Judiciary Law

An Act to amend chapter thirty-five of the laws of nineteen hundred and nine, entitled "An act in relation to the administration of justice, constituting chapter thirty of the Consolidated Laws."

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Section 1. The Judiciary Law is hereby amended by adding thereto the following articles and sections:

ARTICLE 2

GENERAL PROVISIONS

$$ 3a-12b

and powers

of courts and

§ 3a. Each of [those] the courts enumerated in sections 2 and 3 of Jurisdiction this act shall continue to exercise the jurisdiction and powers now vested in it by law, according to the course and practice of the court, except as otherwise prescribed. [in this act.] [Note 2209.]

§ 3b. A court of record has power:

Power of

courts of

1. To issue a subpoena, requiring the attendance of a person found in the state, to testify in a cause pending in that court; subject, how- record. ever, to the limitations prescribed by law, with respect to the portion of the state in which the process of a local court of record may be served;

2. To administer an oath to a witness, in the exercise of the powers and duties of the court;

3. To devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it. [Note 2210.]

§ 12a. An action or special proceeding, civil or criminal, in a Vacancies court of record, is not discontinued by a vacancy or change in the and changes judges of the court, or by the re-election or re-appointment of a in court judge; but it must be continued, heard and determined, by the court,

as constituted at the time of the hearing or determination. [Note 2211.]

another

§ 12b. A court of record may, in its discretion, where the parties Adjournment to an action file a stipulation that the same be tried at a place within of term to the county where said action is triable, other than the court-house,. place adjourn the term to such place for the trial of said aetion. [Note

2212.]

$$ 12c-31

Failure or change of term of

court

Continuance of trial beyond term of court

Continuance of special proceeding before another officer or court

Proceedings before substituted officer

Proceedings

upon re

moval of action or proceeding

to supreme court

§ 12c. When a term of a court fails or is adjourned, or the time or place of holding the same is changed [as prescribed in this chapter,] an action, special proceeding, writ, process, recognizance, or other proceeding, civil or criminal, returnable, or to be heard or tried, at that term, is not abated, discontinued, or rendered void thereby; but all persons are bound to appear, and all proceedings must be had, at the time and place to which the term is adjourned or changed, or, if it fails, at the next term, with like effect as if the term was held, as originally appointed. [Note 2213.]

§ 12d. Where the trial or hearing of an issue of fact, joined in an action or special proceeding, civil or criminal, has been commenced at a term of a court or record, it may, notwithstanding the expiration of the time appointed for the term to continue, be continued to the completion thereof; including, if the cause is tried by a jury, all proceedings taken therein until the actual discharge of the jury; or if it is tried by the court without a jury, until it is finally submitted for a decision upon the merits. [Note 2214.]

§ 12e. In case of the death, sickness, resignation, removal from office, absence from the county, or other disability of an officer before whom or in whose court a special proceeding has been instituted, where no express provision is made by law for the continuance thereof, it may be continued before the officer's successor, or any other officer residing in the same county, before whom it might have been originally instituted; or, if there is no such officer in the same county or in case such officer be disqualified, then before an officer in an adjoining county, who would originally have had jurisdiction of the subject matter, if it had occurred or existed in the latter county, and in case such special proceeding be pending in a county court and the county judge of the county be disqualified to hear and decide the same, then in such case all further proceedings therein may be had in the county court of any adjoining county, which court shall have jurisdiction to hear, try and determine the same and to enforce its order. [Note 2215.]

§ 12f. At the time and place specified in a notice or order, for a party to appear, or for any other proceeding to be taken, or at the time and place specified in the notice to be given, [as prescribed in this section,] the officer substituted as prescribed [in the last section, or in any other provision of] by law, to continue a special proceeding instituted before another, may act, with respect to the special proceeding, as if it had been originally instituted before him. [Note 2216.]

§ 31. Where an action or proceeding has been removed from the county court to the supreme court [Thereupon] the subsequent proceedings in the supreme court must be the same as if it had originally been brought in that court, except that an objection to the jurisdiction may be taken, which might have been taken in the county court. [Note 2217.]

