Arbitration of them; where the arbitrators were guilty of misconduct, in refusing §§ 34-36 to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence, pertinent and material to the controversy; or of any other misbehavior, by which the rights of any party have been prejudiced; where the arbitrators exceeded their powers, or so imperfectly executed them, that a mutual, final and definite award, upon the subject-matter submitted, was not made. [Note 1345.] § 34. The arbitrators shall have the power to summon witnesses and Form of submission require them to attend and to regulate their proceedings the same as a board or member of a board authorized by law to hear testimony. The award when docketed shall have the force of a judgment, but the court or judge may correct the award, and stay the enforcement pending such application, where there was an evident miscalculation of figures, or an evident mistake in the description of any person, thing, or property, referred to in the award; where the arbitrators have awarded upon a matter not submitted to them, not affecting the merits of the decision upon the matters submitted; where the award is imperfect in a matter of form, not affecting the merits of the controversy, and, if it had been a referee's report, the defect could have been amended or disregarded by the court. [Note 1346.] in case of § 35. Where the persons, who might be adverse parties in an action, Limitation have entered into a written agreement to submit to arbitration, or to of action refer the cause of action, or a controversy in which it might be available, or have entered into a written submission thereof to arbitrators; and before an award, or other determination thereupon, the agreement, or submission is revoked, so as to render it ineffectual, by the death of either party thereto, or by the act of the person against whom the action might have been brought; or the execution thereof, or the remedy upon an award or other determination thereunder, is stayed by injunction, or other order procured by him from a competent court or judge; the time which has elapsed, between the entering into the written submission or agreement, and the revocation thereof, or the expiration of the stay, is not a part of the time, limited for the commencement of the action. [Note 1347.] ARTICLE 5 See also Debtor and Creditor Law. § 36. A defendant may be arrested in an action [as] in the manner prescribed in [this title,] the Civil Practice Rules where the action is brought for [either] any of the following causes: 1. To recover a fine or penalty; 2. To recover damages for a personal injury; 3. An injury to property, including the wrongful taking, detention or conversion of personal property; 4. Breach of a promise to marry; Grounds for arrest in civil action $36 Grounds for arrest in civil action 5. Misconduct or neglect in office, or in a professional employment; 6. Fraud, or deceit; 7. To recover a chattel where it is alleged in the complaint that the chattel or a part thereof has been concealed, removed or disposed of so that it cannot be found or taken by the sheriff and with the intent that it should not be so found or taken, or to deprive the plaintiff of the benefit thereof; 8. To recover for money received, or to recover property or damages for the conversion or misapplication of property where it is alleged in the complaint that the money was received or the property was embezzled or fraudulently misapplied by a public officer or by an attorney, solicitor or counsellor, or by an officer or agent of a corporation or banking association in the course of his employment, or by a factor, agent, broker, or other person in a fiduciary capacity; 9. [3] To recover moneys, funds, or property held or owned by the state, or held or owned officially or otherwise for or in behalf of a public or governmental interest by a municipal or other public corporation, board, officer, custodian, agency, or agent, of the state or of a city, county, town, village, or other division, subdivision, department, or portion of the state, which the defendant has, without right, obtained, received, converted, or disposed of; or to recover damages for so obtaining, receiving, paying, converting, or disposing of the same; 10. [4] In an action upon contract, express or implied, other than a promise to marry, where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability, or that he has, since the making of the contract, or in contemplation of making of the same, removed or disposed of his property with intent to defraud his creditors, or is about to remove or dispose of the same with like intent; 11. In an action, brought [as prescribed in the last section] for usurping, intruding into, unlawfully holding, or exercising an office, [the attorney-general, besides stating the cause of action in the complaint, may, in his discretion, set forth therein the name of the person rightfully entitled to the office, and the facts showing his right thereto; and thereupon, and] upon proof, by affidavit, that the defendant, by means of his usurpation or intrusion, has received any fees or emoluments belonging to the