§§ 234-235 Designation for service Action on liability created by statute ARTICLE 36 SERVICE OF PAPERS see also Substituted Service § 234. A resident of the state, of full age, may execute under his hand, and acknowledge, in the manner required by law to entitle a deed to be recorded, a written designation of another resident of the state, as a person upon whom to serve a summons, or any process or other paper for the commencement of a civil special proceeding, in any court or before any officer, during the absence from the state of New York of the person making the designation; and may file the same, with the written consent of the person so designated, executed and acknowledged in the same manner, in the office of the clerk of the county, where the person making the designation resides. The designation must specify the occupation, or other proper addition, and the residence of the person making it, and also of the person designated; and it remains in force during the period specified therein, if any; or, if no period is specified for that purpose, for three years after the filing thereof. But it is revoked earlier, by the death or legal incompetency of either of the parties thereto; or by the filing of a revocation thereof, or of the consent, executed and acknowledged in like manner. While the designation of a person upon whom to make service remains in force, a summons, against the person making it, in any court or before any officer, may be served upon the person so designated, in like manner and with like effect, as if it were served personally upon the person making the designation, notwithstanding the return of the latter to the state of New York. [Note 1551.] SHERIFF, see County Law. ARTICLE 37 STATUTE see also Penalty and Forfeiture § 235. An action to recover upon a liability created by statute, except a penalty or forfeiture, must be commenced within six years after the cause of action has accrued. [Note 1552.] SUING IN NAME OF ANOTHER ARTICLE 38 SUBSTITUTED SERVICE SO 77 §§ 236-239 service § 236. Where the summons is served, pursuant to an order for Effect of substituted service [made as prescribed in this article,] in any other substituted manner than personally without the state and the defendant served does not appear, he, or his representative, on application and sufficient cause shown, at any time before final judgment, must be allowed to defend the action; and, except in an action for divorce, or wherein the contrary is expressly prescribed by law, such defendant, or his representative, must, in like manner, upon good cause shown, and upon just terms, be allowed to defend, after final judgment, at any time within one year after personal service of written notice thereof; or, if such a notice has not been served, within seven years after the filing of the judgment-roll. If the defence is successful, and the judgment, or any part thereof, has been collected or otherwise enforced, such restitution may thereupon be compelled, as the court directs; but the title to property sold to a purchaser in good faith, pursuant to a direction contained in the judgment, or by virtue of an execution issued upon the same, shall not be affected thereby. [So much of section 445 of this act, as requires the court to allow a defendant to defend an action, after final judgment,] This section does not apply to an action for partition. [Note 1553.] ARTICLE 39 SUING IN NAME OF ANOTHER suing in name of another § 237. If a person, vexatiously or maliciously, in the name of Action for another but without the latter's consent, or in the name of an unknown person, commences or continues, or causes to be commenced or continued, an action or special proceeding, in a court, of record or not of record, or a special proceeding before a judge or a justice of the peace; or takes, or causes to be taken, any proceeding, in the course of an action or special proceeding in such a court, or before such an officer, either before or after judgment or other final determination; an action, to recover damages therefor, may be maintained against him, by the adverse party to the action or special proceeding. [Note 1554.] § 238. An action specified in the preceding section [and a like action] may be maintained by the person, if any, whose action by person whose name was thus used. [Note 1555.] Action by person whose name was used Damages in § 239. In an action, brought by the adverse party, as prescribed in the last section, the plaintiff, if he recovers final judgment, is entitled action for to recover treble damages. In an action, brought by the person suing in whose name was used, as prescribed in the last section, the plaintiff another is entitled to recover his actual damages, and two hundred and fifty dollars in addition thereto. [Note 1556.] name of §§ 240-241 Action by trustee,; Action against defaulting witness SUMMARY POSSESSION, see Real Property Law. SUPPLEMENTARY PROCEEDINGS, see Debtor and Creditor Law. SURROGATE, see Judiciary Law. SURVEY, see Real Property Law. TENANT FOR LIFE, see Real Property Law. TENANTS IN COMMON, see Real Property Law. TENURE OF REAL PROPERTY, see Real Property Law. TREES AND WOOD, see Real Property Law. ARTICLE 40 TRUST AND TRUSTEE § 240. A county treasurer, or other officer, or a guardian, committee, or other trustee, in whose name is taken a