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§ 951. The last three sections do not prevent the introduction Proof of evidence, to controvert any of the proof, in relation to the val- rebutted. idity of a judgment therein specified.

Laws of 1836, ch. 439 (4 Edm. St. 639), § 4.

§ 952. A copy of a record, or other judicial proceeding, of court of a foreign country, is evidence, when authenticated as follows:

a Copies of courts of

records of

foreign countries; how

of authenti

1. By the attestation of the clerk of the court, with the seal the court affixed, or of the officer in whose custody the record is legally kept, under the seal of his office.

2. By a certificate of the chief-judge or presiding magistrate of the court, to the effect, that the person, so attesting the record, is the clerk of the court; or that he is the officer, in whose custody the record is required by law to be kept; and that his signature to the attestation is genuine.

3. By the certificate, under the great or principal seal of the government, under whose authority the court is held, of the secretary of state, or other officer having the custody of that seal, to the effect, that the court is duly constituted, specifying generally the nature of its jurisdiction; and that the signature of the chief-judge or presiding magistrate, to the certificate specified in the last subdivision, is genuine.

2 R. S. 113, § 26, amended. See 2 Wait's Pr. 644.

The legal effect of the statutes in relation to wills made in other States (see Laws of 1864, ch. 311; 1872, ch. 680) is to make an exemplified copy of

such a will, and the proofs thereof,
when recorded, equivalent to proof of
the will in this State. Bromley v.
Miller, 2 N. Y. Sup. Ct. (T. & C.) 575.
See Laws of 1876, ch. 118.

cated.

proof.

§ 953. A copy of a record, or other judicial proceeding, of a Other court of a foreign country, attested by the seal of the court, in which it remains, must also be admitted in evidence, upon due proof of the following facts:

1. That the copy offered has been compared by the witness with the original, and is an exact transcript of the whole of the original. 2. That the original was, when the copy was made, in the custody of the clerk of the court, or other officer legally having charge of it. 3. That the attestation is genuine.

2 R. S. 413, § 27. See 2 Wait's Pr. 645.

cle does

§ 954. [Amended, 1877.] Nothing in this article is to be con- This artistrued, as declaring the effect of a record or other judicial proceeding not deof a foreign country, authenticated, so as to be evidence.

clare effect of record, etc.

Documents from

2 R. S. 413, § 28, last clause. See post, § 962.

The judgment of a foreign court is conclusive upon the merits, and can be impeached only by showing that the court had not jurisdiction of the subject-matter, or of the person of the defendant, or that the judgment was § 955 repealed, 1877.

fraudulently obtained. Lazier v. Westcott, 26 N. Y. (12 Smith) 146; Harrison v. Lowrie, 49 How. 124; Brinkley v. Brinkley, 50 N. Y. (5 Sick.) 184, 202; S. C., 10 Am. Rep. 460. See, also, Ferguson v. Mahen, 11 Ad. & El. 179; Ricardo v. Garcias, 12 Cl. & Fin. 398; Henderson v. Henderson, 6 Q. B. 288.

§ 956. [Amended, 1877.] A copy of a patent, record or other document remaining of record in a public office of a foreign country, countries; certified according to the form in use in that country, is evidence authenti- when authenticated, as follows:

foreign

how

cated.

1. By the certificate under the hand and official seal of a commissioner appointed by the governor to take the proof or acknowledgment of deeds in that country, to the effect that the patent, record or document is of record in the public office, and that the copy thereof is correct and certified in due form.

2. By a certificate under the hand and official seal of the secretary of State, annexed to that of the commissioner, to the same effect as prescribed by law for the authentication of the certificate of such a commissioner, upon a conveyance to be recorded within the State. The certificate of the commissioner, thus authenticated, is presumptive evidence that the copy of the patent, record or document is certified according to the form in use in the foreign country.

Laws of 1875, ch. 136, parts of §§ 1, 2, 8 and 9.

Form of

certificate

TITLE V.

Miscellaneous provisions.

SEC. 957. Form of certificate to copies, etc.

958. Certificate must be sealed.

959. Qualification of last section.

960. Public or corporate seal may be stamped.

961. Surrogates, clerks, etc., to search files, and to certify, etc.
962. Saving clause.

§ 957. Where a transcript, exemplification, or certified copy of to copies, a record or other paper, is declared by law to be evidence, and special

etc.

provision is not made for the form of the certificate, in the particular case, the person, authorized to certify, must state, in his certificate, that it has been compared by him with the original, and that it is a correct transcript therefrom, and of the whole of the original.

2 R. S. 420, first part of § 59, amended. See 2 Wait's Pr. 654.

cate must

§ 958. If the officer, or the court, body, or board, in whose cus Certiftody an original paper, specified in the last section, is required to be, be sealed. by the laws of the State, or of another state, or of the United States, or of a territory thereof, or of a foreign country, has, pursuant to those laws, an official seal, the certificate must be attested by that seal. If the certificate is made by the clerk of a county, within the State, it must be attested by the seal of the county.

2 R. S. 420, last part of § 59, amended. See 2 Wait's Pr. 654.

tion of

tion.

§ 959. [Amended, 1877.] The last section does not require the Qualificaseal of a court to be affixed to a certified copy of an order, or of a last sec paper filed therein, or entry made, where the copy is used in the same court, or before an officer thereof; or, in the supreme court, where it is used in a circuit court, or a court of oyer and terminer. 2 R. S. 420, § 60, adding the concluding words, "or a court of oyer and terminer."

corporate

§ 960. [Amended, 1877.] Where a seal of a public officer, or of Public or a corporation is authorized or required by law, it may be impressed seal directly on the paper.

