out of a court of record, other than an execution issued out of such a court, and directed, pursuant to law, to a constable or marshal; and to sales and other proceedings, by virtue of an execution directed to a sheriff, and delivered to him, after that date. Sections one thousand four hundred and thirteen and one thousand four hundred and fourteen, and sections one thousand four hundred and seventeen to one thousand four hundred and twenty-seven, both inclusive, apply only to a case where such an execution is issued out of one of the courts specified in subdivision fourth of this section; or where a warrant of attachment has been granted in an action brought in one of those courts. Title third of that chapter applies only to an execution issued upon a judgment rendered in one of those courts. § 6. Qualifications. The application of that act, as prescribed in the last preceding section of this act, is subject to the following qualifications: 1. Not to impair certain proceedings. That act does not render ineffectual or otherwise impair any proceedings in an action or special proceeding to which it applies, taken, pursuant to the existing laws, before the first day of May, eighteen hundred and seventy-seven; and where any provision contained in it would render ineffectual, or otherwise impair, such a proceeding, the subsequent proceedings must be taken as prescribed in the existing laws, as far as it is necessary, for the purpose of avoiding such a result. 2. Operates, in certain cases, as an amendment of the Code of Procedure. With respect to an action or special proceeding, commenced before the first day of May, eighteen hundred and seventy-seven; or with respect to any provision of the existing laws, remaining unrepealed after it takes effect, whereby the proceedings in an action or special proceeding are specially prescribed, or otherwise regulated; or with respect to the costs, fees, or expenses in an action or special proceeding; it has the same effect as if it was an act amending the Code of Procedure. 3. Proceedings at terms of county courts. Each provision of that act, conferring power upon, or authorizing or requiring a proceeding to be taken at a general, special or trial term, which is made, by the terms of this act. applicable to a county court, is to be construed as applying to any term of the county court, held pursuant to an appointment made as prescribed by law. § 7. Marine court of the city of New York. The application of that act to the marine court of the city of New York is subject to the following qualifications: 1. It does not confer upon the marine court, or a justice thereof, power to grant an order of arrest, an injunction order, or a warrant of attachment, in a case where the same cannot be granted under the existing laws; or take away the power of that court, or of a justice thereof, to grant such an order or warrant, in a case where the same can be granted under the existing laws; or otherwise affects the jurisdiction or power of that court, or a justice thereof, under the existing laws, except so far as the latter are inconsistent with, or superseded by, title fourth of chapter third of that act. 2. It does not affect the proceedings in that court in "marine causes," as regulated by the existing laws. 3. It does not affect any provision of the existing laws, exclusively applicable to the proceedings in that court, prescribing or authorizing a justice of the court to prescribe, the time within which an act must or may be done, or must or may be required to be done. 4. It does not affect an appeal to or from the general term of that court. 5. It does not confer upon that court power to refer a cause or matter, in a case where that power is not conferred upon it by the existing laws. § 8. Construction of certain provisions of existing laws. A provision of the existing laws, relating to the proceedings in an action in a court, other than one of those specified in subdivision fourth of section five of this act, or to a special proceeding before any judge or other officer, which assimilates the proceeding, by general language, or by reference to another provision of the existing laws, to a proceeding in the supreme court, or before a justice thereof, or generally, to a proceeding in other courts of record, or before a judge thereof, is to be construed, where the corresponding proceeding is prescribed and regulated in the act specified in section one of this act, as referring to the provisions of the latter, prescribing and regulating the same. § 9. Publication of a summons. Each provision of that act, requiring the publication of a summons, notice, or other paper, in one or more newspapers, or authorizing or requiring a court, or a judge, to designate one or more newspapers, in which such a publication must be made, is to be construed as not affecting any special provision of the existing laws, prescribing one or more particular newspapers, in which such publication must be made, in a particular locality or in a particular case. § 10. Actions against mayor, aldermen, etc., of the city of New York. That act does not affect any provision of the existing laws, which is applicable exclusively to an action against the mayor, aldermen and commonalty of the city of New York, including the recovery, entry, or collection of a judgment in such an action. § 11. "Security." Each provision of that act, requiring the plaintiff in an action to give security, for the purpose of obtaining an order of arrest, an injunction order, or a warrant of attachment, or as a condition of obtaining any other relief, or taking any proceeding in the action, or allowing the court, or a judge, to require such security to be given, is to be construed as excluding an action brought by the people of the State, or by a domestic municipal corporation, or by a public officer, in behalf of the people, or of such a corporation. § 12. Transmission of papers. Each provision of that act, requiring a judge, clerk, or other officer, to transmit a paper to another officer, for the benefit of a particular person, is to be construed as requiring the transmission only upon the request of the person so to be benefited, and upon payment by him of the fees allowed by law therefor, if any, and of the fees allowed by law, for a copy or certificate, connected therewith, together with the reasonable expenses of the transmission. § 13. Appointment of terms and designation of judges. That act does not affect the appointment of a term, or the designation of one