ing upon a person or persons not exceeding three, and a reference shall be ordered to him or them, and to no other persons. And if such parties do not agree, the court shall appoint one or more referees, not more than three, who shall be free from exception. And no person shall be appointed referee to whom all parties in the action shall object, except in actions for divorce. And no justice or judge of any court shall sit as a referee in any action pending in the court of which he is judge, and not already referred. Unless the court shall otherwise order, or the parties otherwise stipulate, the referee or referees shall make and deliver a report within sixty days from the time the action shall be finally submitted, and in default thereof the referee or referees shall not be entitled to receive any fees, and the action shall proceed as if no reference had been ordered."

Ante, vol. 5, p. 77, 17 Ab., 375.

amended as tion of

debtor.

Section two hundred and ninety-two is hereby amended by Section 292 adding thereto the following: "Nor shall he be excused from to examinaanswering any question on the ground that he has, before the Judgment examination, executed any conveyance, assignment or transfer of his property for any purpose, but his answer shall not be used as evidence against him in any criminal proceeding or prosecution."

Ante, vol. 5, p. 83.

amended as

mentary

ings.

Section two hundred and ninety-four is hereby amended by Section 204 adding thereto the following words: "The proceedings men- to suppletioned in this section, and in section two hundred and ninety- proceed two, may be taken upon the return of an execution unsatisfied, issued upon a judgment recovered in an action against joint debtors, in which some of the defendants have not been served with the summons by which said action was commenced, so far as relates to the joint property of such debtors; and all actions by creditors, to obtain satisfaction of judgments out of the property of joint debtors, are maintainable in the like manner and to the like effect. These provisions shall apply to all proceedings and actions now pending, and not actually terminated by any final judgment or decree."

Ante, vol. 5, p. 85.

Section two hundred and ninety-eight is hereby amended Section 298 by adding thereto the following:

"But before he shall be vested with any real property of such judgment debtor, a certified copy of said order shall also be filed and recorded in the office of the clerk of the county in which any real estate of such judgment debtor sought to be affected by such order is situated, and also in the office of the clerk of the county in which such judgment debtor resides."

Ante, vol. 5, p. 85.

amended as to receiver.

amended as

Section three hundred and seven is hereby amended by Section 307 adding to subdivision three thereof the following words: to cost.

Section 328 amended as

"And for attending the examination of a party before trial, ten dollars; for making and serving a case, twenty dollars; and for making and serving amendments thereto, ten dollars." Ante, vol. 5, p. 89.

Section three hundred and twenty-eight is hereby amended to appeals. So as to read as follows:

Section 335 amended as

to stay of execution on appeal.

"If the appellant shall not, within twenty days after his appeal is perfected, cause a certified copy of the notice of appeal and of the judgment roll, or, if the appeal be from an order or any part thereof, a certified copy of such order and the papers upon which the order was granted, to be transmitted to the appellate court by the clerk with whom the notice of appeal is filed, the respondent may cause such certified copy to be transmitted by such clerk to the appellate court and recover the expenses thereof, as a disbursement on such appeal in case the judgment or order appealed from shall be in whole or in part affirmed, and this provision shall apply to all appeals heretofore taken where the appeal has not been dismissed in the manner provided by the rules of the appellate court."

Ante, vol. 5, p. 94.

Section three hundred and thirty-five is hereby amended so as to read as follows:

"If the appeal be from a judgment directing the payment of money, it shall not stay the execution of the judgment, unless a written undertaking be executed on the part of the appellant, by at least two sureties, to the effect, that if the judgment appealed from or any part thereof be affirmed, or the appeal be dismissed, the appellant will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed, if it be affirmed only in part, and all damages which shall be awarded against the appellant upon the appeal. Whenever it shall be made satisactorily to appear to the court that since the execution of the undertaking the sureties have become insolvent, the court may, by rule or order, require the appellant to execute, file and serve a new undertaking as above; and in case of neglect to execute such undertaking within twenty days after the service of a copy of the rule or order requiring such new undertaking, the appeal may, on motion to the court, be dismissed with costs. Whenever it shall be necessary for a party to any action or proceeding to give a bond or an undertaking, with surety or sureties, he may in lieu thereof deposit with the officer or into court, as the case may require, money, to the amount for which such bond or undertaking is to be given. The court in which such action or proceeding is pending may direct what disposition shall be made of such money, pending the action or proceeding. In any case where, by this section, the money is to be deposited with an officer, a judge of the court, at special term or at chambers, upon

the application of either party, may, before such deposit is made, order it to be deposited in court instead of with such officer; and a deposit made pursuant to such order, shall be of the same effect as if made with such officer."

Ante, vol. 5, p. 96.

Section three hundred and fifty-two is hereby amended by Section 352 adding thereto as follows:

"And when the appeal is to the superior court of, Buffalo, in the cases in which by the terms of this section a new trial may be had, such new trial shall be had in the said superior court."

Ante, vol. 5, p. 101.

amended as to new trial

in superior court of

Buffalo.

amended as

on appeal.

Section three hundred and fifty-five is hereby amended so Section 35 as to read as follows: "When by the terms of section three to security hundred and fifty-two, the appellant is entitled to a new trial in the appellate court, he shall at the time of taking his appeal, and in all other cases, if he desires a stay of execution of the judgment, give security as provided in the next sec

tion."

Ante, vol. 5, p. 103.

amended as

now pend

Section three hundred and sixty-four is hereby amended by Section 264 adding thereto the following: "And the provisions of this to appeals chapter for a new trial shall apply as well as to appeals hereto-ing. fore taken and now pending, as those hereafter to be brought."

Ante, vol. 5, p. 104.

amended as to offer of

on appeal,

costs.

