or personal service of a mandate, whereby a special proceeding is commenced, made within that city, as prescribed in this act for personal service of a summons, is sufficient service thereof upon a domestic corporation, wherever it is located, ART. 1. Where two or more de 265. Where an action or a special proceeding is brought there are against two or more parties, and the jurisdiction of a superior city court depends upon the residence of a party, within the fendants. city wherein the court is located; or personal service upon him, within that city, of the summons or the mandate for the commencement of the special proceeding; or the levying of a warrant of attachment within that city; and jurisdiction is thus acquired as against one or more, but not as against all of them, the jurisdiction, with respect to the others, is governed by the following rules: 1. Where the action or special proceeding is founded upon a contract, upon which two or more persons are jointly liable, and the court has or acquires jurisdiction thereof, as against one of them, it has jurisdiction thereof as against all the persons so jointly liable. But this subdivision does. not extend to a case, where the liability is several, as well as joint. 2. Where an action or a special proceeding brought against a public officer, together with one or more private persons, is founded upon an official act or omission; or where an action or a special proceeding brought against a corporation, together with one or more natural persons, is founded upon an act or omission of the corporation; and the court has or acquires jurisdiction thereof, as against the public officer or the corporation; it has jurisdiction thereof as against all persons, who are necessary parties to the complete determination of the controversy. 3. Where it is not necessary to the complete determination of the controversy, that all the parties thereto should be subjected to the jurisdiction of the court, the action or special proceeding may be discontinued or dismissed, as to [12] 89 TITLE 3. Jurisdic tion to be presumed; want of jurisdiction matter of defence. Jurisdic tion, etc., extensive with that of supreme court. the parties over whom the court has not jurisdiction, and proceed as to the others, as if they were the only parties against whom it was brought. § 266. The jurisdiction of a superior city court, in an action or a special proceeding brought therein, must always be presumed. It is not necessary to set forth in a complaint in such an action, or in the petition or other statement of the case in such a special proceeding, any of the jurisdic tional facts specified in section 263 of this act; and where the defendant in the action, or the person against whom the special proceeding is instituted, appears, the want of jurisdiction, by reason of the non-existence of any of those facts, is matter of defence, and is waived by the appear ance, unless it is pleaded in defence. § 267. Where a superior city court has jurisdiction of an to be co- action or special proceeding, it possesses the same jurisdic tion, authority, and power, in and over the same, and in the course of the proceedings therein, which the supreme court possesses in a like case; and it may render any judgment, or grant either party any relief, which the supreme court might render or grant in a like case, and may enforce its mandates in like manner as the supreme court. And each judge of the superior city court possesses the same power and authority, in the action or special proceeding, which a justice of the supreme court possesses, in a like action or special proceeding, brought in the supreme court. [d.; in special ings out 268. Each judge of a superior city court also possesses proceed the same power and authority, in a special proceeding, which of court. can be lawfully instituted before him, out of court, which a justice of the supreme court possesses in a like special proceeding, instituted before him in like manner. Actions, etc., may be removed § 269. The supreme court may, by an order, made at any time after joinder of an issue of fact, and before the trial ART. 1. court. thereof, remove to itself an action or a special proceeding into pending in a superior city court, for the purpose of chang- supreme ing the place of trial or hearing thereof. Where an order for a removal is made, as prescribed in this section, the place of trial or hearing must be changed by the same order to another county. A certified copy of the order must be filed in the office of the clerk of the court, in which the action or special proceeding was commenced. There upon it is removed into the supreme court; and the subsequent proceedings therein must be the same, as if it had been originally brought in the supreme court. and in cases, removal granted. § 270. An order for the removal of an action or special Where proceeding, as prescribed in the last section, can be made what only upon notice, and by a special term of the supreme order for court, where the motion might be made, if the action or to be special proceeding was pending in the supreme court, and brought in the county where the superior city court is located; and in a case, where an order, changing in like manner the place of trial or hearing, would be granted, if the action or special proceeding was pending in the supreme court. from removal. § 271. An appeal from an order, made upon such a Appeal motion, must be taken and heard in like manner, as if the order of action or special proceeding was pending in the supreme court, and triable in the county from which the place of trial is changed. Such an appeal brings up to the general term, and thence to the court of appeals, if the order is appealable to that court, all questions which were before the special term, and the appellate tribunal must dispose of the same, as if they were originally presented to it. of Order to stay pro § 272. An order to stay proceedings, for the purpose affording an opportunity to make such an application for ceedings removal, may be made by a judge, authorized to make to procure an removal. TITLE 3. Removal to su preme court, when order to stay proceedings, either in the court where the action or special proceeding is pending, or in the supreme court, and with like effect, and under like circumstances. § 273. If all the judges of a superior city court are, for any reason, incapable of sitting upon the trial of an action, or the hearing of a special proceeding, pending therein, or city court if all, or all but one, of the judges of a superior city court judges of cannot act. Removal from court to city court, by consent. are incapable of sitting upon the hearing of an appeal therein, the judges of the court, or a majority of them, must make, and file in the office of the clerk of the court, a certificate of the fact. Thereupon the action or special proceeding is removed to the supreme court; and the subsequent proceedings therein must be the same, as if it had been originally brought in the supreme court. § 274. The supreme court, where the parties manifest in supreme writing their consent, must make an order, directing that an action or special proceeding, pending in that court, and triable in a county where a superior city court is located, be removed to the superior city court, or, in the city of NewYork, to either of those courts therein, as specified in the consent. A certified copy of the order must be filed in the office of the clerk of the court, to which the action or special proceeding is ordered to be removed. Thereupon it is removed accordingly; and all subsequent proceedings therein must be the same, as if it had been originally brought in the superior city court. Duty of clerks when removal made. 275. Where an action or special proceeding is removed from one court to another, as prescribed in this article, the clerk of the court from which it is removed, must forthwith deliver to the clerk of the court to which it is removed, all papers filed therein, and certified copies of all minutes and entries relating thereto; which must be filed, entered or recorded, as the case requires, in the office of the last mentioned clerk. If the action or special proceeding is removed to the supreme court, and the place of trial or hearing changed, the delivery must be made to the clerk of the county, in which the order of removal directs the trial or hearing to be had. any ART. 1. not to affect validity of proceed ings, etc. § 276. The removal of an action or special proceeding, as Removal prescribed in this article, does not invalidate, or in manner impair, a process, provisional remedy or other former proceeding, or a bond, undertaking, or recognizance, in the action or special proceeding so removed; each of which continues to have the same validity and effect, as if the removal had not been made. Where bail has been given, the surrender of the defendant, in the court to which the action or special proceeding was removed, has the same effect, as a surrender in the court from which it was removed would have had, if the action or special proceeding had remained therein. County may make § 277. In an action or special proceeding, brought in a When superior city court, an order may be made without notice, judge or an order to stay proceedings may be made upon notice, order. by the county judge of the county where the court is situ ated, or of the county where the attorney for the applicant resides, in a case where a judge of the superior city court might make the same out of court, and with like effect. send pro county. § 278. A superior city court has power, in an action or Power to Me special proceeding, of which it has jurisdiction, to send its cess to any process and other mandates into any county of the State, for service or execution, and to enforce obedience thereto, with like power and authority as the supreme court. ings com before § 279. A special proceeding, instituted before a judge of Proceedthe superior court of Buffalo, or the city court of Brooklyn, menced or a proceeding commenced before a judge of either of one judge those courts, out of court, in an action or special pro- continued 93 may be before another. |