페이지 이미지
PDF
ePub

379,

403.

1278. One or more joint debtors may confess a judg- 59 How. Pr. ment for a joint debt, due or to become due. Where all the joint debtors do not unite in the confession, the judgment 93 N. Y. 349. must be entered and enforced against those only who confess- 31 Hun, 390. ed it; and it is not a bar to an action against all the joint 9N. Y, Stalo debtors, upon the same demand.

Rep. 510.

123 N.Y. 115. 20 Abb. N. C. 321; 29 N. Y. State Rep. 258.

29 Abb. N.O. ARTICLE SECOND. SUBMISSION OF A CONTROVERSY, UPON FACTS ADMITTED. 1219. Controversy, how submit.

comes an action. ted without process

1281. Subsequent proceedings 10). Papers to be filed; con

regulated. troversy thereupon be$ 1279. The parties to a question in difference, which

8 Misc. 606.

10 Week. might be the subject of an action, being of full age, may Dig. 273. agree upon a case, containing a statement of the facts, upon 11 Week. which the controversy depends; and may present a written Dig. 186. submission thereof to a court of record, which would have 92 N. Y.622; jurisdiction of an action, brought for the same cause. The case

95 Id. 657. must be accompanied with the affidavit of one of the parties, to

42 Hun, 599. the effect, that the controversy is real; and that the submis- Rep. 685.

7 N. Y. State skon is maile in good faith, for the purpose of determining the 114 N. Y. 518. rights of the parties. The submission must be acknowledged 133 N.Y. 239. or proved, and certified, in like manner as a deed, to be recorded in the county where it is filed. 13 N. Y. 406, 581; 137 Id. 580; 31 App. Div. 535.

$ 1280. The case, submission, and affidavit, must be filed 10 Week. in the office of the clerk of the court, to which the submission Dig. 273. is made. If the subinission is made to the supreme court, they must be filed in the office of the county clerk, if any, specified in the submission; if no county clerk is so specified, they may be filed in the office of any county clerk. The filing is a presentation of the submission ; and thenceforth the controversy becomes an action; and each provision of law, relating to a proceeding in an action, applies to the subsequent proceedings therein, except as otherwise prescribed in the next section

8 Misc. 606. $ 1281. Subsequent proceedings regulated. [Am'd 1895, 1899.) An order of arrest a temporary injunction, or 8 Warrant of attachment, cannot be granted in such an action; the costs thereof are always in the discretion of the court, but costs cannot be taxed, for any proceedings before notice of trial; the action must be tried by the court, upon the case alone; and the case, submission, affidavit, and a cer. lified copy of the judgment, and of any order or paper neces. sarily affecting the judgment, constitute the judgment roll If the action is in the supreme court it must be tried and judgment rendered by the appellate division thereof, and if in the city court of the city of New York, it must be tried and jodgment rendered at the general term thereof. If the state. ment of facts contained in the case, is not sufficient to enable the court to render judgment, an order must be made dismissing the submission, without costs to either pariy ; uuless the court permits the parties, or, in a proper case their representatives, to file an additional statement, which it may do, in its discretion without prejudice to the original statement.

TITLE III.
Pacating or setting aside a judgment, for irregularity or

error in fuct. ! 1282 Motion to set aside judg. 18Motion to set aside judg. ment for irregularity;

ment for error in fact; when it may be heart

when it may be made by party.

120.

2 1284. Id.; after a party's death.

ment has been convey. 1285. Id.; by a person not a

ed. party.

& 1289. How notice given under 1286. Id.; when several parties

this title. are entitled to move.

1290. Within what time motion 1287. To whom notice of the

to be made. motion must be given, 1291, Exceptions in cases of 1288. Id.; when real property

disability, recovered by the judg- 1292. Restitution; when di

rected. 78 N. Y. 362;

& 1282. A motion to set aside a final judgment, for ir98 Id. 434. regularity, shall not be heard, after the expiration of one 3 N.Y.Supp. year since the filing of the judgment-roll; unless notice there120.

of is given for a day within the year, and either the hearing 119 N.Y. 414. is adjourned, by one or more orders, until after the expiration 136 N.Y. 287.

of the year; or the term, for which it is thus noticed, is not 31 Abb. N. C. held. In the latter event, the motion may be re-noticed for, 417; 8 Misc. 482.

and heard at, the next term at which it can be made, held not 1:03 N. Y. 109. less than ten days after the day, when the first term was ap

pointed to be held. 78 X Y 362.

$ 1283. A motion to set aside a final judgment, rendered 3 N. Y. Supp. in a court of record, for error in fact, not arising upon the

trial, may be made by the party against whom it is rendered; or, is an execution has not been issued thereon, and the judgmént has not been wholly or partly satisfied or enforced, by the party in whose favor it is rendered.

