PART III. §§ 214, 215 and 216, how to apply. Actions, how tried. Justice or jury may in certain cases. hundred and ninety-four and one hundred and ninety-five of the Code, in respect to bail on arrest in the supreme court. $9. Sections two hundred and fourteen, two hundred and fifteen and two hundred and sixteen of the Code, shall apply to proceedings and actions brought under this act, substituting the word constable for the word sheriff whenever it occurs in either of said sections. $10. The actions so commenced shall be tried in all respects as other actions are tried in justice courts. S 11. In all actions for the recovery of the possession of assess value personal property, as herein provided, if the property shall of property not have been delivered to plaintiff, or the defendant by answer shall claim a return thereof, the justice or jury shall assess the value thereof, and the injury sustained by the prevailing party by reason of the taking or detention thereof, and the justice shall render judgment accordingly, with costs and disbursements. constable showing dant could Return of a S 12. If it shall appear by the return of a constable that he had taken the property described in the plaintiff's affidavit, that defen- and that defendant cannot be found, and has no last place of abode in said county, or that no agent of defendant could be found on whom service could be made, the justice may proceed with the cause in the same manner as though there had been a personal service. not be found, &c. Fee for indorsement. S 13. For the indorsement on said affidavit, the justice shall receive an additional fee of twenty-five cents, which shall be included in the costs of the suit. Commissioners of Code to CHAP. 459. AN ACT to amend the Code of Procedure. PASSED April 16, 1860. The People of the State of New York, represented in Senate and Assembly, do enact as follows: [The first 12 sections of this act make amendments to the Code, which are inserted in their proper places.] $ 13. The commissioners of the Code appointed by the act of April sixth, one thousand eight hundred and fifty-seven, prepare and are hereby authorized and requested to prepare and publish, in the same manner as their reports, a book of forms, adapted to the Code of Procedure, and the forms thus published shall be submitted to the next legislature. publish a book of forms. CHAP. XI. CHAP. 460. AN ACT to amend the Code of Procedure, and to extend the term of office of the Commissioners of the Code, appointed under the act of April sixth, eighteen hundred and fifty-seven, and to repeal section thirty-seven, article second, title second, chapter first, part third, of the Revised Statutes. PASSED April 23, 1862; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: [The residue of this act -the whole chapter containing 39 sections-amends sundry sections of the Code. The amendments will be found in their proper places.] ing costs, $28. Whenever costs are awarded to the appellant he shall In awardbe allowed to tax as part thereof the costs and fees paid to what may the justice on making the appeal as disbursements, in addi- be allowed. tion to the costs in the appellate court; and when the judgment in the suit before the justice was against such appellant, he shall further be allowed to tax the costs incurred by him, which he would have been entitled to recover in case the judgment below had been rendered in his favor. may be set $29. If, upon an appeal, a recovery for any debt or dama- When costs ges be had by one party, and costs be awarded to the other off against party, the court shall set off such costs against such debt or damages, and render judgment for the balance. damages. costs, for $30. The following fees and costs, and no other except fees Fees and of officers, disbursements and witnesses' fees, shall be allowed what al on appeals to the party entitled to costs as herein provided, when the new trial is in the county court. For proceedings before notice of trial, ten dollars. For all subsequent proceedings before trial, seven dollars. For every trial of an issue of fact, fifteen dollars. For argument of a motion for a new trial on a case or bill of exception, ten dollars. In all cases, to either party, for every term not exceeding five, at which the appeal is necessarily on the calendar, and is not tried or is not postponed by the court, seven dollars. In other appeals the costs shall be as follows: To the appellant on reversal, fifteen dollars; to the respondent on the affirmance, twelve dollars. If the judgment appealed from be reversed in part and affirmed as to the residue, the amount of costs allowed to either party shall be such sum as the appellate court may award, not exceeding ten dollars. If the appeal be dismissed for want of prosecution, as provided by section three hundred and sixty-four, no cost shall be allowed to either party. In every appeal, the justice of the lowed. PART III. Term of fice of com of Code extended. peace before whom the judgment appealed from was rendered, shall receive two dollars for his return. If the judgment be reversed for an error of fact in the proceedings not affecting the merits, costs shall be in the discretion of the court. S38. The term of office of the Commissioners of the Code missioners appointed by the act of April sixth, one thousand eight hundred and fifty-seven, is hereby extended until the first day of April, one thousand eight hundred and sixty-five, but subject to all the provisions of said act. S39. Section thirty-seven of article second, title second, 1, of R. S. chapter first of the Revised Statutes in relation to the jurisdiction of the court of chancery is hereby repealed. 37, article title 2, ch. repealed. Preferred causes in court of appeals. Section 104 amended as to limitation of actions. Section 116 ad litem. CHAP. 392. AN ACT to amend the Code of Procedure, and to repeal section thirty-seven, article second, title second, chapter first, part third of the Revised Statutes. PASSED May 4, 1863; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: S1. The act known as the Code of Procedure is hereby amended as follows: Section thirteen is amended by adding at the end thereof the following; and whenever in any action or proceeding in which the people of this state or any state officer, or any board of state officers, is or are sole plaintiff or defendant, an appeal has been or shall be brought from any judgment or order for or against him or them, in any court, such appeal shall have a preference in the supreme court and in the court of appeals, and may be moved by either party out of the order on the calendar. Section one hundred and four is hereby amended so as to read as follows: "If an action shall be commenced within the time prescribed therefor, and a judgment therein be reversed