ART. 3. § 796. A notice or other paper in an action, may be served on a party Paper may or an attorney, either by delivering it to him personally, or in the man- be served ner prescribed in the next section. personally. service. § 797. Where the service is not personal, it may be made as follows: Other 1. Upon a party or an attorney, through the post-office, by deposit- modes of ing the paper, properly inclosed in a post-paid wrapper, in the postoffice of the party or the attorney serving it, directed to the person to be served, at the address, within the State, designated by him for that purpose, upon the preceding papers in the action; or, where he has not made such a designation, at his place of residence, or the place where he keeps an office, according to the best information which can conveniently be obtained concerning the same. 2. Upon an attorney, during his absence from his office, by leaving the paper with his partner or clerk therein, or with a person having charge thereof. 3. Upon an attorney, if there is no person in charge of his office, and the service is made between six o'clock in the morning and nine o'clock in the evening, either by leaving it, in a conspicuous place in his office, or by depositing it, inclosed in a sealed wrapper, directed to him, in his office letter-box; or, if the office is not open, so as to admit of leaving the paper therein, and there is no office letter-box, by leaving it at his residence, within the State, with a person of suitable age and discretion. 4. Upon a party, by leaving the paper at his residence within the State, between six o'clock in the morning and nine o'clock in the evening, with a person of suitable age and discretion. time when the post § 798. Where it is prescribed in this act, or in the general rules of Double practice, that a notice must be given, or a paper must be served, within served a specified time, before an act is to be done; or that the adverse party through has a specified time, after notice or service, within which to do an act; onice. if service is made through the post-office, the time so required or allowed is double the time specified; except that service of notice of trial may be made, through the post-office, not less than sixteen days before the day of trial, including the day of service. per to be § 799. Where a party has appeared, a notice or other paper, required When pa to be served in an action, must be served upon his attorney. If a served on defendant has not appeared, service of a notice or other paper, in the attorney ordinary proceedings in the action, need not be made upon him, unless vice not rehe is actually confined in jail, for want of bail. when ser quired. § 800. Where a party to an action, who has appeared in person, re- When sersides without the State, or his residence cannot, with reasonable dili- vice may gence, be ascertained, and he has not designated an address, within clerk, for the State, upon the preceding papers, service of a paper upon him may dent. be made, by serving it on the clerk. be made on non-resi branch § 801. In the city of New-York, where a paper is served, or a return service is made, through the post-office, the deposit of the package in a branch through post-office has the same effect, as a deposit in the general or principal post office post-office of that city. in New York city. This article a not appli § 802. This article does not apply to the service of a summons, or other process; or of a paper to bring a party into contempt; or to case where the mode of service is specially prescribed by law. cable to service of summons, etc. TITLE 6. Court may direct dis ARTICLE FOURTH. DISCOVERY OF BOOKS AND PAPERS. SECTION 803. Court may direct discovery of books, etc. 805. Petition for discovery, and order thereupon. 807. Proceedings upon the return of the order. 809. Effect of papers, etc., produced. § 803. A court of record, other than a justices' court in a city, has covery of power to compel a party to an action pending therein, to produce and books, etc. discover, or to give to the other party, an inspection and copy, or permission to take a copy, of a book, document, or other paper, in his possession or under his control, relating to the merits of the action, or of the defence therein. Rules to prescribe the cases, etc. Petition for discovery, § 804. The general rules of practice must prescribe the cases, in which a discovery or inspection may be so compelled, and the proceedings for that purpose, where the same are not prescribed in this act. 805. To entitle a party to procure such a discovery or inspection, and order he must present a petition, praying therefor, and verified by affidavit, thereupon. to the court, or to a judge authorized to make an order in the action; upon which an order may be made, directing the party, against whom the discovery or inspection is sought, to allow it, or, in default thereof, to show cause before the court, at a time and place, and upon a notice, therein specified, why the prayer of the petition should not be granted; and, if necessary or proper, that his proceedings be stayed until the hearing of the application, although the stay exceeds twenty days. Order, when and § 806. An order, made as prescribed in the last section, may be by whom vacated, by the judge who granted it, or by the court, upon satisfactory proof, by affidavit: vacated. Proceed ings upon of the order. 