GENERAL PROVISIONS

299

§31a. The removal of an action or special proceeding, as pre- §§ 31a-31e scribed in this title,] from one court to another does not invalidate, or in any manner impair, a process, provisional remedy, or other proceedings Validity of proceeding, or a bond, undertaking, or recognizance in the action on removal or special proceeding so removed; each of which continues to have from one the same validity and effect, as if the removal had not been made. court to [Note 2218.]

another

§ 31b. In the counties within the first and second judicial districts, Continuance a special proceeding instituted before a judge of a court of record, or of proceeding a proceeding commenced before a judge of the court, out of court, before judges in an action or special proceeding pending in a court of record may court be continued from time to time, before one or more other judges of the same court, with like effect, as if it had been instituted or commenced before the judge, who last hears the same. [Note 2219.]

ad litem

§ 31c. The court in which [the] an action or proceeding by or Power to against an infant, lunatic, idiot or habitual drunkard is brought, [or appoint a judge thereof, or if the action is brought in the supreme court, guardian the county judge of the county where the action is triable, may appoint a guardian ad litem for [an] the infant or incompetent [either plaintiff or defendant, as prescribed in this article]. [Note 2220.]

§ 31d. [Application] An action for the summary_removal of a person from real property, as prescribed in [this title,] the new practice or in other statutes may be made to the county judge or special county judge of the county or a justice of the peace of the city or town or the mayor or recorder of the city wherein the real property, or a portion thereof, is situated. [Application] An actim may also be [made,] brought, if the property, or a portion thereof, be situated in the city of New York, [to] before a judge of the city court of the city of New York or the [district] municipal court of the district within which the property, or a portion thereof, is situated; or if the judge of such court be for any reason disqualified, to the [district] municipal court of an adjoining district; if in the city of Brooklyn, to a police justice of that city; if in the city of Albany, to the city court, or the city of Troy, to [a justice of the justices' court of that city;] the city court; if in the city of Yonkers, to the city judge of that city; if in the cities of Syracuse, Rochester or Buffalo, to a judge of the municipal court of said cities. Where the property is situated in an incorporated village, the boundaries of which embrace portions of two or more towns, [application] an action may be [made to] brought before a justice of the peace of either town, who keeps an office in the village. [Note 2221.]

Court in

which action for disposes

sion may be brought

§ 31e. The court may, [in its discretion,] require any person, Court may before he receives his portion of the proceeds of the sale, in an action require brought for the partition of real property, to give such security as it security for directs, to the people, or to such parties or other persons, as it prescribes, to refund the same, or a portion thereof, with interest, if it thereafter appears that he was not entitled thereto; and a security

proceeds in

payment of

partition

§§ 31f-31j taken, [under any provision of this article, except as otherwise specially prescribed therein, must be taken in the name and official title of the county treasurer of the county in which the property sold is situated. He, and his successors in office, must hold the same for the use and benefit of the persons interested, subject to the order of the court. [Note 2222.]

Protection by court of unknown owners in partition

Court must direct investment of proceeds in foreclosure

Perpetuation of proof to action to determine

claim to real property

Court may

direct

stenog

rapher's

minutes to be written out

Jurisdiction in provisional remedies

§31f. If a person, entitled to an estate or interest in the property sold, in an action for partition is made a party as an unknown defendant, the court must provide for the protection of his rights, as far as may be, as if he was known and had appeared. [Note 2223.]

§ 31g. If there is any surplus of the proceeds of the sale in an action to foreclose a mortgage after paying the expenses of the sale, and satisfying the mortgage debt and the costs of the action, it must be paid into court, for the use of the person or persons entitled thereto. If any part of the surplus remains in court for the period of three months, the court must, if no application has been made therefor, and may, if an application therefor is pending, direct it to be invested at interest, for the benefit of the person or persons entitled thereto, to be paid upon the direction of the court. [Note 2224.]

§ 31h. The courts may make such rules and orders as to preserving the record of the evidence given in [such] an action [s] to compel the determination of a claim to real property and perpetuating the proofs produced therein, either with or without the awarding of any other relief to the party whose proofs are so perpetuated, as shall be necessary or proper, and may embrace such directions in the judgment. [Note 2225.]

§ 31. If the justice presiding requires a copy of any proceedings written out at length from stenographic notes, he may make an order, directing one-half of the stenographer's fees therefor, to be paid by each of the parties to the action or special proceeding, at the rate of ten cents for each folio as written out, and may enforce payment thereof. Any such copy shall be accessible to, and may be examined by, any of the counsel in the cause. If there are two or more parties on the same side, the order may direct either of them to pay the sum payable by their side, for the stenographer's fees; or it may apportion the payment thereof among them, as the justice deems just. [Note 2226.]

§ 31j. From the time of the granting of [a provision] an anticipatory remedy, the court acquires jurisdiction, and has control of all the subsequent proceedings; [Nevertheless] but jurisdiction thus acquired is conditional, and liable to be divested, in a case where [the] jurisdiction [of the court] is made dependent, by a special provision of law, upon some act, to be done after the granting of the [provisional] anticipatory remedy. [Note 2227]