office, an order to arrest the defendant may be granted by the court, or a judge; 12. Where [A defendant may also be arrested in an action wherein] the judgment demanded requires the performance of an act, the neglect or refusal to perform which would be punishable by the court as contempt [where] and the defendant is not a resident of the state, or, being a resident, is about to depart therefrom, by reason of which non-residence or departure there is danger that a judgment or an order requiring the performance of the act will be rendered ineffectual; 13. Where a sick civil prisoner who is ordered removed from a jail to a hospital, pursuant to section 355 of the Prison Law, and who ARREST § 37-41 23 Grounds for actually escapes while going to, remaining at, or returning from the hospital, was in custody by virtue of an order of arrest, a new order of arrest may be granted, upon proof by affidavit of the facts specified arrest in in this [section,] subdivision without other proof and without an civil action undertaking. [Note 1348.] § 37. The foregoing section is subject to the following limitations: 1. It [This title] does not abridge or affect a privilege from arrest given by law, or a right of action for a breach thereof; 2. A person prosecuted in a representative capacity, as heir, executor, administrator, legatee, devisee, next of kin, assignee, or trustee, cannot be arrested, [as prescribed in this title] in a civil action except for his personal act; 3. A woman cannot be arrested, [as prescribed in this title] in a civil action except in a case where the order can be granted only by the court; or where it appears, that the action is to recover damages for a wilful injury to a person, character, or property; 4. In [such an action brought against the president or treasurer of an unincorporated association, including a partnership, or other company of persons which has a president or treasurer, consisting of seven or more members, the officer against whom it is brought cannot be arrested; 5. The recovery of a judgment in a court, not of the state, for the same cause of action; or, where the action is founded upon fraud or deceit, for the price or value of the property obtained thereby; does not affect the right of the plaintiff to arrest the defendant; [as prescribed in this title.] 6. An order of arrest cannot be granted in an action begun by the submission of a controversy upon an agreed statement of facts. [Note 1349.] Limitation upon pre ceding section relating to grounds for arrest Imprisonment for nonpayment of costs § 38. A person shall not be arrested or imprisoned, for the non· payment of costs, awarded otherwise than by a final judgment, or a final order, made in a special proceeding instituted by state writ, except where an attorney, counsellor, or other officer of the court, is ordered to pay costs for misconduct as such, or a witness is ordered to pay costs on an attachment for non-attendance. [Note 1350.] § 39. Except in a case where it is otherwise specially prescribed No imby law, a person shall not be arrested or imprisoned for disobedience prisonment to a judgment or order, requiring the payment of money due upon obedience to a contract, express or implied, or as damages for non-performance judgment for of a contract. [Note 1351.] for dis money of officer and § 40. A prisoner conveyed to jail through another county pursuant Privilege to section [one hundred and eighteen of the Code of Civil Pro- from arrest cedure,] 24 of the Prison Law or the officer having him in custody, ' prisoner is not liable to arrest in any civil action or special proceeding, while passing through another county. [Note 1352.] § 41. A person shall not be arrested in a civil action or special Ne exeat proceeding, except as prescribed by statute. The writ of ne exeat is abolished abolished. [Note 1353.] §§ 42-47 Arrest of officer of court of record Arrest of witness Immunity from arrest of incompetent Action for arrest of witness Discharge of witness from arrest By whom discharge granted § 42. An officer of a court of record, appointed or elected pursuant to law, is privileged from arrest, during the actual sitting, which he is required to attend, of a term of the court of which he is an officer, and no longer; but an attorney or counselor is not thus privileged, unless he is employed in a cause, to be heard at that term. [Note 1354.] § 43. A person duly and in good faith subpoenaed or ordered to attend, for the purpose of being examined, in a case where his attendance may lawfully be enforced by attachment or by commitment, is privileged from arrest in a civil action or special proceeding, while going to, remaining at, and returning from, the place where he is required to attend. An arrest, made contrary to the provisions of this section, is absolutely void and is a contempt of the court, if any, from which the subpoena was issued, or by which the witness was directed to attend. [Note 1355.] § 44. A lunatic, an idiot, or an infant under the age of fourteen years, if arrested, may be discharged from arrest, as a privileged person, in the discretion of the court. The application