maintain an action, to compel a just and equal contribution by all the persons, whose real property ought to contribute as prescribed in the next section but one. ART. 4. part owner § 1482. Where the heir, devisee, or grantee, of a judgment debtor, Id.; when having an absolute title to a distinct parcel of real property, sold by redeems. virtue of an execution, redeems, as prescribed in section one thousand four hundred and fifty-eight of this act, the property sold, or any part or parts thereof separately sold, which include his property; he may, in like manner, maintain an action, to compel a just and equal contribution by those, who own the residue of the property thus redeemed. contribu § 1483. Where an action is brought, as prescribed in the last two Order of sections, the real property is liable to contribution in the following on order: 1. If it comprises different undivided shares or distinct parcels, which have been conveyed by the judgment debtor, they are liable in succession, commencing with the portion last conveyed. 2. If it comprises different undivided shares or distinct parcels, which have been sold by virtue of two or more executions, they are liable in succession, commencing with the portion sold under the last and youngest judgment. 3. If it comprises different undivided shares or distinct parcels, some of which have been conveyed by the judgment debtor, and some of which have been sold by virtue of one or more executions, they are respectively liable in succession, according to the order prescribed in the first and second subdivisions of this section. tion, how § 1484. For the purpose of enforcing contribution, as prescribed in Contributhe last section, the court, in which the action is brought, may, and in enforced a proper case, must, permit the plaintiff to use the original judgment, by means of original and to collect, by an execution issued thereupon, out of any real prop- judgment. erty subject to the lien thereof, the sum which ought to be contributed by that property. For that purpose, the lien of the original judgment, upon that real property, when preserved, as prescribed in the next section, continues, for the term prescribed in sections one thousand two hundred and fifty-one and one thousand two hundred and fifty-five of this act, to the extent of the sum, which ought to be so contributed, notwithstanding the payment made by the party seeking contribution. § 1485. The lien of the original judgment may be preserved, as pre- Requisites scribed in the last section, by filing, in the clerk's office of the county the lien. where the real property is situated, within twenty days after the payment, for which contribution is claimed, an affidavit, in behalf of the person aggrieved, stating the sum paid, and his claim to use the judgment for the reimbursement thereof, with a notice, requiring the clerk to make the entries specified in the next section. But the lien is not preserved, as against a grantee or mortgagee in good faith, for a valuable consideration, without notice, and before the entries are actually made. to preserve § 1486. On filing the affidavit and notice, the clerk must make, upon Entry upon the docket of the judgment, an entry, stating the sum paid, and that the docket. the judgment is claimed to be a lien to that amount. Where it is desired to preserve the lien, upon property situated in two or more counties, a similar affidavit and notice must be filed with, and a similar entry made by, the clerk of each county. 287 TITLE 3. In what cases execution may be issued against the person. Id.; against a woman. When execution against property must be TITLE III. Execution against the person. SECTION 1487. In what cases execution may be issued against the person. 1489. When execution against property must be first issued. 1490. Simultaneous executions not allowed against property and person. 1491. Id.; when debtor has been taken. 1492. New execution may issue after escape. 1493. Id.; when debtor dies charged in execution. 1494. Id.; when creditor discharges debtor after thirty days. 1495. New execution not to be enforced against real property sold, etc. § 1487. Where a judgment can be enforced by execution, as prescribed in section one thousand two hundred and forty of this act, an execution, against the person of the judgment debtor, may be issued thereupon, subject to the exception specified in the next section, in either of the following cases: 1. Where the plaintiff's right to arrest the defendant depends upon the nature of the action. 2. In any other case, where an order of arrest has been granted and executed in the action, and has not been vacated. § 1488. But an execution cannot be issued against the person of a woman, unless an order of arrest has been granted and executed in the action, and has not been vacated. § 1489. Unless the judgment debtor is actually confined, without having been admitted to the liberties of the jail, by virtue of an execution against his person, issued in another action, or of an order of arrest first issued. Or a surrender by his bail, in the same action, an execution against his Simultane ous executions not allowed against person cannot be issued, until an execution against his property has been returned, wholly or partly unsatisfied. If he is a resident of the State, the execution against his property must have been issued to the county where he resides. § 1490. An execution against the person of the judgment debtor cannot be issued, without leave of the court, while an execution against his property, issued in the same action, remains unreturned; and an property execution against his property cannot be issued, without leave of the and person. court, while an execution against his person, issued in the same action, remains unreturned. Id.; when debtor has § 1491. Where a judgment debtor has been taken, and remains in been taken. custody, by virtue of an execution against his person, another execution cannot be issued, in the same action, against his person or his property, except in a case specially prescribed by law. New exe- § 1492. If a judgment debtor escapes, after having been taken, by iste after virtue of an execution against his person, he may be retaken, by virtue of a new execution against his person; or an execution against his property may be issued, as if the execution, by virtue of which he was taken, had been returned, without his having been taken. escape. Id.; when debtor dies § 1493. Where a judgment debtor, who has been taken by virtue of charged in an execution against his person, dies while in custody, a new execution execution. against his property may be issued, as if the execution, by virtue of which he was taken, had been returned without his having been taken. Id.; when § 1494. At any time after a judgment debtor has remained in cusdischarges