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§ 78.* 3. If a written complaint is served with the summons a When written answer must be filed; and if the complaint is verified, the ings answer must be verified; provided, however, that in an action where winterbo the amount claimed is one hundred dollars or less, the defendant, when if he appears in person, may answer orally. When a defendant answers orally a statement of the nature and the substance of the answer shall be endorsed upon or annexed to the summons. The address of the defendant and the office and post office address of his attorney, shall be endorsed upon the answer.

$ 2. This act shall take effect immediately.

CHAPTER 622

AN ACT to amend the civil practice act, in relation to physical examination

of females

Became a law April 30, 1935, with the approval of the Governor.

three-fifths being present

Passed,

court may

The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section 1. Section three hundred and six of the civil practice. P: A.,

$ 306, act is hereby amended to read as follows:

amended. § 306. Physical examination. In an action to recover damages When for personal injuries, if the defendant shall present to the court order satisfactory evidence that he is ignorant of the nature and extent physical of the injuries complained of, the court, by order, shall direct that tion. the plaintiff submit to a physical examination by one or more physicians or surgeons to be designated by the court or judge, and such examination shall be had and made under such restrictions and directions as to the court or judge shall seem proper. If the party to be examined shall be a female she shall, if she desire, be entitled to have such examination in the presence of her own personal physician and such relative or other person as the court may direct. The order for such physical examination, upon the application of the defendant, may also direct that the testimony of such party be taken by deposition pursuant to this article.

§ 2. This act shall take effect September first, nineteen hundred Effective thirty-five.

* So in original (section heading evidently omitted).

date.

CHAPTER 623

AN ACT to amend the civil practice act, in relation to the service of process

in certain actions

Became a law April 30, 1935, with the approval of the Governor. Passed,

three-fifths being present

O. P. A., $1 231,

amended,

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Section 1. Sections two hundred and thirty-one, two hundred 233, 236, and thirty-three and two hundred and thirty-five of the civil prac

tice act are hereby amended to read as follows:

§ 231. Manner of making substituted service. The order must direct that the service of the summons be made (1) by leaving a copy thereof, and of the order, if the defendant is a domestic corporation or joint-stock or other unincorporated association, at its principal office or place of business, or if a natural person, at the residence of the defendant, with a person of proper age, if upon reasonable application admittance can be obtained and such person found who will receive it; or (2) if admittance cannot be so obtained nor such person found, by affixing the same to the outer or other door of the defendant's said place of business or office, or of his residence, and by depositing in a post-office another copy thereof, properly inclosed in a postpaid wrapper, addressed to the defendant at its said principal office or place of business, or to him at his place of residence, or (3) in the case of a natural person, upon proof by affidavit that no such residence can be found,

service of the summons may be made in such manner Filing the court may direct. The order for substituted service and the

papers on which it was granted must be filed, service made and proof of service filed within twenty days after the order is granted; otherwise the order becomes inoperative. Such substituted service is complete ten days after proof thereof is filed and the same proceedings may be taken thereupon as if the summons had been

served by publication pursuant to order for that purpose. Who must § 233. Service without the state in lieu of publication. In all service. cases when publication of the summons is ordered, service of the

copy of the summons and complaint and of any accompanying notice required by rules by the delivery thereof to the defendant personally without the state is equivalent to notice by publication and deposit in the post-office. The service must be made by a resident or citizen of the state of New York, or a sheriff, undersheriff, deputy sheriff, constable, bailiff or other officer having like powers and duties of the county or other political subdivision in which the service is made, or an officer authorized by the laws of this state to take acknowledgments of deeds to be recorded in this state, or an attorney and counselor at law, solicitor, advocate or barrister duly qualified to practice in the state or country where

as

order.

When service complete.

make

service

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In rem.

such service is made, or by a United States marshal. Service with-Filing

proof when out the state must be made and proof thereof must be filed within thirty days after the order is granted; otherwise the order becomes complete. inoperative. Service without the state in lieu of publication is complete ten days after proof thereof is filed.

§ 235. Personal service out of the state without order. Where the complaint demands judgment that the defendant be excluded actions from a vested or contingent interest in or lien upon a specific real or personal property within the state or that such an interest or lien in favor of either party be enforced, regulated, defined or limited, or otherwise affecting the title to such property or where the complaint demands judgment annulling a marriage, or for a divorce, or a separation; or where it appears by affidavit filed in the action or as part of the judgment roll in such action that a warrant of attachment, granted in the action, has been levied upon property of the defendant within the state, the summons may be served without an order, upon a defendant without the state in the same manner as if such service were made within the state, except that a copy of the complaint must be annexed to and served with the summons, and that such service must be made by a person or officer authorized under section two hundred and thirtythree of this act to make service without the state in lieu of publication. Proof of service without the state without an order shall be filed within thirty days after such service. Service without the Filing state without an order is complete ten days after proof thereof Porter is filed.

servico

complete. § 2. This act shall take effect September first, nineteen hundred Effectivo thirty-five.

date.

