Page images

elects to end the reference. In such a case, the action must thence forth proceed, as if the reference had not been directed ; and the referee is not entitled to any fees.”

($ 1335.) Section thirteen hundred and thirty-five is amended so that it will read as follows:

"$ 1335. It is not necessary that the undertaking should be ap- Undertakproved; but the attorney for the respondent may, within ten days hoe bed after a service of a copy of the undertaking, with notice of the filing proved. thereof, serve upon the attorney for the appellant, a written notice that he excepts to the sufficiency of the sureties. Within ten days there- When surafter, the sureties, or other sureties in a new undertaking to the same suber must effect, must justify before a judge of the court below or a county judge. etc. At least five days' notice of the justification must be given; in every other respect the provisions of sections five hundred and serenty-eight, five hundred and seventy-nine and five hundred and eighty of this act apply to the justification. If the judge finds the sureties sufficient he must indorse his allowance of them upon the undertaking, or a copy thereof; and a notice of the allowance must be served upon the attorney for the exceptant. The effect of a failure so to justify, and to procure an allowance, is the same, as if the undertaking had not been given.”

§ 2. This act shall take cffect immediately. But the amendment when act made by this act to section one thousand and nineteen shall not apply to a reference made before this act takes effect; nor shall any amendment, made by this act, invalidate or impair the effect of any proceeding heretofore taken.

to take ellect.

CHAP 898.

AN ACT to amend the Code of Civil Procedure.

PASSED July 1, 1882 ; three-fifths being present. The People of the State of Nero York, represented in Senate and Assembly, do enact as follows:

SECTION 1. Section two thousand six hundred and sixty-seven, of the code of Civil Procedure is hereby amended so to read as follows :

$ 2667. A person appointed an administrator must, before letters are Adminisissued to him, besides filing his official oath, execute to the people of trator's the state, and file with the surrogate, the joint and several bond of oath. himself and two or more sureties, in a penalty fixed by the surrogate, not less than twice the value of the personal property of which the decedent died possessed, and of the probable amount to be recovered by reason of any right of action granted to an executor or administrator by special provision of law. The sum to be fixed as the amount Penalty or. of the penalty must be ascertained by the surrogate, by the examination, upon oath, of the applicant or any other person, or otherwise, as the surrogate thinks proper. The bond must be conditioned that the Condition. administrator will faithfully discharge the trust reposed in him as such, and obey all lawful decrees and orders of the surrogate's court touching the administration of the estate committed to him. But where a right of action is granted to an executor or administrator by special provision of law if it appears to be impracticable to give a bond sufficient to cover the probable amount to be recovered, the surrogate may in his discretion accept modified security and issue letters limited to the prosecution of such action but restraining the executor or ad

case next of kin

ministrator from a compromise of the action and the enforcement of

any judgment recovered therein until the further order of the surroPenalty of gate on additional further satisfactory security. In cases where all bond in

the next of kin to the intestate consent thereto, the penalty of the

bond required to be given shall not exceed twice the amount of the consent

claims of creditors against the estate presented to the surrogate, pursuant to a notice to be published twice a week for four weeks in the state paper, and in two newspapers published in the city of New York, and once a week for four weeks in two newspapers published in the county where the intestate usually resided, and in the county where he died, reciting an ivtention to apply for letters under this provision, and notifying creditors to present their claims to the surrogate on or before a day to be fixed in such notice, which shall be at least thirty days after the first publication thereof; but no bonds so given shall be for a less sum than five thousand dollars; and such bond may be increased by order of the surrogate for cause shown. Pending such application no temporary administrator shall be appointed except ou petition of such next of kin.

8 2. This act shall take effect immediately.

CHAP 899.

AN ACT to amend an act entitled "An act supplemental to

the Code of Civil Procedure," passed May sixth, eighteen hundred and eighty.

PASSED July 1, 1882 ; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows :

SECTION 1. The following sections, added to the Code of Civil Procedure by the act entitled “ An act supplemental to the Code of Civil Procedure," passed May sixth, eighteen hundred and eighty, are hereby amended as follows :

($ 1501.) Section fifteen hundred and one, so that it will read as

follows: Grantee "g 1501. Such an action may be maintained by a grantee, his heir, etc., of Lands held or devisee, in the name of the grantor, or his heir, where the conveyadversely ance, under which he claims, is void because the property conveyed

was held adversely to the grantor. The plaintiff must be allowed to prove the facts to bring the case within this section. In such an action, a judgment against the plaintiff shall not award costs to the defendant; but where the defendant is entitled to costs, as prescribed in section three thousand two hundred and twenty-nine of this act, they may be taxed and the person who maintained the action in the plaintiff's name may be compelled to pay the same us prescribed in section three thousand two hundred and forty-seven of this act."