2 R. S. 420, § 61. See Van Bokkelen v. Taylor, 62 N. Y. (17 Sick.) 105.

may be stamped.

gates,

etc., to

filles, and

etc.

§ 961. A surrogate, county clerk, register, clerk of a court, or surroother person, having the custody of the records or other papers in a clerks, public office, within the State, must, upon request, and upon pay- search ment of, or offer to pay, the fees allowed by law, or, if no fees are to certify, expressly allowed by law, fees at the rate allowed to a county clerk for a similar service, diligently search the files, papers, records, and dockets in his office; and either make one or more transcripts therefrom, and certify to the correctness thereof, and to the search, or certify that a document or paper, of which the custody legally belongs to him, cannot be found. If he refuses, or unreasonably neglects or delays, to make such a search, or to furnish such a transcript or certificate, or makes a false certificate, he is guilty of a misdemeanor.

Laws of 1847, ch. 470 (4 Edm. St. 588), § 40, amended.

clause.

§ 962. Nothing in title fourth of this chapter prevents the proof Saving of a fact, act, record, proceeding, document, or other paper or writing, according to the rules of the common law, or by any other competent proof.

2 R. S. 413, part of § 28; Laws of 1846, ch. 240 (4 Edm. St. 642), § 2.

CHAPTER X.

TRIALS; INCLUDING JURORS AND JURIES.

TITLE I.-TRIALS GENERALLY; INCLUDING EXCEPTIONS AND MOTION FOR A NEW TRIAL.

TITLE II. - TRIALS WITHOUT A JURY.

TITLE III. TRIAL JURORS, EXCEPT IN NEW-YORK AND KINGS COUNTIES; MODE OF SELECTING THEM, AND OF PROCURING THEIR ATTENDANCE.

TITLE IV.-TRIAL JURORS IN NEW-YORK AND KINGS COUNTIES; MODE OF SELECTING THEM, AND OF PROCURING THEIR ATTENDANCE.

TITLE V.-TRIAL BY JURY.

TITLE VI.-MISCELLANEOUS PROVISIONS; INCLUDING THOSE RELATING TO EMBRACERY, AND OTHER ACTS OF MISCONDUCT.

TITLE I.

Trials generally; including exceptions and motion for a new trial.

ARTICLE 1. Issues, and the mode of trial thereof.

2. The place of trial.

3. Exceptions, case, and motion for a new trial.

ARTICLE FIRST.

ISSUES, AND THE MODE OF TRIAL THEREOF.

SEC. 963. Issues defined; different kinds of issues.

964. When issues of law arise; when issues of fact arise.

965. Issues to be judicially examined by a trial.

966. Order of trial, where issues of law and of fact arise in the same action.

967. But court may direct the order, etc., of disposition of the issues.

968. What issues of fact are triable by a jury.

969. What issues are triable by the court.

970. Order for trial by jury, of specific questions of fact, when of right. 971. Id.; when discretionary.

972. Trial of the remainder of the issues.

974. Counterclaim to be deemed an action, within the foregoing sections.

SEC. 975. Immaterial issues need not be tried.

976. What issues to be tried before one judge; regulation of trial in the

supreme court.

977. Notice of trial and note of issue. Calendar to be prepared.

978. Issues how arranged. Order of disposition at a jury term.

979. Id.; when a jury does not attend.

980. Either party may bring issue to trial.

981. What papers to be furnished on trial, and by whom.

defined:

kinds of

§ 963. The issues, treated of in this chapter, are those only Issues which are presented by the pleadings. An issue arises where a fact, different or a conclusion of law, is maintained by one party, and controverted issues. by the other. Issues are of two kinds:

[blocks in formation]

Code Pro., § 248, amended. See Wait's Code, 442; 2 Wait's Pr. 462.

§ 964. An issue of law arises only upon a demurrer. An issue when of fact arises, in either of the following cases:

issues of law arise; when

fact arise.

1. Upon a denial, contained in the answer, of a material allega- issues of tion of the complaint; or upon an allegation, contained in the answer, that the defendant has not sufficient knowledge or information to form a belief, with respect to a material allegation of the complaint. 2. Upon a similar denial or allegation, contained in the reply, with respect to a material allegation of the answer.

3. Upon a material allegation of new matter, contained in the answer, not requiring a reply; unless an issue of law is joined thereupon.

4. Upon a material allegation of new matter, contained in the reply; unless an issue of law is joined thereupon.

This section is a substitute for §§ 249 and 250, Code Pro. See 2 Wait's Pr. 462-464; Ogdensburgh and Lake Champlain R. R. Co. v. Vermont and Can

ada R. R. Co., 6 N. Y. Sup. Ct. (T. &
C.) 489, note; People v. Northern R. R.
Co.,53 Barb. 98; S. C. affirmed, 42 N.
Y. (3 Hand) 217, 232.

be judiamined

§ 965. An issue, either of law or of fact, must be judicially Issues to examined by means of a trial, as prescribed in this chapter; unless cially exit is disposed of upon a motion, or upon exceptions, as prescribed in by a trial. chapter sixth of this act.

A substitute for § 252, Code Pro. See Wait's Code, 443, notes to $252. As to what is and what is not a trial, see 3 Wait's Pr. 1-3; see, also, National Bank of Syracuse v. McKinstry, 2 Hun, 443; S. C., 5 N. Y. Sup. Ct. (T. & C.) 52; Rensselaer and Saratoga R. R. Co.

v. Davis, 55 N. Y. (10 Sick.) 145, 148;
Vermilyea v. Palmer, 52 N. Y. (7 Sick.)
471; Merchants' Exchange Nat. Bank v.
Commercial Warehouse Co., 3 J. & Sp.
214, 216; Muller v. Higgins, 44 How.
225; S. C., 13 Abb. N. S. 297.

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