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Amendment.

determine

Chap. 104.
AN ACT to amend section twenty-six hundred and fifty-three-a of

the code of civil procedure, relating to the actions to determine

the validity of probate of wills.
Became a law March 23, 1897, with the approval of the Governor.

Passed, three-fifths being present.
The People of the State of New York, represented in Senate and
Assembly, do enact as follows:

Section 1. Section twenty-six hundred and fifty-three-a of the

code of civil procedure is hereby amended so as to read as follows: Actions to

§ 2653a. Any person interested as devisee, legatee or otherwise, validity of in a will or codicil admitted to probate in this state, as provided probate of will.

by the code of civil procedure, or any person interested as heir-atlaw, next of kin or otherwise, in any estate, any portion of which is disposed of, or affected, or any portion of which is attempted to be disposed of, or affected, by a will or codicil admitted to probate in this state, as provided by the code of civil procedure, may cause the validity of the probate thereof to be determined in an action in the supreme court for the county in which such probate was had. All the devisees, legatees and heirs of the testator and other interested persons, including the executor or administrator must be parties to the action. Upon the completion of service of all parties, the plaintiff shall forthwith file the summons and complaint in the office of the clerk of the court in which said action is begun and the clerk thereof shall forthwith certify to the clerk of the surrogate's court in which the will has been admitted to probate, the fact that an action to determine the validity of the probate of such will has been commenced, and on receipt of such certificate by the surrogate's court, the surrogate shall forthwith transmit to the court in which such action has been begun a copy of the will, testimony and all papers relating thereto, and a copy of the decree of probate

attaching the same together, and certifying the same under the seal Issue of

of the court. The issue of the pleadings in such action shall be pleadings confine l. confined to the question of whether the writing produced is or is

not the last will and codicil of the testator, or either. It shall be tried by a jury and the verdict thereon shall be conclusive, as to

real or personal property, unless a new trial be granted or the judgTrial by

ment thereon be reversed or vacated. On the trial of such issue, jury

the decree of the surrogate admitting the will or codicil to probate shall be prima facie evidence of the due attestation, execution and validity of such will or codicil. A certified copy of the testimony of such of the witnesses examined upon the probate, as are out of the jurisdiction of the court, dead, or have become incompetent since the probate, shall be admitted in evidence on the trial. The

ments.

party sustaining the will shall be entitled to open and close the evidence and argument. He shall offer the will in probate and rest. The other party shall then offer his evidence. The party sustaining the will shall then offer his other evidence and rebutting testimony may be offered as in other cases. If all the defendants make default in pleading, or if the answers served in said action raise no issues, then the plaintiff may enter judgment as provided in article two of chapter eleven of the code of civil procedure in the case of similar defaults in other actions. If the judgment to be entered in an Judgaction brought under this section is that the writing produced is the last will and codicil, or either, of the testator, said judgment shall also provide that all parties to said action, and all persons claiming under them subsequently to the commencement of the said action, be enjoined from bringing or maintaining any action or proceeding, or from interposing or maintaining a defence in any action or proceeding based upon a claim that such writing is not the last will or codicil, or either, of the testator. Any judgment heretofore entered under this section, determining that the writing produced is the last will and codicil, or either, of the testator, shall, upon application of any party to said action, or any person claiming through or under them, and upon notice to such persons as the court at special term shall direct, be amended by such court so as to enjoin all parties to said action, and all persons claiming under the parties to said action subsequently to the commencement thereof, from bringing or maintaining any action or proceeding impeaching the validity of the probate of the said will and codicil, or either of them, or based upon a claim that such writing is not the last will and codicil, or either, of the testator, and from setting up or maintaining such impeachment or claim by way of answer in any action or proceeding. When final judgment shall have been entered in such action, a copy thereof shall be certified and transmitted by the clerk of the surrogate's court in which such will was admitted to probate. The action Limitation brought as herein provided shall be commenced within two years after the will or codicil has been admitted to probate, but persons within age of minority, of unsound mind, imprisoned, or absent from the state, may bring such action two years after such disability has been removed.

$ 2. This act shall take effect September first, eighteen hundred when take and ninety-seven, and shall not affect any action or proceeding now pending

of action.

effect.

Plans.

Chap. 105.
AN ACT to provide for the construction of a hoist-bridge over the

Erie canal at the head of Railroad street in the village of Ilion,

Herkimer county, and making an appropriation therefor.
Became a law March 23, 1897, with the approval of the Governor.

