or other disposition of the real property of a decedent has been duly made before that date, in a surrogate's court. 12. So much of chapters nineteenth and twentieth, as relates to the jurisdiction of the several courts therein specified, applies only to an action or special proceeding commenced on or after the first day of September, 1880. 13. In chapter twenty-first, titles first, second and third apply only to an action in one of the courts specified in subdivision fourth of this section. § 3348. Where a provision of this act is made applicable by the last section, to an action or a special proceeding commenced on or after a day therein specified, if, before that date, a summons in an action, or a citation issued from a surrogate's court, has been served upon one or more, but not upon all, of the persons to be served; or an order for the service of a summons as prescribed in article second of title first of chapter fifth of this act has been made; or, in a special proceeding, elsewhere than in a surrogate's court, the petition or other paper, upon which the first order, process, or other mandate may be made or issued, has not been presented, the action or special proceeding is not deemed to have been commenced within the meaning of that section. 3349. Where any provision of this act is made applicable to future proceedings in an action or special proceeding, the proceedings therein, until the provision in question becomes applicable, are governed by, and must be conducted according to the laws in force on the day before the provision takes effect, except as otherwise prescribed in subdivision seventh of the last section but one. § 3350. A jury, for the trial of an indictment or other criminal cause, at a term of a court of record, commencing on or after the twenty-first day of May, 1877, must be procured from the trial jurors selected, drawn, and notified, as prescribed in this act, for the term of the court at which it is triable, including the talesman or additional jurors, procured as prescribed therein; and the same must be tried by the jury so formed. But the statutes remaining unrepealed after the first day of September, 1877, relating to challenges or disqualifications of petit jurors in a criminal cause, or prescribing the cases where talesmen or additional petit jurors must be summoned in a criminal cause, remain unaffected by this act, and are applicable to the proceedings taken as prescribed in this act, and to the trial jurors therein specified. § 3351. This act does not affect any provision of the statutes, remaining unrepealed after the first day of September, 1877, relating to grand jurors or grand juries; except as follows: 1. A fine imposed, after the first day of September, 1877, upon a person drawn as a grand juror, and duly summoned to attend a term of a court of record as a grand juror, as prescribed in those statutes, must be imposed as prescribed in article fourth of title third of chapter tenth of this act; and sections 1073 to 1077 of this act, both inclusive, apply to such a person, as if he had been drawn, and notified to attend, as a trial juror. 2. Where a provision of those statutes refers to the lists of petit jurors, the ballots containing their names, the box or boxes in which those ballots are deposited or contained, the selecting, drawing, summoning, of empanelling of petit jurors, the imposition of a fine upon a petit juror, or the enforcement, reduction, or remission thereof, it is deemed to refer to the same subject, as provided for in this act, in like manner as it refers to those statutes. § 3352. Nothing contained in any provision of this act, other than in chapter fourth, renders ineffectual, or otherwise impairs, any proceeding in an action or a special proceeding, had or taken, pursuant to law, or any other lawful act done, or right, defence, or limitation, lawfully accrued or established, before the provision in question takes effect; unless the contrary is expressly declared in the provision in question. As far as it may be necessary, for the purpose of avoiding such a result, or carrying into effect such a proceeding or other act, or enforcing or protecting such a right, defence, or limitation, the statutes in force on the day before the provision takes effect, are deemed to remain in force, notwithstanding the repeal thereof. 3353. This act does not affect the appointment of a term, or the designation of one or more judges to hold a term, made pursuant to the statutes in force on the thirty-first day of August, 1877, until new terms are appointed, or one or more judges are newly designated, as prescribed in this act. 3354. This act does not create a vacancy in any office or employment, designated or referred to therein, by the title or description thereof, contained in the statutes in force on the day before the provision referring thereto takes effect, or by another title or description; nor does it affect any provision of those statutes, relating to the amount, or the time or the mode of payment, of the compensation of an officer or employee, so designated or referred to, who is in office or employed on that day: except that where the tenure of his office or employment is not prescribed in this act, he may be removed at pleasure by the court, officer, or officers, authorized by this act to appoint a person to discharge the same duties. Until he is removed, or his office or place becomes otherwise vacant, the provisions of this act apply to him, and to the discharge of his duties. The court, officer, or officers, authorized by this act to appoint a person to an office or employment, may from time to time fill a vacancy therein. § 3355. [am'd 1882.] For the purpose of determining the effect of the different provisions