tody, by virtue of an execution against his person, for the space of creditor TITLE 3. thirty days, the judgment creditor may serve upon the sheriff a writ- debtor aften notice, requiring him to discharge the judgment debtor from cus- ter thirty tody, by virtue of the execution. Whereupon the sheriff must discharge days. the judgment debtor, and return the execution accordingly. After service of such a notice, another execution, against the person of the judgment debtor, cannot be issued upon the judgment; but after his discharge, the judgment creditor may otherwise enforce the judgment, as if the execution, from which he was discharged, had been returned, without his having been taken. cution not forced § 1495. A new execution against property, issued in a case specified New exein the last two sections, cannot be enforced against an interest in real to be enproperty, including a chattel real, which was purchased, in good faith, against from the judgment debtor, after the recovery of the judgment upon real propwhich it is issued; or which was sold by virtue of an execution, issued erty sold, upon a previous or subsequent judgment. § 1496. This act shall take effect on the first day of May, eighteen hundred and seventy-seven. [19] 289 etc. CHAPTER 449. Code of Re tice. AN ACT explaining, defining and regulating the effect and application of, and otherwise relating to, the act passed at this session of the Legislature, entitled "An act relating to courts, officers of justice, and civil proceedings." Passed June 2, 1876; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: SECTION 1. The act, passed at this session of the Legislature, entimedial Jus- tled "An act relating to courts, officers of justice, and civil proceedings," constitutes a portion of the new revision of the statutes; and may be styled, in any act of the Legislature, or proceeding in a court of justice, or whenever it is otherwise referred to as "The Code of Remedial Justice." Constitu- "Superior "Man- "Judge." "Clerk." § 2. In construing that act, the following rules must be observed, except where a contrary intent is expressly declared in the provision to be construed, or plainly apparent from the context thereof: 1. The "superior city courts" are, collectively, the court of common pleas for the city and county of New York, the superior court of the city of New York, the superior court of Buffalo, and the city court of Brooklyn. 2. The word, "mandate," includes a writ, process, or other written direction issued pursuant to law, out of a court, or made pursuant to law, by a court, or a judge thereof, or by a person acting as a judicial officer, and commanding a court, board or other body, or an officer, or other person, named or otherwise designated therein, to do, or to refrain from doing, an act therein specified. 3. The word, "judge," includes a justice, surrogate, recorder or other judicial officer, authorized or required to act, or prohibited from acting in the matter or thing referred to, in the provision in which that word is used. 4. The word, "clerk," signifies the clerk of the court, wherein the action or special proceeding is brought, or wherein, or by whose authority, the act is to be done, which is referred to in the provision in which it is used. If the action or special proceeding is brought, or the act is to be done, in or by the authority of the Supreme Court, it signifies the clerk of the county where the action or special proceeding is triable, or the act is to be done. 5. The word "report," when used in connection with a trial, or other "Report.” inquiry, or a judgment, means a referee's report; and the word, "decision," when used in the same connection, means the decision of the court upon a hearing, or the trial of an issue, before the court, without a jury. 6. An "action of ejectment" is an action to recover the possession of "Action some specific real property. of eject ment." itor's ac 7. A"judgment creditor's action" is an action brought by a judg- “Judgment creditor, pursuant to the provisions of sections thirty-eight and ment credthirty-nine of title two of chapter one of part three of the Revised Statutes, or otherwise to aid in the collection of a judgment for a sum of money, or directing the payment of a sum of money. 8. A "personal injury "includes libel, slander, criminal conversation, "Personal seduction, and malicious prosecution; also, an assault, battery, false injury." imprisonment, or other actionable injury to the person of the plaintiff, or his or her wife, husband, child, or servant. 9. An "injury to property" is an actionable act, whereby the estate "Injury to of another is lessened, other than a personal injury, or the breach of a contract. property." plevy." 10. Personal property taken by a sheriff, in an action to recover the “Requisipossession thereof, pursuant to the plaintiff's claim of the immediate tion to redelivery thereof, is said to be "replevied"; and the indorsement in writing, upon the affidavit, in behalf of the plaintiff, requiring the sheriff to take the property from the defendant, and deliver it to the plaintiff, is styled "a requisition to replevy." Such a requisition is deemed to be the mandate of the court, in which the action is brought. of a war 11. A warrant of attachment is said to be annulled when the action, Annulment in which it was granted, abates or is discontinued; or a final judgment rant of atrendered therein in favor of the plaintiff, is fully paid; or a final tachment. judgment is rendered therein in favor of the defendant. But, in the latter case, a stay of proceedings suspends the effect of the annulment, the reversal or vacating of the judgment revives the warrant. ment cred 12. The term, "judgment creditor," signifies the person who is enti- "Judgtled to collect, or otherwise enforce, for his own immediate benefit, a itor. judgment for a sum of money or directing the payment of a sum of money. 13. The words, "lunacy," and "lunatic," embrace every description "Lunatic." of unsoundness of mind, except idiocy. 14. A "distinct parcel" of real property is a part of the property, "Distinct which is or may be set off by boundary lines, as distinguished from an parcel.' uncertain or undivided share or interest therein. ry." 15.. The word, "territory," when applied to a portion of the United "TerritoStates, without the State, signifies a portion thereof where an organized territorial government exists, and includes the District of Columbia. 16. A "domestic corporation" is a corporation created by or under “Domesthe laws of the State. A "foreign corporation" is a corporation crea- "foreign ted by or under other laws. tic" and corporations." 17. The term, "action for dower," includes all proceedings, author- "Action ized by the existing laws, to be taken, by or in behalf of a widow, for fordower.” |