1. That it ought not to have been granted, or that it has been complied with; or, 2. That the party required to make the discovery, or permit the inspection, has not the possession or control of the book, document, or other paper, directed to be produced or inspected. § 807. Upon the return of the order to show cause, the court may the return make such an order, with respect to the discovery or inspection prayed for, as justice requires. Where either is directed, a referee may be appointed by the order, to direct and superintend it; whose certificate, unless set aside by the court, is presumptive, and, except in proceedings for contempt, conclusive evidence, of compliance or non-compliance with the terms of the order. A fixed sum, not exceeding twenty dollars, may be added to the costs of the motion, for the fees of the referee. Penalty for disobedi ence. § 808. Where an order, made as prescribed in the last section, directs a discovery or inspection, the party in whose behalf it was made, may, upon proof, by affidavit, that the adverse party has failed to obey it, and upon notice to him, apply to the court, for an order to punish him for the failure. Upon the hearing of the application, the court may, upon the payment of such a sum, for the expenses of the applicant, as the court fixes, and upon compliance with such other terms, as it deems Just to impose, permit the party in default to comply with the order for a discovery and inspection; and, for that purpose, it may direct that the application to punish him stand over to a future time. Upon the final hearing of the application to punish the party in default, the court, in a proper case, may direct that his complaint be dismissed, or his answer or reply be stricken out, and that judgment be rendered accordingly; or it may make an order, striking out one or more causes of action, defences, counterclaims, or replies, interposed by him; or that he be debarred from maintaining a particular claim or defence, in relation to which the discovery or inspection was sought. Where the party has failed to obey an order, allowing an inspection by the adverse party, and requiring him to furnish a copy, or permit a copy to be taken, the court may also direct that the book, document, or other paper, be excluded from being given in evidence; or it may punish the party for a contempt; or both. ART. 5. papers, § 809. A book, document, or other paper, produced under an order, Effect of made as prescribed in this article, has the same effect, when used by etc., pro the party requiring it, as if it was produced upon notice, according to duced. the practice of the court. ARTICLE FIFTH. GENERAL REGULATIONS RESPECTING BONDS AND UNDERTAKINGS. SECTION 810. Bonds, undertakings, etc., must be acknowledged. 811. Party need not join with his sureties; when one surety is sufficient. 813. When several sureties may justify, each in a smaller sum. 814. Bonds, etc., to the people or a public officer for the benefit of a 815. Bonds, etc., not affected by change of parties. dertakings, § 810. A bond or undertaking, given in an action or special pro- Bonds, unceeding, as prescribed in this act, must be acknowledged or proved, etc., must and certified, in like manner as a deed to be recorded. be acknowledged. not join § 811. Where a provision of this act requires a bond or undertaking, Party need with sureties, to be given by, or in behalf of, a party or other person, with his he need not join with the sureties in the execution thereof, unless the sureties; provision requires him to execute the same; and the execution thereof when one by one surety is sufficient, although the word, "sureties," is used, sufficient. unless the provision expressly requires two or more sureties. surety is dertaking; approval § 812. A bond or undertaking, executed by a surety or sureties, as Form of prescribed in this act, must, where two or more persons execute it, be bond or unjoint and several in form; and, except as otherwise expressly pre- affidavit of scribed by law, it must be accompanied with the affidavit of each sureties, surety, subjoined thereto, to the effect, that he is a resident of, and a by court or householder or a freeholder within, the State, and is worth the penalty Judge. of the bond, or twice the sum specified in the undertaking, over all the debts and liabilities, which he owes or has incurred, and exclusive of property exempt by law from levy and sale under an execution. A bond or undertaking given by a party, without a surety, must be TITLE 6. When sev eral sure. ties may justify, each in a smaller sum. Bonds, suitor. accompanied by his affidavit, to the same effect. The bond or undertaking, except as otherwise expressly prescribed by law, must be approved by the court, before which the proceeding is taken, or a judge thereof, or the judge, before whom the proceeding is taken. The approval must be indorsed upon the bond or undertaking. § 813. But where the penalty of the bond, or twice the sum specified in the undertaking, is twenty thousand dollars, or upwards, the court or judge may, in its or his discretion, allow the sum, in which a surety is required to justify, to be made up by the justification of two or more sureties, each in a smaller sum. But, in that case, a surety cannot justify in a sum less than ten thousand dollars; and, where two or more sureties are required by law to justify, the same person cannot so contribute to make up the sum, for more than one of them. § 814. Where a bond or undertaking has been given. as prescribed etc., to the people or a by law, in the course of an action or special proceeding, to the people public officer for the or to a public officer, for the benefit of a party or other person interbenefit of a ested, and provision is not specially made by law for the prosecution thereof; the party or other person, so interested, may maintain an action in his own name, for a breach of the condition of the bond, or of the terms of the undertaking; upon procuring an order, granting him leave so to do. The order may be made by the court, in which the action is or was pending; or by a superior city court, the marine court of the city of New York, or