($ 1788.) Section seventeen hundred and eighty-eight, so that it will

read as follows: Receiver “$ 1788. In such an action, the court may also, at any stage thereof, puilted. P- appoint one or more receivers of the property of the corporation. A

receiver, so appointed, before final judgment is a temporary receiver, until final judgment is entered. A temporary receiver has power to collect and receive the debts, demands, and other property of the corporation; to preserve the property, and the proceeds of the debts and

tain aution.

demands collected ; to sell or otherwise dispose of the property as directed by the court; to collect, receive and preserve the proceeds thereof; and to maintain any action or special proceeding for either of those purposes. He must qualify as prescribed by law for the qual- Must ification of a permanent receiver. Unless additional powers are powers of. specially conferred upon him, as prescribed in the next section, a temporary receiver has only the powers specified in this section, and those which are incidental to the exercise thereof. A receiver appointed by or pursuant to a final judgment in the action, or a temporary receiver who is continued by the final judgment, is a permanent receiver, and has all the powers and authority conferred, and is subject to all the duties and liabilities imposed upon a receiver appointed* the voluntary dissolution of a corporation."

(8 1822.) Section one thousand eight hundred and twenty-two, 80 that it will read as follows:

1822. Where an executor or administrator disputes or rejects a Limitation claim against the estate of the decedent, exhibited to him either before of action or after the commencement of the publication of a notice requiring ed claims. the presentation of claims as prescribed by law, unless the claim is referred, as prescribed by law, the claimant must commence an action, for the recovery thereof, against the executor or administrator, within six months after the dispute or rejection, or, if no part of the debt is theu due, within six months after a part thereof becomes due ; in default whereof, he, and all persons claiming under him, are forever barred from maintaining such an action thereupon, and from every other remedy to enforce payment thereof, out of the decedent's property.”

$ (2244) Section two thousand two hundred and forty-four, so that it will read as follows:

" $ 2244. At the time when the precept is returnable, without waiting Answer. as prescribed in an action before a justice of the peace, or in a district when may court of the city of New York, the person to whom it is directed, or his landlord, or any person in possession or claiming possession of the premises, or a part thereof, may file, with the judge or justice who issued the precept, or with the clerk of the court, a written answer, verified in like manner as a verified answer in an action in the supreme court, denying, generally, the allegations, or specifically any material allegation of the petition.”

(3 2250.) Section twenty-two hundred and fifty, so that it will read as follows:

$ 2250. Costs, when allowed, and the fees of officers, except where Costs. a fee is specially given in chapter twenty-one of this act, must be at the rate allowed by law in an action in a justice's court, and are limited in like manner; unless the application is founded upon an allegation of forcible entry or forcible holding out; in which case, the judge or justice may award to the successful party a fixed sum as costs, not exceeding fifty dollars, in addition to his disbursements. If the final order is made by a county judge, or a special county judge, or by a mayor or recorder, an execution to collect the costs may be issued thereupon as if it was a judgment of a justice of the peace of the same city or county ; and for that purpose the officer takes the place of a justice of the peace. In every other case an execution may be issued to collect the costs awarded thereby as if the final order

* Word “upon "left out of er grossed bill.


By whom action

may be


was a judgment, rendered in the court, of which the judge or justice is the presiding officer,"

(ş 2251.) Section twenty-two hundred and fifty-one, so that it will read as follows:

“Ş 2251. Where the final order is in favor of the petitioner, the of remov- judge or justice must thereupon issue a warrant, under his hand, di

rected to the sheriff of the county or to any constable or marshal of the city in which the property, or a portion thereof, is situated, or if it is not situated in a city, to any constable of any town in the county, describing the property and commanding the officer to remove all per-. sons therefrom; and also, except where the case is within section two thousand two hundred and thirty-seven of this act, to put the petitioner into the full possession thereof."

(S 2346.) Section twenty-three hundred and forty-six, so that it will read as follows:

"§ 2346. An action may be maintained, in a case specified in the last

section, by a person entitled to the conveyance; and also in a case speinaintain- cificd in subdivision second of that section, by the executor or adminis

trator of the person who made the contract, or of a person who died seized or possessed of the real property, or interest in real property, or by an heir or devisee of either of those persons, to whom the real property has descended, or was devised. The action may be maintained by the committee of the lunatic or other incompetent person; but in that case the court must appoint a special guardian for the incompetent person, as required by law, where an infant is defendant, and the proceedings are the same as in a like action against an infant."

