Sidebilder
PDF
ePub

person, the pleadings must then be made, and issue must be joined. The pleadings may be oral or written; if they are oral, the clerk must enter the substance thereof in the minutes. If either party desires a trial by a jury, he must demand the same, at the time of the joinder of issue; otherwise the issue must be tried by the court, without a jury.

See note to 3178, ante.

3186. Id.; trial.- Where a trial by jury is duly demanded, the court at chambers must direct the issue to be tried, at a trial term, upon such notice as it deems proper, or without notice; it may also direct that the action have a preference upon the day calendar, either generally or for a particular day; and it may give such direction as it deems proper, with respect to filing a note of issue. Where a trial by jury is not duly demanded, or where the defendant is in default, the evidence must then, or at such subsequent time, either at chambers or at a trial term or special term, as the court at chambers appoints, be given; and thereupon final judgment must be rendered. But the issue must be appointed to be tried, within six days after the joinder thereof, unless both parties assent to a longer time; or a trial by jury is demanded, and there is no term of the court, at which it can be had, within that time. The trial cannot be adjourned, without the consent of both parties, beyond three calendar months from the joinder of issue.

Lee note to 3178, ante.

3187. Ordinary action may be brought for like cause. This article does not prevent the plaintiff from commencing, and conducting in the ordinary manner, an action, for a cause specified in subdivision second of section 317 of this act.

See note to 8 3178, ante,

ARTICLE FOURTH.

APPEALS TO AND FROM THE GENERAL TERM OF THE COURT.

SEC. 3188. Appeal to general term, from a judgment.

3189. Id.; from an order.

3190. Time to appeal from order; proceedings thereupon.

3191. Appeal from general term to common pleas; in what cases.

SEC. 3192. Id.; proceedings regulated.

3193. Id.; within what time; where heard.

3194. Id.; determination upon appeal, how enforced. Id.; where new trial was properly granted.

3195. Id.; appeal therefrom to court of appeals.

§ 3188. Appeal to general term, from a judgment.— An appeal, to the general term of the court, may be taken from a final judgment rendered therein, in a case where an appeal may be taken to the general term of the supreme court, from a final judgment rendered therein, as prescribed in section 1346 of this act.

L. 1853, ch. 617, 5; L. 1872, ch. 629, 9 and 11.

§ 3189. Id.; from an order.-An appeal, to the gen eral term of the court, may also be taken from an interlocutory judgment rendered, or an order made, at a special term or a trial term thereof, or an order made by a justice thereof, out of court, in a case, where an appeal may be taken to the general term of the supreme court, from an interlocutory judgment rendered, or an order made, in like manner, as prescribed in sections 1347, 1348, and 1349 of this act.

L. 1872, ch. 629, 9 and 10. Leland v. Smith, 3 Daly, 309.

3190. Time to appeal from order; proceedings thereupon.-An appeal, authorized by the last section, must be taken within ten days after service of a copy of the judgment or order appealed from, and a written notice of the entry thereof. In every other respect, titles first and fourth of chapter twelfth of this act, apply to and govern an appeal, taken as prescribed in either of the last two sections.

See note to last section.

3191. Appeal from general term to common pleas; in what cases. An appeal may be taken to the court of common pleas for the city and county of New-York, from an actual determination, made by the marine court of the city of New-York, at a general term thereof, in either of the following cases:

1. Where a final judgment has been rendered, upon an appeal taken to the general term.

2. Where an order has been made, granting a new trial. But an appeal cannot be taken, from an order granting a new trial, upon a case or exceptions, unless the notice of appeal contains an assent, on the part of

the appellant, that if the order is affirmed, judgment absolute may be rendered against the appellant.

Code of Proc. 352; L. 1874, ch. 545, 9. Hoffenberth e. Muller, 12 Abb. N. S. 221; McEteere v. Little, 7 Abb. N. C. 374; McMahon r. Rauhr, 47 N. Y. 67 Whitlock . Joseph, 14 Abb. 342; Howe v. Julien, 2 Hilt. 453; Mitchell . Westchester Fire Ins. Co., 6 Daly, 452; Hone r. Julien, 9 Abb. 193; Man. and Build. Bank e. Kiersted, 6 Daly, 160; McIntyre r. Hernandez, 7 Abb. N. S. 214; Bamberg v. Stern, 76 N. Y. 555; Harper v. Hall, 1 Daly, 498; Farrington v. O'Conner, 6 id. 209; Gordon e. Hartman, 9 Week. Dig. 293; Merceron v. Fowler, 9 Reporter, 257; Farley v. Lyddy, id. 257; Lesser v. Wander, id. 416; Raymond v. Belcher, 1 Law. Bull. 62; Badgley v. Brown, 3 E. D. S. 66; McCunn v. Burnett, 2 id. 521; Martin r. Mayor, 20 How. 86; Brown e. Jones, 1 Hilt. 204; Michelle. Menkle, id. 142; Smith v. American Inst., 7 Daly, 526; Gordon v. Hartman, 9 Week. Dig. 293.

