TITLE 8. TITLE VIII. Of the trial and judgment in civil actions. CHAPTER II. trial; note ISSUES AND THE MODE OF TRIAL. Notice of § 256. At any time after issue, and at least fourteen days before the court, of issue; either party may give notice of trial. The party giving the notice shall furstenogra- nish the clerk, at least twelve days before the court, with a note of the issue, pher. containing the title of the action, the names of the attorneys, and the time when the last pleading was served, and the clerk shall thereupon enter the cause upon the calendar according to the date of the issue, and shall prepare and have ready for distribution copies of said calendar five days before the court. In the first judicial district there need be but one notice of trial, and one note of issue from either party, and the action shall then remain on the calendar until disposed of, and when called may be brought to trial by the party giving the notice. In every action in which issue of fact is now joined, and the action is now placed upon the calendar of the supreme court of the first judicial district, or of the superior court of the city of New York, or of the court of common pleas for the city and county of New York, the party who shall have filed such 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 under oath, and paid over monthly by the clerk of each of said courts, to the comptroller of the city of New York, and by him deposited in the county treasury, to be used for a fund for the payment of the salaries of stenographers employed in said courts, as provided for in this section; but this shall not apply to cases where the fee of three dollars has once been paid. 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 funds of county contingencies, to which fund any surplus of the sums so paid over to the comptroller, as herein before provided, shall be credited. Each of the courts herein before named shall appoint a stenographer for the circuit, trial term or special term at which issues of fact are tried, 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 twenty-five 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 portions of this section printed in italics deemed abrogated by L. 1877, ch. 417. See id., 1, subd. 4, paragraph 15. 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 herein before provided, shall be deemed a necessary disbursement within the meaning of section 311 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 of 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 herein before specified. The surrogate of the county of New York is hereby authorized and directed to appoint a stenographer to the surrogate's court of said county, who shall be a sworn officer of the court, and shall be paid a salary of three thousand dollars a year, in like manner as the salaries of clerks in said court are now paid by law from the fees of said court, paid into the treasury of the county of New York. The stenographer so appointed shall be skilled in the practice of his art, and shall hold his position during good behavior, and so long as he efficiently discharges the duties of his office. He shall, under the direction of the said surrogate, take full stenographic notes of all proceedings in said court, in which oral proofs shall be given, which notes shall be fairly transcribed, and after being signed by the witnesses, deponent or affiant, shall be filed in the office of said surrogate. By consent of the parties to the proceeding in which such proofs shall be taken, and said surrogate, the signing of such record of proof by the witness, deponent or affiant may be waived, in which case such record, after being authenticated by the certificate of said stenographer, or said surrogate, shall be deemed to be the record of any proofs or proceedings so taken. 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 emyloy a 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, and ten cents a mile for travel from his place of residence to the place where the court is held, together with such sum for stationery as the presiding justice shall certify, which compensation shall be a charge upon the counties in which such courts shall be held respectively, and shall be allowed and paid from the court fund, in like manner as other charges are allowed and paid from it. 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 ten cents for every one hundred words of the copy so furnished. In the surrogates' courts of the counties of New York and Kings, and of other counties in which a stenographer is or 359 [2] TITLE 8. TITLE 9. What verdict jury may render. shall be duly authorized to take stenographic notes of proceedings in said courts, in which oral proofs shall be given in case of the death of any witness, deponent, or affiant, after examination, and before the stenographer's notes of such examination shall have been transcribed, such notes after being fairly transcribed and authenticated by the certificate of the surrogate, shall be filed in his office and be deemed to be the record of the proofs so taken, without any signing thereof by such witnesses. CHAPTER V. TRIAL BY JURY. § 261. In an action for the recovery of specific personal property, if the property have not been delivered to the plaintiff, or the defendant by his answer claim a return thereof, the jury shall assess the value of the property, if their verdict be in favor of the plaintiff; or if they find in favor of the defendant, and that he is entitled to a return thereof; and may at the same time assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the detention or taking and withholding such property. CHAPTER VI. Judgment in action sonal pro perty. MANNER OF ENTERING JUDGMENT. § 277. In an action to recover the possession of personal property, for recov- judgment for the plaintiff may be for the possession, or for the recovery ery of per of possession, or the value thereof, in case a delivery cannot be had, and of damages for the detention. If the property have been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property, or the value thereof, in case a return cannot be had, and damages for taking and withholding the same. TITLE IX. Of the execution of the judgment in civil actions. CHAPTER I. Execu tions on justice's judg. ments. THE EXECUTION. § 284. When judgment shall have been rendered in a court of justice of the peace, or in a justice's or other inferior court in a city, and docketed in the office of the clerk of the county, the application for leave to issue execution must be to the county court of the county where the judgment was rendered, or, in the city and county