$ 1284. A like motion may be made, after the death of a party entitled to make it, as prescribed in the last section, by the following persons :

1. Where the judgment awards a sum of money, or a chattel, or an interest in real property, which is declared by law to be assets, the motion may be made by his executor or administrator.

2. Where the judgment awards real property, or the pos session thereof, or where the title to or an estate or interest in real property is determined or affected thereby, the motion may be made by the heir of the decedent, to whom the real property descended, or might have descended, or by the person to whom he devised it.

3. Where the judgment is rendered against or in favor of two or more persons, the motion may be made, jointly, by the survivor, and the person who would have been entitled to make it, if the judgment had been rendered in favor of or against the decedent only.

$ 1285. A motion may be made, either before or after the death of the defendant, by a person, who is not a party, to set aside, for error in fact, not arising upon the trial, i judgment, rendered in an action against a tenant for life, or for years, awarding real property, or the possession of real property, in which the person making the motion has an estate, or interest, in reversion or remainder.

$ 1286. Where two or more persons are entitled to move to set aside a judgment, as prescribed in the last three sections, one or more of them may move separately ; but, in that case, notice of the motion must be given to those who do not join therein, in like manner as if they were adverse parties.

$ 1287. Notice of a motion to set aside a final judgment, for error in fact, not arising upon the trial, must be given to the adverse party, or, in case of his death, to each person who might have moved, as against the moving party, to set aside

tre jugment for the same cause, as prescribed in this title. there ihe motion is made by the party against whom the moment is rendered, or by his heir, revisee, executor, or adin miserialer, service of the notice, upon the attorney of record 119 the party, in whose favor the judgment is rendered, has the like effect, as if it was served upon the party.

S 1283. Where the judgment awards real property, or the possession thereof, or where the title to, or an estate or i cirstii, real property is determined or affected thereby, zil the real property, or estate, or interest tberein, has been regel, by tbe adverse party, more than eight days before Tehering of the motion, notice of the motion must also be sentó each actual occupant of the property, claiming under the couleyance.

1289. Notice must be given, in a case specified in this title, by personal service of a written notice, or of an order to

cause why the motion should not be granted ; or, if a person entitled to notice cannot, with due diligence, be found within the State, in any manner which the court, or a judge 'hereof, directs in an order to show cause, or which the court directs in a subsequent order.

1290. A motion to set aside a final judgment, for error 78 N. Y. 362. in fact, not arising upon the trial, shall not be heard, except 3 Redf. 477. us specified in the next section, after the expiration of two 33 Hun, 351; bears since the filing of the judgment-roll, unless notice there- 43 Id. 586. til is given, for a day within the two years ; and either the 3 N. Y.Supr. beiring is adjourned, by one or more orders, until after the

136 N. Y. 287. expiration of the two years; or the term, for which it is thus 29 Abb, x.c. noticed, is not held. In the latter event, the motion may be

404. re-noticed for, and heard at, the next term at which it can be 153 N. Y. 309. made, held not less than ten days after the day, when the first term was appointed to be held.

$ 1291. If the person against whom the judgment is ren- 29 Abb. N.C. dered, is, at the time of filing the judgment-roll, either 1. Within the age of twenty-one years ; or

78 Hun, 302. 2. Insane; or 3. Imprisoned on a criminal charge, or in execution, upon conviction of a criminal offence, for a term less than for life ;

The time of such a disability is not a part of the time, limiter by the last section ; except that the time within which the mition may be heard, cannot be extended more than five 17919 by such a disability nor, in any case, more than one Vear after the disability ceases.

$ 1292. Where a judgment is set aside for any cause, 132 N Y. 363 " instion, the court may direct and enforce restitution, in 7 Miec 76. ile mamer, with like effect, and subject to the same condi11 112%, it's where a judgment is reversed upon appeal.

120.

404.

The Union Surety and Guaranty Co.

CHAPTER XII.

APPEALS.
TITLE I.-GENERAL PROVISIONS, RELATING TO THE APPEALS

PROVIDED FOR IN THIS CHAPTER.
TITLE II.-APPEAL TO THE COURT OF APPEALS.
TITLE III.-APPEAL TO THE SUPREME COURT FROM AN INFE-

RIOR COURT.
TITLE IV.-APPEAL TO THE APPELLATE DIVISION OF THE

SUPREME COURT.
TITLE V.-APPEAL FROM A FINAL DETERMINATION IN A SPEC-

IAL PROCEEDING.

of.

cases,

TITLE I.
General provisions, relating to the appeals provided for in

this chapter.
2 1293. Writs of error abolish-

when not to be brought. ed.

2 1310. When appeal says pro1294. When party may appeal.

ceedings ; effect there. 1295. Parties to appeal ; how

designated. Title of 1311. Lery upon personal prop cause.

erty, when superseded 1296. When a person entitled

by appeal. to become a party may

1312. Court may limit amount appeal.

of security in certain 1297. Appeal when adveree party has died.