Passed, three-fifths being present.
The People of the State of New York, represented in Senate and

Assembly, do enact as follows:
Construc-
tion of

Section 1. The superintendent of public works is hereby authorbridge.

ized to remove the bridge over the Erie canal in Railroad street, in the village of Ilion, and to provide for the construction of a lift or hoist bridge over the Erie canal at that point in said village, for the necessary approaches thereto, and the necessary machinery to operate such bridge upon plans and specifications to be drawn up and prepared by the state engineer and surveyor immediately after the passage of this act. Such plans and specifications shall provide

for the construction of such bridge for a sum not to exceed eighteen Operation thousand dollars. Such bridge shall be operated under the direction

of the superintendent of public works at the expense of the village of Ilion.

§ 2. Upon the completion of such plans and specifications, the superintendent of public works is authorized to proceed as soon as practicable with the construction of such bridge, the approaches thereto and machinery therefor, in accordance with such plans and specifications; but before any money appropriated for the above work shall be expended, except for plans, specifications and advertising, the said work shall be let by contract to the lowest responsible bidder after duly advertising therefor, as public works are

usually let by contract. Appropria- $ 3. The sum of eighteen thousand dollars is hereby appropriated tion.

for the purposes of this act, payable by the treasurer, on the warrant of the comptroller, to the order of the superintendent of public works.

§ 4. This act shall take effect immediately.

Commencement of work.

Contracts.

Chap. 106.
AN ACT making appropriation and authorizing the expenditure

of certain moneys for the completion of the interior work and
equipment of the mess halls, chapels, hospitals, kitchens, store-
houses, bath houses, laundry and state shops contained in the new
buildings at Sing Sing state prison, authorized by chapter four
hundred and eighty-seven of the laws of eighteen hundred and
ninety-four, and by chapter ninety-six of the laws of eighteen

hundred and ninety-five.
Became a law March 23, 1897, with the approval of the Governor.

Passed, three-fifths being present.
The People of the State of New York, represented in Senate and
Assembly, do enact as follows:

Section 1. The sum of forty-five thousand dollars, or so much Expendithereof as may be necessary, is hereby authorized to be expended by improvethe superintendent of state prisons out of the moneys received by thorized. the agent and warden of said Sing Sing prison, as the proceeds of the labor of the prisoners and the sales of articles manufactured by them, now standing to the credit of the said agent and warden in the bank or banks designated for such deposits, in completing the interior work and equipping the mess halls, chapels, hospitals, kitchens, storehouses, bathhouses, laundry, and state shops contained in the new buildings authorized to be built by chapter four hundred and eighty-seven, laws of eighteen hundred and ninety-four, and chapter ninety-six of the laws of eighteen hundred and ninety-five, also in completing the addition to the clerk's office of said prison. § 2. The work and labor in completing and equipping said build- Work by

. ings under the provisions of this act shall, as far as practicable, be done by the convicts confined in said prison, and the moneys authorized to be expended under the first section of this act will be drawn Moneys,

how drawn from the bank and accounted for in the same manner as moneys and ac. drawn for the maintenance of the industries carried on in the said for. prison and as provided by the laws relating thereto. § 3. This act shall take effect immediately.

Vol. I 6.

counted

Chap 113.
AN ACT to provide for the building of a bridge over the Oswego

canal in the village of Fulton and county of Oswego, and making

an appropriation therefor.
Became a law March 25, 1897, with the approval of the Governor.

Passed, three-fifths being present.
The People of the State of New York, represented in Senate and

Assembly, do enact as follows: Erection of Section 1. The superintendent of public works is hereby authorbridge.

ized and directed to remove the bridges now spanning the Oswego canal on the lines of Oneida street and First street in the village

of Fulton, and erect in place thereof one modern steel bridge, with Plans. suitable foundations therefor and approaches thereto, upon plans

and specifications to be prepared or approved by the state engineer

and surveyor. Appropria

§ 2. The sum of thirty thousand dollars, or as much thereof as may be needed, is hereby appropriated for the purposes of this act, payable by the treasurer on the warrant of the comptroller to the order of the superintendent of public works.

$ 3. This act shall take effect immediately.

tion.

Chap. 119.
AN ACT to amend section thirteen hundred and thirty-one of the

code of civil procedure, relative to the possession of real property Became a law March 25, 1897, with the approval of the Governor.

Passed, three-fifths being present.
The People of the State of New York, represented in Senate and
Assembly, do enact as follows:

Section 1. Section thirteen hundred and thirty-one of the code of civil procedure is hereby amended to read as follows:

§ 1331. Id; on judgment, etc., for the possession of real property.—If the judgment or order directs the sale or the delivery of the possession of real property, or entitles the respondent to the immediate possession thereof, an appeal does not stay the execution of the judgment or order until the appellant gives a written undertaking to the effect that he will not, while in possession of the property, commit, or suffer to be committed, any waste thereon; and if the property is in his possession or under his control, the undertaking must also provide that if the judgment or order is affirmed or the appeal is dismissed, and there is a deficiency upon a sale, he will pay the value of the use and occupation of such

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