453, and Laws of 1875, ch. 479, 39, amended. It has been held that an attendant of the marine court was merely the servant of the court, with no duties except to attend its sittings and do the biddings of the judges. There is no analogy between the posi

tion occupied by him and that of executive, administrative or judicial officers charged with official duties and responsibilities affecting the public. Halley v. Mayor, etc., of New-York, 59 N. Y. (15 Sick.) 166, 170. See Wines v. Mayor, 9 Hun, 659; Brennan v. Mayor, etc., of New-York, 62 N. Y. (17 Sick.) 365.

§ 336. The clerk, the deputy-clerk, an assistant to the clerk, the official interpreter, or an attendant, shall not receive any fee or compensation, except his salary, for any official service performed by him.

Laws of 1872, ch. 438, § 3, amended.

§ 337. [Amended, 1877.] A justice of the court may, by an instrument under his hand, suspend a stenographer, or an officer specified in the last section, for a period not exceeding ten days from the filing thereof. Such an instrument must express the cause of the suspension; it must be filed in the office of the clerk of the city and county of New-York; and it may be revoked, at any time before the expiration of the period of suspension, by an instrument filed in like manner, under the hand of the justice who executed the first instrument, or the hands of a majority of the justices of the court. Where such an instrument has been revoked, the officer shall not be again suspended for the same cause.

A substitute for the provisions contained in Laws of 1849, ch. 144, § 10.

§ 338. A mandate of the court can be executed only within the what city of New-York, except as follows:

mandates may be

executed the city.

1. An execution upon a judgment rendered therein, for a sum without exceeding twenty-five dollars, may be issued out of the court, tested in the name of the chief-justice thereof, to the sheriff of any county, wherein the judgment has been duly docketed.

2. A subpoena may be served within either of the counties of Richmond, Kings, Queens, or Westchester.

3. A warrant to apprehend a witness for a failure to obey a subpœna, may be executed by the sheriff of the city and county of NewYork, or a marshal of that city, within either of those counties.

4. An order duly made, in an action pending in the court, requiring the performance of an act by a party thereto, or by an officer, may be served upon a person bound to obey the order, and his obedience thereto may be required, in any part of the State.

5. An order to show cause, why a person should not be punished for a contempt of the court, may be served by any person in any part of the State.

6. A warrant to apprehend, and bring before the court, a person charged with such a contempt, may be executed by the sheriff of the city and county of New-York, or a marshal of that city, in any part of the State.

Laws of 1875, ch. 479, § 40.

and execu

a tion of

mandates.

§ 339. In an action brought in the court, an order of arrest, a Direction warrant of attachment, an execution, or a requisition to replevy chattel, must be directed to and executed by the sheriff. Any other mandate, which must have been directed to and executed by the sheriff of the city and county of New-York, if it issued out of the supreme court, may, where it issues out of the marine court, be directed to and executed either by that sheriff, or a marshal of that city, named therein. A marshal is entitled to the same fees as the sheriff, upon a mandate directed to him, or upon the service of a summons; and each provision of law, relating to the execution of a mandate by the sheriff, and the power and control of the court over the sheriff executing the same, applies to the marshal. The return of a marshal to such a mandate, or his certificate of the execution thereof, or of the service of any paper served by him, has the same force and effect, as the like return and certificate of a sheriff.

See Laws of 1865, ch. 400, §§ 2 and 3; 1872, ch. 629, § 8; 1875, ch. 625; 2 R. L. 384, § 114.

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