Section three hundred and seventy-one is hereby amended Section 371 by striking out the last two sentences of the first paragraph judgment, and inserting in place thereof the following: "If such offer and the be not made, and the judgment in the appellate court be more favorable to the appellant than the judgment in the court below, or if such offer be made and not accepted, and the judgment of the appellate court be more favorable to the appellant than the offer of the respondent, the appellant shall recover costs. If the offer be made and accepted by the appellant, the appellant shall recover all his disbursements on appeal, and all his costs, in the court below. But the appellant shall not recover costs except as provided in this chapter. The respondent shall be entitled to recover costs where the appellant is not."

Ante, vol. 5, p. 106.

to examina

Section three hundred and ninety-five is hereby amended amended as so as to read as follows: "A party examined by an adverse tion of adparty, as in this chapter provided, may be examined on his verse party. own behalf, subject to the same rules of examination as other witnesses. But if he testify to any new matter, not responsive to the inquiries put to him by the adverse party, or necessary to explain or qualify his answers thereto, or discharge when his answers would charge himself, such adverse party may offer himself as a witness on his own behalf in respect to

Section 399 amended as

such new matter, subject to the same rules of examination as other witnesses, and shall be so received."

Ante, vol. 5, p. 112; 30 How., P.R., 61.

Section three hundred and ninety-nine is hereby amended to testimony by adding thereto the following: "But if the testimony of a

of parties.

Section 37, article 2,

title 2, of

party to the action or proceeding has been taken, and he shall afterwards die, and after his death the testimony so taken shall be used upon any trial or hearing, in behalf of his executors, administrators, heirs-at-law, next of kin, or assignees, the other party or the assignor of a thing in action, shall be a competent witness, as to any and all matters to which the testimony so taken relates, notwithstanding anything in this section contained to the contrary thereof."

Ante, vol. 5, p. 113.

$ 2. Section thirty-seven, article second, title second, chapchap. 1, and ter first, part third, of the Revised Statutes in relation to the jurisdiction of the court of chancery, is hereby repealed.

part 3, of

Revised

Statutes

repealed.

amended as

Ante, vol. 2, p. 180.

S3. Section four hundred and seventy-one of the Code of Procedure is hereby amended by adding thereto the followSection 471 ing: "In actions or proceedings by maudamus, amendments to manda of any mistakes in the process, pleadings or proceedings therein may be allowed, and shall be made in conformity to the provisions of chapter six, title six, of the second part of the Code of Procedure."

mus.

Chapter 460 of Laws

of 1862,

amended.

Ante, vol. 5, p. 128.

S 4. The four hundred and sixtieth chapter of the Laws of eighteen hundred and sixty-two, is hereby amended by striking out the characters and figures therein as follows: "S 28, $29, $ 30."

Ante, vol. 5, p. 137.

66

One and

a half mill

CHAP. 393.

AN ACT to provide means for the support of government; to authorize a tax of two mills on a dollar for purposes of the general fund; three-fourths of a mill for maintenance of common schools; three-eighths of a mill for the interest and redemption of state indebtedness, and two mills for payment of bounties to volunteers, and for other purposes.

PASSED May 4, 1863; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

S1. There shall be imposed for the fiscal year commencing tax imposed on the first day of October, eighteen hundred and sixty-three, a state tax of one mill and one-half of one mill on each dol

lar of the valuation of real and personal property in this state subject to taxation, which tax shall be assessed, levied and collected on and by the annual assessment and collection of taxes for that year, in the manner prescribed by law, and shall be paid by the several county treasurers into the treasury of this state, to be held by the treasurer for application to the purposes of the general fund, and for the payment of those claims and demands which shall constitute a lawful charge upon that fund.

tax imposed

$2. There shall also be imposed for the same fiscal year, a Half mill state tax of one-half of one mill on each dollar of the valuation of real and personal property in this state subject to taxation, which tax shall be assessed, levied and collected, as aforesaid, and shall be paid by the several county treasurers into the treasury of this state, to be held by the treasurer for application to the purposes of the general fund, to pay those claims and demands which have been constituted a lawful charge upon that fund in pursuance of acts passed in the year eighteen hundred and sixty-two.

fourths of a

posed.

3. The state tax of three-fourths of one mill on each dol- Threelar of valuation of real and personal property in this state mill tax imsubject to taxation, shall be assessed, levied and collected for the support of common schools, pursuant to chapter one hundred and eighty of the Laws of eighteen hundred and fiftysix, and shall be paid by the county treasurers into the treasury of this state, to be held by the treasurer for application to the maintenance of common schools throughout this state; and the further tax of three-eighths of one mill on each dollar of valuation of real and personal property subject to taxation, shall be assessed, levied and, collected, pursuant to chapter two hundred and seventy-one of the laws of eighteen hundred and fifty-nine, to pay the interest and redeem the principal of the state debt of two and a half million of dollars, then legalized, and shall be paid into the treasury of this state, to be held by the treasurer for the payment of interest and redemption of principal of the aforesaid debt as provided in said act.

imposed.

4. There shall also be imposed for the fiscal year com-Two mills mencing on the first day of October, eighteen hundred and sixty-three, a state tax of two mills, or such part of that amount as in the judgment of the comptroller may be necessary, on each dollar of the valuation of real and personal property in this state subject to taxation, which tax shall be assessed, levied and collected in the same manner as the tax for the general fund, and shall be paid by the several county treasurers into the treasury of this state, to be held by the treasurer for application to the payment of bounties to volunteers into the service of the government of the United States, or of appropriations to the families of volunteers, or to any other persons or families of persons who may be conscribed and employed in the army of the United States.