the information of the court, before decree, or for carrying an order or decree into effect; or CHAP. XI. referee to 3. Where a question of fact, other than upon the pleadings, shall arise, upon motion or otherwise, in any stage of the suit. $5. The report of the referee or referees upon the whole Report of cause, or upon the whole of any issue therein, shall stand as stand as the decision of the court, in the same manner as if the cause or issue had been determined by the court at a special term, and may be reviewed in like manner. decision. how ap be given. 56. The referee or referees shall be appointed in the manner Referees, provided in section two hundred and seventy-three, of the pointed. Code of Procedure, and shall have the powers specified in section four hundred and twenty-one, and the compensation specified in section three hundred and thirteen of that Code. § 7. No re-hearing shall take place at a general term of Re-hearing. the supreme court, of an order or decree made at a special term, unless the same involve the merits of the suit or proceedings or some part thereof. And further proceedings Security to upon the order or decree shall not be stayed, unless security be given in the same manner, and to the same extent, as would be required if an appeal were taken to the court of appeals from the same order or decree, made, or confirmed at a general term. Nor shall such re-hearing be had, unless Notice of notice of the same be given, within ten days after notice of the order or decree re-heard, with the security thus required. $8. No petition for a re-hearing need be made. Instead What nothereof, it shall only be necessary to serve a notice in writing sary. on the adverse party, and on the clerk with whom the order or decree to be re-heard is entered, stating the application for a rehearing of such order or decree, or some specified part thereof. $9. Any party aggrieved by an order made at a special Appeal term of the supreme court, in an action at law, or in a spe- order. cial proceeding, when it involves the merits of the action or special proceeding, or some part thereof, may appeal therefrom to the court at a general term; where, upon such appeal, the order may be reversed, affirmed or modified, according to law. re-hearing. tice neces from an how made. 10. The appeal in the last section mentioned, may be Appeal, made, by the service of a notice in writing, on the adverse party, and on the clerk with whom the order is entered, stating the appeal from the same, or some specified part thereof. But no such appeal shall be taken, unless a judge of the supreme court certify, that, in his opinion, it is proper, that the question arising on the appeal should be decided at the general term. TITLE II. PROVISIONS RELATING TO COURTS IN THE FIRST JUDICIAL DISTRICT. term of $11. The general term of the supreme court, appointed to General be held in the first judicial district, on the first Monday of supreme April, eighteen hundred and forty-eight, shall be continued court, hoa. continued. PART IIL Special terms and circuit continued. from the first Monday of each month to the third Saturday thereafter, until and including the third Saturday after the first Monday of July, eighteen hundred and forty-eight, or until all the cases on the calendar be sooner heard, or a sufficient opportunity be given for the hearing thereof. $ 12. The special terms and circuit courts appointed to be held in the first judicial district at any time hereafter, before courts, how the first day of July, eighteen hundred and forty-eight, shall be respectively continued from the first Monday of each month to the third Saturday thereafter, until and including the third Saturday after the first Monday of July, eighteen hundred and forty-eight, or until all the cases ready thereat for hearing or trial be sooner heard, or otherwise disposed of. General terms in first district. 13. In addition to the courts already required by law, and special there shall be held on the first Monday of September, eighteen hundred and forty-eight, a general and special term of the supreme court, and a circuit court in the first judicial district by such judges, as the governor shall, by appointment, in writing, designate; which terms and circuit court shall be exclusively devoted to the determination of suits and proceedings in the supreme court commenced before the first day of July, eighteen hundred and forty-eight. $14. The terms and circuit court, mentioned in the last continued. section, shall each be continued in each month, except October and January, from the first Monday to the third Saturday thereafter, inclusive, until the fourth Saturday in February, eighteen hundred and forty-nine, or until the suits and proceedings mentioned in the last section, ready for hearing at such courts, shall be sooner determined. Terme, how long .n case of disability, governor other S 15. If the judges assigned to hold such general or special terms or circuit courts, or any of them be unable, by reason may assign of sickness, or judicial engagements elsewhere, to sit until the close thereof, the governor shall assign other judges, not actually engaged in holding court, to take their places respectively. judges. When cause passed, endar. $ 16. When a cause, placed upon the calendar of a court how placed of record in the city of New York, shall be regularly called on the cal- and passed, without a postponement by the court for good cause shown, it shall thenceforth take its place on the same or any future calendar, as if the date of the issue were the time when it was thus passed. Party to state date of issue. Act takes effect im $ 17. In the case mentioned in the last section it shall be the duty of the party placing a cause upon the calendar, for a subsequent term, to state the date of the issue, as above prescribed; and if he omit to do so, by reason whereof the issue retains its priority on the calendar, the court on the application of the adverse party, or of its own motion, may strike the cause from the calendar. $18. This act shall take effect immediately, except that mediately. section two shall take effect at the same time with the Code of Procedure. CHAP. 270. AN ACT in relation to special proceedings. PASSED April 15, 1854. The People of the State of New York, represented in Senate and Assembly, do enact as follows: §1. An appeal may be taken to the general term of the supreme court, or the superior court, or court of common pleas of the city of New York, from any judgment, order, or tinal determination made at a special term of either of said courts, in any special proceeding therein; such an appeal, however, shall not stay the proceedings, unless the court, or a judge thereof, so order, which order may be upon such terms, as to security or otherwise, as may be just; such security not to exceed the amount required on an appeal to the court of appeals. $2. Sections three hundred and