bond, mortgage, or other security, or public stock, representing money, paid into court, in an action; or to whom stock or a security, or an account, deed, voucher, receipt, or other paper, representing or relating to such money, is transferred, delivered, made, or given, pursuant to law, is vested with title for the purposes of the trust, and may bring an action upon or in relation to the same, in his official or representative character. [Note 1557.] UNDERTAKING, see Bond and Undertaking. UNINCORPORATED ASSOCIATION, see General Association Law. WASTE, see Real Property Law. WILL, see Decedent Estate Law. ARTICLE 41 WITNESS § 241. A person who is duły subpoenaed, as prescribed [in the last section] by law, must obey the subpoena; and if he fails so to do, without a reasonable excuse, he is liable, in addition to any other punishment which may be lawfully inflicted therefor, for the damages sustained by the person aggrieved, in consequence of the failure, and fifty dollars in addition thereto to be recovered [as prescribed in section 853 of this act] by action. [Note 1558 j § 242. A person [so] duly subpoenaed, who fails, without reason- §§ 242-243 able excuse, to obey the subpoena, or a person who fails, without Disobedience reasonable excuse, to obey an order, duly served upon him, made by of witness to the court, or a judge, in an action, before or after final judgment subpoena therein, requiring him to attend, and be examined, or so to attend, and bring with him a book or paper, is liable, in addition to punishment for contempt, for the damages sustained by the party aggrieved in consequence of the failure, and fifty dollars in addition thereto. Those sums may be recovered in one action, or in separate actions. If he is a party to the action in which he was subpoenaed, the court may, as an additional punishment, strike out his pleading. This section applies [The foregoing provisions of this title, relating to a person required, by an order of a court, to attend, apply,] where such an attendance is required by the terms of a judgment []; but does [The foregoing sections of this title do] not apply to a subpoena issued by a justice of the peace; or to a witness subpoenaed to attend a court held by a justice of the peace; or to a case where special provision is otherwise made by law, for compelling the attendance of a witness. [Note 1559.] witness § 243. Except as otherwise specially prescribed in [this article,] Mode of when an oath is administered, the witness shall lay his hand on the swearing gospels and express assent to the oath, and it shall be according to the present practice except that the witness need not kiss the gospels. The oath must be administered in the following form, to a person who so desires, the laying of the hand upon the gospels being omitted: "You do swear, in the presence of the ever-living God." While so swearing, he may or may not hold up his hand, at his option. A solemn declaration or affirmation, in the following form, must be administered to a person who declares that he has conscientious scruples against taking an oath, or swearing in any form: "You do solemnly, sincerely, and truly, declare and affirm." If the court or officer, before which or whom a person is offered as a witness, is satisfied, that any peculiar mode of swearing, in lieu of, or in addition to laying the hand upon the gospels, is, in his opinion, more solemn and obligatory, the court or officer may, in its or his discretion, adopt that mode of swearing the witness. A person believing in a religion, other than the Christian, may be sworn according to the peculiar ceremonies, if any, of his religion, instead of as prescribed in this section. [845 or section 846 of this act.] [Note 1560.] WRITS, see Certiorari; Habeas Corpus; Mandamus; Prohibition. §§ 244-245 Construction of act ARTICLE 42 CONSTRUCTION § 244. The provisions of this [chapter] act apply, and constitute the only rules of limitation applicable, to a civil action or special proceeding, except in one of the following cases: 1. A case, where a different limitation is specially prescribed by law, or a shorter limitation is prescribed by the written contract of the parties; 2. A cause of action or a defence which accrued before the first day of July, 1848. The statutes then in force govern, with respect to such a cause of action or defence; 3. A case, not included in the last subdivision, in which a person is entitled, when this act takes effect, to commence an action, or to institute a special proceeding, or to take any proceeding therein, or to pursue a remedy upon a judgment, where he commences, institutes, or otherwise resorts to the same, before the expiration of two years after [this act takes effect] June 2, 1876; in either of which cases, the provisions of law applicable thereto, immediately before this act takes effect, continue to be so applicable, notwithstanding the repeal thereof; 4. A case, where the time to commence an action [has] had expired, [when this act takes effect.] June 2, 1876. The word, "action", contained in this [chapter] act, is to be construed, when it is necessary so to do, as including a special proceeding, or any proceeding therein, or in an action. [Note 1561.] ARTICLE 43 Effect EFFECT. § 245. This act shall take effect September first, nineteen hundred and sixteen. |