for his discharge may be made, in his behalf, by a relative, or by any other person whom the court or judge permits to represent him, for the purpose. [Note 1356.] · § 45. An action may be maintained, by the person arrested, against the officer or other person making an arrest contrary to the provisions of [the last] section 43, in which the plaintiff is entitled to recover treble damages. A similar action may also be maintained, in a like case, by the party in whose behalf the witness was subpoenaed, or the order procured, to recover the damages sustained by him, in consequence of the arrest. But a sheriff, or other officer, or person, is not so liable, unless the person claiming an exemption from arrest, makes, if required, by the sheriff or the officer, an affidavit, to the effect that he was legally subpoenaed or ordered to attend, and that he was not so subpoenaed or ordered by his own procurement, with the intent of avoiding arrest. In his affidavit, he must specify the court or officer, the place of attendance, and the cause in which he was so subpoenaed or ordered. The affidavit may be taken before the officer arresting him, and exonerates the officer from liability for not making the arrest. [Note 1357.] § 46. The court, from which a subpoena, served in good faith, was issued, or by which an order was made, requiring a person to attend, for the purpose of being examined; or a judge thereof, upon proof, by affidavit, of the facts, must make an order, directing the discharge of a witness or other person, from an arrest made in violation of the preceding section. [26 of the Civil Rights Law.] [Note 1358.] § 47. A justice of the supreme court, in any part of the state, or a county judge, has the like authority as a judge of the court, to make an order for a discharge, in a case specified in the last section. Upon satisfactory proof, by affidavit, of the facts, he must also ARREST make an order, directing the discharge of a person arrested, in violation of section 45 [26 of the Civil Rights Law], where a subpoena, served in good faith upon the person arrested, was issued as prescribed [in section 854 of this act] by law. [Note 1359.] § 48. The defendant, at any time before he is in contempt, where the order can be granted only by the court, or, in any other case, at any time before execution against his person, must be discharged from arrest, either upon giving bail, or upon depositing the sum specified in the order of arrest. [Note 1360.] from arrest for delay in proceedings § 49. [Except in a case where an order of arrest can be granted Discharge only by the court.] If the plaintiff unreasonably delays the trial of the action or neglects to enter judgment therein within ten days after it is in his power to do so, or neglects to issue execution against the person of the defendant within ten days after the return of the execution against the property, and in any event neglects to issue the same within three months after the entry of the judgment, or whenever it shall appear to the satisfaction of the court that the plaintiff in an action, or a judgment creditor in a judgment, delays the enforcement of his remedies therein by collusion, or for the purpose of allowing the debtor to remain in prison under the mandate in any other action, before the issuing of the mandate in favor of such creditor, so as to produce a continued and extended imprisonment by virtue of the separate mandates in the different actions, the defendant must upon his application, made upon notice to the plaintiff, be discharged from custody if he has already been taken under the mandate against him in such action; or if he has not yet been imprisoned therein, be relieved from imprisonment by virtue of such mandate, by the court in which the action was commenced, unless reasonable cause is shown why the application should not be granted. [A defendant discharged as prescribed in this section shall not be arrested upon an execution issued upon the judgment in the action.] [Note 1361.] § 50. If money deposited is not refunded, [as prescribed in the last section, it is, in a case where the order of arrest could be granted only by the court, subject to the direction of the court, as justice requires, before and after the judgment. In any other case, if it remains on deposit, when final judgment is rendered for the plaintiff, it must be applied, under the direction of the court, in satisfaction of the judgment, and the surplus, if any, must be refunded to the defendant, or his representative. If the final judgment is for the defendant, or the action abates or is discontinued, the sum deposited, and remaining unapplied, must be refunded to the defendant or his representative. [Note 1362.] § 51. At any time before the deposit is paid into court, the defendant may deliver to the sheriff a written direction, to pay it to a third person, therein specified, in the event that the defendant becomes entitled to a return thereof; but without expressing any other contingency. The direction must be acknowledged or proved and Disposition for release from arrest of deposit Payment of deposit for arrest release from |