CHAPTER 624
AN ACT to amend the judiciary law, the civil practice act, the New York

city court act and the tax law, in relation to notes of issue
Became a law April 30, 1935, with the approval of the Guvernor. Passed,

three-fifths being present The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section 1. Section eighty-three of chapter thirty-five of the laws L. 1809,

ch. 85, of nineteen hundred nine, entitled “An act in relation to the administration of justice, constituting chapter thirty of the consolidated laws,as amended by chapter three hundred ninety of the laws of nineteen hundred twenty-two, is hereby amended to read as follows:

§ 83. Power of appellate division as to calendars and administration of justice. The appellate division of each department may provide by rule for the manner of making up calendars in each county embraced within the department; for the classification, for the purposes of trial, of actions placed upon such cal.

amended.

O. P. A., $ 175, amended,

L. 1926, ch. 539, $ 80, amended.

Form.

endars and for the making up of two or more calendars within such classification; for the continuance on such calendars, from term to term, of actions for which notes of issue have been once served and filed, without a second or further serving and filing thereof; and also from time to time may provide rules as it may deem necessary generally to promote the efficient transaction of business and the orderly administration of justice therein.

§ 2. Section one hundred seventy-five of the civil practice act is hereby amended to read as follows:

$ 175. Offer to liquidate damages conditionally. In an action to recover damages for breach of a contract, the defendant's attorney may serve, with the answer upon the plaintiff's attorney, a written offer that if the defendant fails in his defense the damages may be assessed at a specified sum. If the plaintiff serves notice, with or before the note of issue, that he accepts the offer, and damages are awarded to him on the trial, they must be assessed accordingly.

§ 3. Section thirty of chapter five hundred thirty-nine of the laws of nineteen hundred twenty-six, entitled "An act in relation to the city court of the city of New York and the practice and procedure therein,” is hereby amended to read as follows:

§ 30. Note of issue. A note of issue may be given at any time after the joinder of issue for any day of any designated term. Such note of issue must be filed at least three days before the day which such note of issue has designated. It shall state the title of the action, the names of the attorneys, the time when the last pleading was served, and the nature of the action and defense. This section does not apply where special provision has been made for certain marine cases.

§ 4. Section two hundred ninety-three of chapter sixty-two of the laws of nineteen hundred nine, entitled “An act in relation to taxation, constituting chapter sixty of the consolidated laws," as last amended by chapter two hundred thirty-four of the laws of nineteen hundred thirty-three, is hereby amended to read as follows:

§ 293. Proceedings upon return. If it shall appear upon the return to any such writ that the assessment complained of is illegal or erroneous or unequal for any of the reasons alleged in the peti. tion, the court may order such assessment, if illegal, to be stricken from the roll, or if erroneous or unequal, it may order a reassessment of the property of the petitioner, or the correction of the assessment upon the roll, in whole or in part, in such manner as shall be in accordance with law, or as shall make it conform to the valuations and assessments of other property upon the same roll and secure equality of assessment. If upon the hearing it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or may appoint a referee to take such evidence as it may direct, and report the same to the court, with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determina

L. 1909,
ch. 62,
$ 293,
amended.

Illegal assessment,

Testi mony.

return.

tion of the court shall be made. In the city of New York, in all New York proceedings now pending or hereafter brought, the hearing upon ing upon à return which raises an issue of fact shall be brought on for trial after service and filing of a note of issue, as prescribed by rule one hundred fifty of the rules of civil practice. Upon the hearing the parties to the proceeding may mutually agree on parcels of real estate to be valued and the number of witnesses to be sworn. But in case the parties fail to agree on a selection of parcels to be valued and the number of witnesses to be sworn, then upon application of either party the court or referee shall determine the number of witnesses to be sworn, select the parcels that shall be valued without reference to their assessed values, and both parties shall be limited in their proof on the trial to such witnesses and the parcels so selected, except that evidence as to actual sales of real property within the tax district that occurred during the year in which the assessment under review was made may be given by either party. Before any testimony is given by either party as to the value of the parcels so selected, each party shall simultaneously file with the statecourt or referee, on a date fixed by the court or referee, a written values to statement or tabulation of the appraised values placed upon the bacalled parcels selected by the witnesses of the respective parties, and each party shall serve on the other at the same time a copy of such statement or tabulation of values fixed by his witnesses.

§ 5. This act shall take effect immediately.

with court.

CHAPTER 625

AN ACT to amend the judiciary law, in relation to disqualification of judges

of courts of records by reason of interest Became a law April 30, 1935, with the approval of the Governor. Passed,

three-fifths being present The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Section 1. Section fifteen of article two of chapter thirty-five of 1900, the laws of nineteen hundred nine, entitled "An act in relation to art. 11

$ 15, the administration of justice, constituting chapter thirty of the consolidated laws," as amended by chapter twenty-eight of the laws of nineteen hundred seventeen, is hereby amended to read as follows:

§ 15. Disqualification of judge by reason of interest or consanguinity. A judge shall not sit as such in, or take any part in the decision of, a cause or matter to which he is a party, or in which he has been attorney or counsel, or in which he is interested, or if he is related by consanguinity, or affinity to any party to the controversy within the sixth degree. The degree shall be ascertained by ascending from the judge to the common ancestor, and

amended.

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