of this act with respect to each other, they are deemed to have been enacted simultaneously. For the purpose of determining the effect of this act upon other acts, and the effect of other acts upon this act, chapters fourteen to twenty-two of this act, both inclusive, are deemed to have been enacted on the twelfth day of January, in the year eighteen hundred and eighty; and all acts passed after the last-mentioned date are to have the same effect as if they were passed after those chapters. § 3356. Subject to the qualifications contained in the foregoing sections of this title, this act shall take effect as follows: titles third and fourth, and article first of title fifth of chapter tenth, on the first day of May, in the year 1877; the remainder of chapters first to thirteenth, both inclusive, on the first day of September, in the year 1877; chapters fourteenth to twenty-first, both inclusive, on the first day of September, 1880; and this chapter immediately. INDEX OF FORMS. The numbers refer to the sections of the Code of Civil Procedure.] Writ of certiorari. 2022. Writ of habeas corpus, 2021. Insolvent debtor's affidavit, 2163, 2191. Imprisoned debtor's affidavit, 2204. Juror's oath before justice of the peace, 2998. Witness's oath before justice of the peace, 3000. Constable's oath in justice's court, 3006. Of actions at law and suits in equity are abolished, 3332 [646] INDEX. [The zumbers refer to the sections of the Code of Civil Procedure.} A. ABANDONMENT-of action, 821, 822, of appeal, 1296-1299. if cause of action survives, 755. on death or marriage, 761, 762. by death after verdict, etc. 764. by death of public officer, trustee, etc. 766. of appeal, 1297, 1299. of action of ejectment, 1521. id.; action to be divided, after death of party, when, etc. 1522, 1523. of action by executor or administrator, 1828. action, etc., not to abate on account of change of name of defendant; amend- ABBREVIATIONS-in process, etc. 22. ABSENCE-effect on limitations of actions, 391, 401. ground for service by publication, etc. 435, 438. for attachment, 636. presumption of death, 841. of witness to will must be accounted for, before testimony dispensed with, on id.; proof of bandwriting of testator, when admitted, 2620. testimony taken upon probate of will may be used on hearing for revocation of ABSENTEE-temporary administrator for, 2668. (See ADMINISTRATOR, TEMFO- ACCOUNT-when cause of action accrues on, 386. how pleaded; demand of copy of, 531. discovery and inspection of, 803-809. subpoena duces tecum, 867. reference, 1013. of sale, etc., of real estate of infants, etc. 2361. judicial settlement of," and "intermediate," in surrogate's court, 2514. decree settling, in surrogate's court. 2551. when justice of the peace has jurisdiction in action on, 2863. pleading in action on account in justice's court, 2941. party may be compelled to exhibit, in such court, 2942. judgment in justice's court when accounts exceed $400, 2950. action in justices' courts of Alb ny and Troy, when accounts exceed $100, 3223. id.; as tɔ justice of the peace in Brooklyn, 3118. [i] ACCOUNT-continued. id.; as to clerks of certain courts ef New York and Brooklyn, 3284. id.; as to certain county clerks and registers, 3285. what fees are to be accounted for by officer, 3286. ACCOUNT OF TESTAMENTARY TRUSTEE-intermediate accounting by, 2802 judicial settlement of, how compelled, 2807. id.; who may apply therefor; proceedings thereupon, 2808, 2809. id.; on petition of such trustee, 2810. id.; certain provisions as to settlement of, 2811. ACCOUNT OF GUARDIAN--settlement of, may be ailowed; voluntary, 2830 to be made and filed yearly in surrogate's office, 2842. affidavit to be annexed thereto, 2843. must be annually examined by surrogate, 2844. proceedings when such account, etc., defective, 2845. when judicial settlement of, may be compelled, 2847. when guardian may compel settlement of, 2849. citation and proceedings thereupon, 2850. certain provisions relative to, 2850. appointed by will or deed, intermediate, may be required, 2855. affidavit thereto; examination thereof; proceedings when defective, 2858. proceedings thereon, same as when guardian appointed by surrogate, 2356. ACCOUNT OF EXECUTOR OR ADMINISTRATOR, SETTLEMENT OF-add by executor or deceased executor, 2606. application for settlement of, on petition of executor, etc. 2689. neglect to appear on citation ground for revocation of letters, 2691. intermediate accounting, when voluntary, 2722. id.; when comp sory, 2723. when surrogate may require settlement of account, 2724, 2725. who may apply for accounting; citation thereupon, 2726. order to account; supplemental citation, 2727. person cited may bring in other parties; proceedings thereupon, 2728. creditor, etc., not cited, may contest, 2731. executor whose letters have been revoked may petition, 2732. affidavit to be annexed to account, 2733. vouchers to be produced; proceedings in case of lost voucher, 2734. account of executor, etc., may at any time be ordered filed, 2735. when compensation not allowed, 2737. one compensation allowed on different letters, 2738. surrogate may determine certain claims; hearing of contest, 2739. effect of the statute of limitations on such claims, 2740. surrogate may allow for property lost, etc. 2741. effect of judicial settlement of account, 2742. decree for payment and distribution, 2743. id.; when specific property may be delivered, 2744. id.; when money may be retained, 2745. id.: share of infant, 2746. legacy, etc., to unknown person; claims thesto, 2747. ACKNOWLEDGMENT-under statute of limitations, 376, 395. when evidence, 935-937. of assignment of judgment, 1262. ACTIONS--not abated by vacancy in judge's office, 25. when deemed commenced, 398-400, 417. |