twenty-seven, three hundred and twenty-nine, three hundred and thirty, and three hundred and thirty-two of the Code of Procedure shall apply to appeals in special proceedings. $3. In special proceedings, and on appeals therefrom, costs may be allowed in the discretion of the court, and when allowed, shall be at the rate allowed for similar services in civil actions; and all appeals heretofore had or taken, and undetermined in special proceedings, shall be as valid and effectual as though had or taken under the provisions of this act. CHAP. 202. AN ACT to extend the provisions of the Code of Procedure to forfeited recognizances. PASSED April 9, 1855. The People of the State of New York, represented in Senate and Assembly, do enact as follows: $1. All the provisions of the Code of Procedure are hereby applied to all recognizances forfeited in any court of general session of the peace, or of oyer and terminer, in any of the counties of this state. $2. All laws or parts of laws, or provisions of statutes, in any wise conflicting with such application of the provisions of the Code of Procedure to the said forfeited recognizances, are hereby repealed. $3. In no case whatsoever, upon proceedings upon forfeited recognizances, shall any fees, or costs whatsoever be chargeable to the mayor, commonalty, alderman, or supervisors of CHAP. XI. PART III. § 53 amended. Plaintiff may claim immediate the city and county of New York, by the officer prosecuting the same. S4. This act shall take effect immediately. CHAP. 131. AN ACT to amend section fifty-three of the Code of Procedure, and to extend the jurisdiction of Justices' Courts, and to provide for proceedings therein.` PASSED March 30, 1860; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: S1. Section fifty-three of the Code of Procedure is hereby amended by adding thereto the following subdivision, to wit: 10. An action to recover the possession of personal property claimed the value of which as stated in the affidavit of the plaintiff, his agent or attorney, shall not exceed the sum of one hundred dollars. S2. The plaintiff in such action, at the time of issuing the summons, but not afterwards, may claim the immediate delidelivery of very of such property as hereinafter provided. property. Affidavit. What must be shown $3. Before any process shall be issued in an action to recover the possession of personal property, the plaintiff, his agent or attorney, shall make proof by affidavit showing: 1. That the plaintiff is the owner, or entitled to immediate by affidavit. possession of the property claimed, particularly describing the How pro be taken on receipt of such affida vit. same; 2. That such property is wrongfully withheld or detained by the defendant; 3. The cause of such detention or withholding thereof, according to the best knowledge, information and belief of the person making the affidavit; 4. That said personal property has not been taken for any tax, fine or assessment pursuant to statute, or seized by virtue of an execution or attachment against the property of said plaintiff, or if so seized, that it is exempt from such seizure by statute; 5. The actual value of said personal property. $ 4. On receipt of such affidavit, and an undertaking, in perty may writing, executed by one or more sufficient sureties, to be approved by the justice of the peace before whom such action is commenced, to the effect that they are bound in double the value of such property as stated in said affidavit for the prosecution of said action, and for the return of said property to the defendant, if return thereof be adjudged, and for the payment to him of such sum as may for any cause be recovered against said plaintiff, the justice shall indorse upon said affidavit a direction to any constable of the county in which said justice shall reside, requiring said constable to take the property described therein from the defendant, and keep the same to be disposed of according to law; and the said justice shall at the same time issue a summons directed to the defendant, and requiring him to appear before said justice at a time and place to be therein specified, and not more than twelve days from the date thereof, to answer the complaint of said plaintiff; and the said summons shall contain a notice to the defendant that in case he shall fail to appear at the time and place therein mentioned, the plaintiff will have judgment for the possession of the property described in said affidavit, with the costs and disbursements of said action. CHAP. XI. constables, $5. The constable to whom said affidavit, indorsement and Duty of summons shall be delivered, shall forthwith take the property &c. described in said affidavit, if he can find the same, and shall keep the same in his custody. He shall thereupon, without delay, serve upon said defendant a copy of such affidavit, notice and summons, by delivering the same to him personally, if he can be found in said county; if not found, to the agent of the defendant in whose possession said property shall be found; if neither can be found, by leaving such copies at the last or usual place of abode of the defendant, with some person of suitable age and discretion. And shall forthwith make a return of his proceedings thereon, and the manner of serving the same, to the justice who issued the said summons. may serve 36. The defendant may at any time after such service, and Defendant at least two days before the return day of said summons, serve notice, &c. upon plaintiff or upon the constable who made such service, a notice in writing that he excepts to the sureties in said bond or undertaking; and if he fail to do so, all objection thereto shall be waived. If such notice be served, the sureties shall justify, or the plaintiff give new sureties on the return day of said summons, who shall then appear and justify, or said justice shall order said property delivered to defendant, and shall also render judgment for defendant's costs and disburse ments. may require property tions. $7. At any time before the return day of said summons, Defendant the said defendant may, if he has not excepted to plaintiff's return of sureties, require the return of said property to him. upon upon cergiving to the plaintiff, and filing same with the justice, a writ-tain condi ten undertaking, with one or more sureties, who shall justify before said justice on the return day of said summons, to the effect that they are bound in double the value of said property as stated in plaintiff's affidavit for the delivery thereof to said plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may for any cause be recovered against said defendant; and if such return be not required before the return day of said summons, the property shall be delivered to said plaintiff. of $8. The qualification of sureties and their justification Qualifica under this act, shall be the same as provided in sections one sureties. |