3192. Id.; proceedings regulated. — Titles first and third of chapter twelfth of this act apply to and govern an appeal, taken as prescribed in the last section, except as otherwise expressly prescribed in the next two sections,

See L. 1874, ch. 545, 9. Smith v. American Institute, etc., 7 Daly, 526.

3193. Id.; within what time; where heard.An appeal, authorized by the last section, must be taken within twenty days after service of a copy of the judgment or order appealed from, and a written notice of the entry thereof. The appeal must be heard at a general term of the appellate court.

See note to last section.

3194. Id.; determination upon appeal, how enforced. Id.; where new trial was properly granted. -The judgment or order of the appellate court must be remitted to the court below, to be enforced according to law. Upon an appeal from an order granting a new trial, on a case or exceptions, if the appellate court determines that no error was committed in granting the new trial, it must render judgment absolute upon the right of the appellant; and thereupon an assessment of damages, or any other proceeding, requisite to render the judgment effectual, may be had in the marine court.

See note to 3192, ante.

§ 3195. Id.; appeal therefrom to court of appeals.— Upon an appeal to the court of appeals, the notice of appeal and undertaking must be filed with the clerk of the marine court, who must transmit the necessary papers to the court of appeals; and the judgment or

order of the court of appeals must be remitted to and enforced by the marine court.

New. Wooster v. Forty-second St. R. R. Co., 71 N. Y. 471.

TITLE II.

The mayor's court of the city of Hudson, and the recorders' courts of the cities of Utica and Oswego.

SEC. 3196. Civil Jurisdiction prescribed.

3197. Certain pending actions, etc., transferred to supreme court. 3198. Id.; certain papers, etc., to be transmitted to county clerk. 3199. Power of supreme court, in actions, etc., so transferred. 3200. Proceedings in case of judge's disability.

3201. Service of subpoenas.

3202. Effect of this title limited.

The civil

3196. Civil jurisdiction prescribed. jurisdiction of the mayor's court of the city of Hudson, the recorder's court of the city of Utica, and the recorder's court of the city of Oswego, extends only to an action whereof jurisdiction is expressly conferred upon the court, by a provision of a statute incorporat ing, or otherwise specially relating to the government of, the city wherein the court is located.

Code of Proc., 8 33.

§ 3197. Certain pending actions, etc., transferred to supreme court. - Every civil action, now pending in either of those courts, other than an action specified in the last section, is hereby transferred to the supreme court; and the subsequent proceedings therein, before and after the judgment, must be the same, as if the action had been commenced in the supreme court.

New.

3198. Id.; certain papers, etc., to be transmitted to county clerk.—All judgment-rolls, and other records, and all books and papers, relating exclusively to civil actions, other than an action specified in the last section but one, now remaining in either of those courts, must be delivered by the clerk thereof, or, if there is no clerk, by the judge or other officer, having the custody thereof, to the clerk of the county in which the court

is located, to be preserved among the records of his office. The expense of so doing is a county charge.

New.

3199. Power of supreme court, in actions, etc., so transferred. The supreme court may review, enforce, vacate, or amend a final judgment heretofore rendered by either of those courts, in a civil action, other than an action specified in section 3196 of this act, with like power and effect, as the court in which it was commenced might have so done, if this act had not been passed.

New.

3200. Proceedings in case of judge's disability. — The county court of the county in which either of those courts is located, may, by an order, remove to itself an action of which either of those courts has jurisdiction, as prescribed in section 3196 of this act, upon proof, by affidavit, that the judge thereof is, for any cause, incapable of acting, either generally or in the particular action. Sections 344, 345, and 346 of this act apply to such an order of removal, and to the proceedings subsequent thereto. The proceedings subsequent to the order are the same, as in an action brought in the county court, except that costs must be awarded, as if the action had remained in the court from which it was removed.

Code of Proc., part of 33.

3201. Service of subpoenas. A subpoena, issued out of either of those courts, may be served upon a witness, at any place within the State. A warrant to apprehend a witness, for a failure to obey such a subpoena, may be directed to the sheriff of the county where the court is located, and executed by him within any county of the State. The sheriff is subject to the same liability, for a failure to serve or return it, as if it was issued out of the supreme court.

2 R. L. 505, ch. 85, 18.

This title does

§ 3202. Effect of this title limited. not affect any provision of law conferring upon a judge, or upon the judges, of either of those courts, jurisdiction, power or authority, in an action brought in another court, or in a special proceeding.

New.

« ForrigeFortsett »