a county court, if the bond or undertaking was given in a special proceeding, pending before a judge of that court; or, in any other case, by the supreme court. Notice of the application therefor must be given, as directed by the court or judge, to the persons interested in the disposition of the proceeds. Bonds, etc., not af fected by change of parties. Id.; to be filed. § 815. A bond or undertaking, given in an action or special proceeding, as prescribed in this act, continues in force, after the substitution of a new party in place of an original party, or any other change of parties; and has thereafter the same force and effect, as if then given anew, in conformity to the change of parties. § 816. A bond or undertaking, required to be given by this act, must be filed with the clerk of the court; except where, in a special case, a different disposition thereof is directed by the court, or prescribed in this act. Consoli. dating ARTICLE SIXTH. OTHER MATTERS. SECTION 817. Consolidating causes in same court. 818. Id.; in different courts. 819. Id.; by plaintiff. 820. Interpleader by order in certain cases. 821. Dismissal of complaint for neglect to serve summons. 822. Id.; for neglect to proceed. 823. Feigned issues abolished, and order for trial substituted. 824. Summons and pleadings to be filed within ten days after service. 825. Papers in special proceedings; where to be filed. 826. Publication, if no newspaper in county. 827. Special references in certain cases. y 817. Where two or more actions, in favor of the same plaintiff against the same defendant, for causes of action which may be joined, are pending in the same court, the court may, in its discretion, by order, consolidate any or all of them, into one action. ART. 6. causes in same court. different § 818. Where one of the actions is pending in the supreme court, and Id.; in another is pending in another court, the supreme court may, by order, courts. remove to itself the action in the other court, and consolidate it with that in the supreme court. § 819. Where separate actions are commenced against two or more Id.; by Joint and several debtors, in the same court, and for the same cause plaintiff. of action, the plaintiff may, in any stage of the proceedings, consolidate them into one action. in certain § 820. A defendant, against whom an action to recover upon a con- Interplead. tract, or an action of ejectment, or an action to recover a chattel, is er by order pending, may, at any time before answer, upon proof, by affidavit, that cases. a person, not a party to the action, makes a demand against him for the same debt or property, without collusion with him, apply to the court, upon notice to that person, and the adverse party, for an order to substitute that person in his place, and to discharge him from liability to either, on his paying into court the amount of the debt, or delivering possession of the property, or its value, to such person as the court directs. The court may, in its discretion, make such an order. plaint for § 821. Where, in an action against two or more defendants, the plain- Dismissal tiff unreasonably neglects to serve the summons upon one or more of of con them, without whose presence a complete determination of the contro- neglect to versy cannot be had, the court may, in its discretion, upon the applica- mons. tion of a defendant who has appeared in the action, dismiss the complaint as against him, and render judgment accordingly. serve sum § 822. Where the plaintiff unreasonably neglects to proceed in the Id.; for action against the defendant, or one or more defendants against whom neglect to proceed. a separate judgment may be taken, the court may, in its discretion, upon the application of the defendant or defendants, or any of them, against whom he so neglects to proceed, dismiss the complaint as against the moving party or parties, and render judgment accordingly. issues abol trial sub § 823. Feigned issues have been abolished. In a case, where neither Feigned party can, as of right, require a trial by jury of an issue of fact aris- ished, and ing upon the pleadings, or where a question of fact, not in issue upon order for the pleadings, is to be tried, an order for the trial thereof by a jury stituted. may be made, stating, distinctly and plainly, the questions of fact to be tried. Such an order is the only authority necessary for the trial. § 824. The summons, and each pleading in an action, must be filed Summons with the clerk, by the party in whose behalf it is served, within ten ings, to be days after the service thereof. If the party fails so to file it, the adverse tiled within party, on proof of the failure, is entitled, without notice, to an order after serfrom a judge, that it be filed within a time specified in the order, or be deemed abandoned. and plead ten days vice. to be filed. § 825. A return or other paper in a special proceeding, where no Papers in other disposition thereof is prescribed by law, must be filed, and an special proceed. order therein must be entered, with the clerk of the county in which ings, where the special proceeding is taken, if it is before a county officer, or a judge of a court established in a city; if before a justice of the supreme court, with the clerk of a county designated by the justice; or, if no designation is made by him, of a county where one of the parties resides. no news § 826. Where a notice, or other proceeding, is required by law to be Publica published in a newspaper published in a county, and no newspaper is tion, where published therein, or to be published oftener than any newspaper is paper in regularly published therein, the publication may be made in a news- county. paper of an adjoining county, except where special provision is other wise made by law. |