of New York, to the court of common pleas of that city and county. TITLE 9. CHAPTER II. PROCEEDINGS SUPPLEMENTARY TO THE EXECUTION. discovery ination of § 292. When an execution against property of the judgment debtor, Order for or any one of several debtors in the same judgment issued to the sheriff of properof the county where he resides or has a place of business, or if he do ty; examnot reside in the State, to the sheriff of the county where a judgment- judgment roll, or a transcript of a justice's judgment for twenty-five dollars or debtor. upward, exclusive of costs, is filed, is returned unsatisfied, in whole or in part, the judgment creditor, at any time after such return made, ist 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. After the issuing of an execution against property, and upon proof by affidavit of a party, or otherwise, to the satisfaction of the court, or a judge thereof, or county judge, or any judge of the court of common pleas for the city and county of New York, that any judgment debtor, residing in the county where such judge or officer resides, has property which he unjustly refuses to apply towards the satisfaction of the judgment, such court or judge may, by an order, require the judgment debtor to appear at a specified time and place to answer concerning the same; and such proceedings may thereupon be had for the application of the property for the judgment debtor towards the satisfaction of the judgment as are provided upon the return of an execution. Whenever it shall satisfactorily appear, by affidavit, to a justice of the supreme court that such county judge, or judge of said court of common pleas, is incapacitated from acting in any of the proceedings whatever, herein authorized, from any cause or causes whatsoever, such justice of the supreme court shall have the same powers and authority, in all cases whatever, as are herein conferred upon him, as to cases of judgments in the supreme court. On an examination under this section, either party may examine witnesses in his behalf, and the judgment debtor may be examined in the same manner as a witness. Instead of the order requiring the attendance of the judgment debtor, the judge may, upon proof, by affidavit or otherwise, to his satisfaction, that there is danger of the debtor's leaving the State, or concealing himself, and that there is reason to believe he has property which he unjustly refuses to apply to such judgment, issue a warrant requiring the sheriff of any county where such debtor may be to arrest him and bring him before such judge. Upon being brought before the judge, he may be examined on oath, and, if it then appears that there is danger of the debtor's leaving the State, and that he has property which he has unjustly refused to apply to such judgment, ordered to enter into an undertaking, with one or more sureties, that he will, from time to time, attend before the judge as he shall direct, and that he will not, during the pendency of the proceedings, dispose of any portion of his property not exempt from execution. default of entering into such undertaking, he may be committed to In TITLE 9. prison, by warrant of the judge, as for a contempt. No person shall, on examination pursuant to this chapter, be excused from answering any question on the ground that his examination will tend to convict him of the commission of a fraud; but his answer shall not be used as evidence against him in any criminal proceeding or prosecution. Nor shall he be excused from answering any question on the ground that he has, before the examination, executed any conveyance, assignment or transfer of his property for any purpose, but his answer shall not be used as evidence against him in any criminal proceeding or prosecution. § 293. After the issuing of execution against property, any person indebted to the judgment debtor may pay to the sheriff the amount of cution his debt, or so much thereof as shall be necessary to satisfy the execuagainsthis creditor. tion, and the sheriff's receipt shall be a sufficient discharge for the amount so paid. Any debt or may pay exe tion of debtor or Examina- § 294. After the issuing or return of an execution against property debtors of of the judgment debtor, or of any one of several debtors in the same judgment judgment, and upon an affidavit that any person or corporation has of those property of such judgment debtor, or is indebted to him in an amount having exceeding ten dollars, the judge may, by an order, require such person belonging or corporation, or any officer or member thereof, to appear at a specified joint debt- time and place, and answer concerning the same. The judge may also, in his discretion, require notice of such proceeding to be given to any party to the action, in such manner as may seem to him proper. property to him; ors. required The proceedings mentioned in this section, and in section 292, may be taken upon the return of an execution 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 pending, and not actually terminated by any final judgment or decree. Witnesses § 295. Witnesses may be required to appear and testify on any proto testify, ceedings under this chapter, in the same manner as upon the trial of an issue. Compelling at § 296. The party or witness may be required to attend before the tendance. judge, or before a referee appointed by the court or judge; if before a referee, the examination shall be taken by the referee, and certified to the judge. All examinations and answers before a judge or referee under this chapter shall be on oath, except that when a corporation answers the answer shall be on the oath of an officer thereof. Property ordered to to execution. § 297. The judge may order any property of the judgment debtor, be applied not exempt from execution, in the hands either of himself or any other person, or due to the judgment debtor, to be applied toward the satisfaction of the judgment, except that the earnings of the debtor for his personal services, at any time within sixty days next preceding the order, cannot be so applied when it is made to appear by the debtor's affidavit, or otherwise, that such earnings are necessary for the use of a family supported wholly or partly by his labor. Judge may ap point receiver, § 298. The judge may also, by order, appoint a receiver of the property of the judgment debtor, in the same manner, and with the like authority, as if the appointment was made by the court according to and pro- section 244. But before the appointment of such receiver, the judge transfer, shall ascertain, if practicable, by the oath of the party, or otherwise, hibit |