on appeal, the plaintiff, or if he die and the cause of action survive, his heirs or representatives may commence a new action within one year after reversal." Section one hundred and sixteen is hereby amended by to guardian adding at the end thereof the following: "And in case an infant defendant, having an interest in the event of the action, shall reside in any state, with which there shall not be a regular communication by mail, on such fact satisfactorily appearing to the court, the court may appoint a guardian ad litem, for such absent infant party, for the purpose of protecting the right of such infant in said action, and on such guardian ad litem, process, pleadings and notices in the action may be served, in the like manner as upon a party residing in this state." Section one hundred and fifty-four is hereby amended so as to read as follows: CHAP. XL amended as on failure "If the answer contain a statement of new matter consti- Section 154 tuting a counter-claim, and the plaintiff fail to reply or demur to judgment thereto within the time prescribed by law, the defendant may to reply. move, on a notice of not less than ten days, for such judgment as he is entitled to upon such statement, and if the case require it, a writ of inquiry of damages may be issued." Subdivision seven, and what follows it of section one hundred and sixty-seven, is hereby amended so as to read as follows: amended as "Seven. Claims against a trustee, by virtue of a contract, Section 167 or by operation of law. But the causes of action, so united, to joinder must all belong to one of these classes, and except in actions of claims. for the foreclosure of mortgages must affect all the parties to the action, and not require different places of trial, and must be separately stated. In actions to foreclose mortgages the court shall have power to adjudge and direct the payment, by the mortgagor, of any residue of the mortgage debt that may remain unsatisfied after a sale of the mortgaged premises, in cases in which the mortgagor shall be personally liable for the debt secured by such mortgage; and if the mortgage debt be secured by the covenant or obligation of any person other than the mortgagor, the plaintiff may make such person a party to the action, and the court may adjudge payment of the residue of such debt remaining unsatisfied after a sale of the mortgaged premises against such other person, and may enforce such judgment as in other cases." Section one hundred and seventy-nine is hereby amended, in the fourth subdivision thereof, by adding to said subdivision the following words: "Or when the action is brought to recover damages for Section 179 fraud or deceit." amended as amended as notes of stenogra city of New Section two hundred and fifty-six is hereby amended by striking out all after the word "notice," in the second paragraph, and adding to the said section the following: "In Section 256 every action in which issue of fact is now joined, and the to filing action is now placed upon the calendar of the supreme court issue and of the first judicial district, or of the superior court of the employing city of new York, or of the court of common pleas for the city phers in and county of New York, the party who shall have filed such York. note of issue, shall, as a condition precedent to such action being brought to trial, pay to the clerk of the court the sum of three dollars; and in every action in either of the said courts commenced after the passage of this act, the party who shall file therein a first note of issue of fact shall, as a condition precedent to such filing, pay to the clerk of the court the sum of three dollars; and the amounts so received shall be accounted for and paid over, monthly, by the clerk of PART III. Stenographers in other counties. each of said eourts, to the comptroller of the city of New York, and by him deposited in the county treasury, to be used as a fund for the payment of the salaries of stenographers employed in said courts, as provided for in this section. If the fund thus created be inadequate to pay such salaries, the additional amount necessary for such payment shall be appropriated and paid from the fund of county contingencies, to which fund any surplus of the sums so paid over to the comptroller, as herein before provided, shall be credited. "Each of the courts hereinbefore named shall appoint a stenographer for the circuit, trial term or special term, which constitutes a separate branch of such court, who shall be a sworn officer of the court, shall hold office during the pleasure of the court, and shall be paid a salary of fifteen hundred dollars per annum, in like manner as the salaries of other officers of the courts are now paid. It shall be the duty of every stenographer so appointed for any circuit, trial term or special term, under the direction of the presiding judge thereof, to take full stenographic notes of all proceedings in every trial thereat; and in case the presiding judge shall require a transcript of said stenographic notes, he may order the expense thereof to be paid equally by the parties to the action, at the rate of ten cents for every one hundred words so transcribed, and may enforce payment thereof, and the amount so paid, together with the sum paid as a condition precedent to the cause being brought to trial, or to the first note of issue being filed as herein before provided, shall be deemed a necessary disbursement within the meaning of section three hundred and eleven of the Code of Procedure, and shall be allowed as such to the prevailing party in the action. "At any extra circuit, trial term or special term of said courts, the presiding judge thereof shall appoint a stenographer for such extra circuit or term, who shall, in like manner as aforesaid, be a sworn officer, and who shall be paid a compensation at the rate and in the manner hereinbefore provided. "When a court of oyer and terminer shall be held in and for the city and county of New York, the presiding judge thereof shall designate one of the stenographers of the supreme court to act as stenographer of such court of oyer and terminer during its session, who shall in like manner as aforesaid, be a sworn officer, but who shall receive no compensation in addition to his salary as herein before provided, except that in case a transcript of his stenographic notes, taken on the trial of any criminal cause, be required for the use of the presiding judge or the district attorney, the expense thereof shall, on the order of such judge or district attorney, be paid as a county charge at the rate herein before specified. "In other counties of this state, on trials of issues of fact, at any circuit court, or court of oyer and terminer, it shall be lawful for the presiding justice, in his discretion, to employ a |