1313. No security necessary, an 1298. Proceedings, when party

appeal by the people, dies pending appeal.

etc. 1299. Order of substitution.

1314. Id.; on appeal by munici. 1300). Appeal, how taken.

pal corporation. 1301. When notice of appeal to 1315. Papers to be transmitted specify interlocutory

to appellate court. judgment, etc.

1316. Interlocutory judgment. 1302. Proceedings, if attorney

or intermediate order, or party not found.

may be reviewed. 1303. Defects in proceedings 1317. Judgment or order on apmay be supplied.

peal. 1304. Order appealed from 1318. When no appeallies from must be entered. Pro

judgment of reversal. ceedings to compel 1319. Mode of enforcing affirm. entry

ed or modified judg. 1305. Security may be waived.

ment.
1306. Deposit, in lieu of under- 1320. Jd.; as to order.
taking.

1321. Mode of cancelling dock-
1307. Undertaking
must be

et of reversed or modi. filed.

fied judgment. 1308. New undertaking to be 1322. Id.; when reversal, etr., given, when Bureties

uns hy court of appeal are insolvent, etc.

1323. Restitution; when award1309. Action upon undertaking,

ed. 29 Abb. N.C. 8 1293. The writ of error in a civil action or special pro

ceeding has been abolished.

$ 1294. A party aggrieved may appeal, in a case pre110 V.Y.502.

scribed in this chapter, except where the judgment or order, N.Y. 426. 29 Abb. N.C.

of which he complains, was rendered or made upon his de fault. 1 App. Div. 127; 8 Id. 547. 15 Iu. 290.

§ 1295. The party or person appealing is designated as 27 Hun, 18. 100 XY. 243.

the appellant, and the adverse party as the respondent. After an appeal is taken to another court, the name of the appellate court must be substituted, for that of the court below, in the title of the action or special proceeding, and in any case, the name of the county, if it is mentioned, may be omitted; other

479.

130.

wise the title shall not be changed, in consequence of the appeal.

$ 1296. A person aggrieved, who is not a party, but is entitled by law to be substituted, in place of a party ; or who has acquired, since the making of the order, or the rendering of the judgment appealed from, an interest, which would have entitled bim to be so substituted, if it had been previously acquired, may also appeal, as prescribed in this chapter, for an appeal by a party. But the appeal cannot be heard until he has been substituted in place of the party; and if he unreasonably neglects to procure an order of substitution, the appeal may be dismissed, upon motion of the respundent.

$ 1297. Where the adverse party has died, since the making of the order, or the rendering of the judgment appealed from, or where the judgment appealed from was rendered, after his death, in a case prescribed by law, an appeal may be taken, as if he was living ; but it cannot be heard, until the heir, devisee, executor, or administrator, as the case requires, has been substituted as the respondent. In such a case, an undertaking required to perfect the appeal, or to stay the execution of the judgment or order appealed from, must recite the fact of the adverse party's death ; and the undertaking enures, after substitution, to the benefit of the person substituted.

$ 1298. (Am'd 1877.) Where either party to an appeal 5 Week. dies, before the appeal is heard, or has heretofore died, and Dig 267. the appeal has not been heard, if an order, substituting another 119 N. Y. 117. person in his place, is not made, within three months after his death, or, where he has heretofore died, within three months after this section takes effect, the court, in which the appeal is pending, may, in its discretion, make an order, requiring all persons interested in the decedent's estate, to show cause before it, why the judgment or order appealed from should not be reversed or affirmed, or the appeal dismissed, as the case requires. The order must specify a day, when cause is to be shown, which must be not less than six months after making the order; and it must designate the mode of giving notice to the persons interested. Upon the return day of the order, or at a subsequent day, appointed by the court, if the proper person has not been substituted, the court, upon proof, by affidavit, that notice has been given, as required by the order, may reverse or affirm the judgment or order appealed from or dismiss the appeal, or make such further order in the premises, as justice requires.

$ 1299. Where the appeal is from one court to another, an application for an order of substitution, as prescribed by the last three sections, must be made to the appellate court. Where personal service of notice of application for an order bas been made, within the State, upon the proper represen tatives of the decedent, an order of substitution may be made, upon the application of the surviving party.

$ 1300. An appeal must be taken, hy serving, upon the 76 N. Y. 106 attorney for the adverse party, as prescribed in article third 9 Daly, 482. of title sixth of chapter eighth of this act, and upon the clerk, with whom the judgment or order appealed from is entered, 24. App. Div. by filing it in his office, a written notice, to the effect, that the appellant appeals from the judgment or order. or from a specified part thereof.

519.

1

« 이전계속 »