($ 2397.) Section two thousand three hundred and ninety-seven, so

that it will read as follows: Matters "$ 2397. The matters required to be contained in any or all of the

affidavits specified in the last section, may be contained in one affidavit

where the same person deposes with respect to them. A printed copy affidavit.

of the notice of sale must be annexed to each affidavit; and a printed copy of each notice of postponement must be annexed to the affidavit of publication, and to the affidavit of sale. But one copy of the notice suffices for two or more affidavits, where they all refer to it, and are annexed to each other, and filed and recorded together."

($ 2409.) Section two thousand four hundred and nine, so that it will

read as follows : What pro

"S 2409. This title does not affect any provision of law, inconsistent visions of therewith, especially relating to the foreclosure of mortgages to the title does people of the state, or to the commissioners for loaning certain

moneys of the United States.”

($ 2525.) Section twenty-five hundred and twenty-five, so that it will read as follows:

"$ 2525. Where service is made by delivering a copy of the citation vice out of without the state, pursuant to an order made as prescribed in the last

section, it must be made, if within the United States, at least thirty days, if without the United States at least forty days, before the return day of the citation. Proof of publication, deposit, or delivery may be made as prescribed in section four hundred and forty-four of this act.”

($ 2537.) Section two thousand five hundred and thirty-seven, so that

it will read as follows: Money, “8 25:37. Where a statute requires the payment of money into the baiment Burrogate's court, or the deposit of a security, for the payment of

money, with the surrogate, the same must be paid to or deposited

may all be contained

in one

not alect.

When and

state is made.


with the county treasurer of the county, to the credit of the fund, or of the estate, or of the special proceeding; unless the statute contains special directions for another disposition thereof. Each security, so deposited with the county treasurer, must be held and disposed of by him, subject to the direction of the surrogate's court; except

that he must, unless otherwise so directed, collect the principal and . interest secured thereby. All money collected by, or paid to the

county treasurer, as prescribed by this section, must be held, managed, invested and disposed of by him, in like manner as money paid into the supreme court in an action pending therein. The regulations, contained in the general rules of practice, as specified in section seven hundred and forty-four of this act, and the provisions of title third of chapter eighth of this act, apply to money paid to and securities deposited with the county treasurer, as prescribed in this section ; except that the surrogate's court exercises, with respect thereto, or with respect to security, in which any of the money has been invested, or upon which it has been loaned, the power and authority conferred upon the supreme court by section seven hundred and forty-seven of this act.”

(3 2578.) Section twenty-five hundred and seventy-eight, so that it will read as follows :

"§ 2578. Notice of appeal by an executor, administrator, testa- Notice of mentary trustee, guardian, or other person appointed by the surro- ano esale gate's court, from a decree directing him to pay or distribute money, stay proor to deposit money in a bank or trust company, or to deliver prop- unless erty; or by an executor or administrator from an order granting leave undertakto issue an execution against him, as prescribed in section eighteen given. hundred and twenty-five of this act, does not stay the execution of the decree appealed from unless the appellant gives an undertaking with at least two sureties, in a sum therein specified, to the effect that if the decree or order, or any part thereof, is affirmed, or the appeal is dismissed, the appellant will pay all costs and damages, which may be awarded against him upon the appeal, and will pay the sum so directed to be paid or collected, or as the case requires will deposit or distribute the money or deliver the property, so directed to be deposited, distributed, or delivered, or the part thereof as to which the decree or order is affirmed."

(2619.) Section twenty-six hundred and nineteen, so that it will read as follows:

§ 2619. The death, absence from the state, lunacy, or other in- Proof of competency of a witness, required to be examined as prescribed in this death, etc: or the last section, or proof that such witness cannot, after due dili- to be gence, be found within the state or elsewhere, must be shown by affidavit. affidavit, or other competent evidence, to the satisfaction of the surrogate, before dispensing with his testimony. Where a witness, being within the state, is disabled from attending by reason of age, sickness or infirmity, his disability must be shown in like manner; and in that case, the testimony of the witness, where it is required, and he is able to testify, must be taken in the manner, prescribed by law, and produced before the surrogate as part of the proofs.

(ş 2626.) Section twenty-six hundred and twenty-six, so that it will read as follows:

"S 2626. A decree admitting to probate a will of personal property Decree made as prescribed in this article, is conclusive, as an adjudication, sive. upon all the questions determined by the surrogate pursuant to this article, until it is reversed upon appeal, or revoked by the surrogate ;

« PreviousContinue »