or more judges to hold a term, made, pursuant to the existing laws, until new terms are appointed, or one or more judges are newly designated as prescribed in that act. § 14. Officers and employees. It does not create a vacancy in any office or employment, designated or referred to therein, by the title or description thereof, contained in the existing laws, or by another title or description; nor does it affect the existing laws relating to the amount, or the time or the mode of payment, of the compensation of an officer, or employee, so designated or referred to, who is in office or employed when it takes effect; except that where the tenure of his office or employment is not prescribed in that act, he may be removed at pleasure by the court, officer, or officers. uthorized by its provisions to appoint a person to discharge the same duties. Until he is removed, or his office or place becomes otherwise vacant, the provisions of that act apply to him, and to the discharge of his duties. The officers or employees, styled in section ninety-three of that act "attendants," include those styled, in the existing laws, "officers;" those styled in section ninety-five "attendants and messengers," include those styled, in the existing laws, "officers and attendants;" those styled in section two hundred and eighty-eight "special deputy clerks and other assistants," include those styled, in the existing laws, "deputies" and "clerks employed by the clerk," and all the clerks and other employees, in the office of the clerk of the court of common pleas for the city and county of New York, specified in section two of chapter six hundred and sixtyfour of the laws of eighteen hundred and sixty-nine, or actually employed, pursuant to the existing laws, to do clerical duty in the office of the clerk of that court, or the clerk of the superior court of the city of New York; those styled in section three hundred and nine "special deputy clerks and assistants in the clerk's office," include those styled in the existing laws, "deputies," of whom the deputy clerk of the city court of Brooklyn, specified in section two hundred and eighty-four, is one; those styled, in section three hundred and twenty-eight of that act, "assistants," include those styled, in the existing laws, "assistant clerks." This enumeration shall not be construed to exclude, from the provisions of this section, any other officer or employee, performing the duties of an office or employment, which is designated or referred to in that act by a title or description other than that which it bears in the existing laws. § 15. "Existing laws." The term "existing laws," as used in this act designates the statutes of the State remaining unrepealed on the thirtieth day of April, eighteen hundred and seventy-seven. § 16. Printing and publication of this act and "The Code of Remedial Justice." This act and the Code of Remedial Justice shall not be printed or published for the use of the State, or of any State Department, or State officer, or otherwise in any manner at the expense of the State, except in the volumes containing the laws of this session to be printed and published as prescribed by law; they shall be printed in one volume, which shall contain no other law passed at this session; nor shall they be printed or published in any newspaper at the expense of the State, or of any county. All laws relating to printing, distributing or publishing any of the Statutes of the State at the public expense, shall be deemed inapplicable to those two acts, except as respects the printing, publication and distribution thereof, in the volumes containing the laws of this session. § 17. This act shall take effect immediately. 707 SUSPENDING ACT. CHAP. 318 OF 1877. AN ACT to suspend the operation of parts of chapters four hundred and forty-eight and four hundred and forty-nine of the laws of eighteen hundred and seventy-six, to continue in force the laws superseded thereby, and to regulate proceeding in civil actions. PASSED May 22, 1877 The People of the State of New York, rèpresented in Senate and Assembly, do enact as follows: SECTION 1. The operation of all the provisions of chapters four hundred and forty-eight and four hundred and forty-nine of the laws of eighteen hundred and seventy-six, except sections three hundred and three to three hundred and six, both inclusive, and sections one thousand and twentyseven to one thousand one hundred and eighty, both inclusive, of said chapter four hundred and forty-eight, and so much of subdivisions two and seven, of section five of said chapter four hundred and forty-nine, as applies to said sections, is hereby suspended until the first day of September, eighteen hundred and seventy-seven, when the same shall again go into and remain in full force and effect. §2. Any summons actually issued in an action on or after the first day of May, eighteen hundred and seventy-seven, and before this act takes effect, shall not be deemed invalidated or affected in any manner by the provisions of this act, and the same may be served upon any of the defendants, and judgment by default for want of appearance or answer may be taken as if this act had not been passed; or if the defendant answers, the proceedings in the action to the service of the first pleading therein shall be the same as if this act had not been passed. §3. No proceeding in an action or a special proceeding, taken as prescribed in chapter four hundred and forty-eight of the laws of eighteen hundred and seventy-six, on or after the first day of May, eighteen hundred and seventy-seven, and before this act takes effect, shall be invalidated or impaired by this act, but the subsequent proceedings, except as otherwise provided in the sections mentioned in section one of this act, or as otherwise expressly prescribed in the last preceding section, shall conform, as nearly as may be, to the provisions of law regulating proceedings in actions and special proceedings as they existed on the thirtieth day of April, eighteen hundred and seventy-seven, and the court shall, upon proper application, allow, without costs, any amendment or other proceeding which may be necessary for that purpose. § 4. All actions or special proceedings commenced after this act takes effect, and all proceedings after this act takes effect in an action or special proceeding commenced before this act takes effect, shall be conducted as prescribed by law for that purpose, in force on the thirtieth day of April, eighteen hundred and seventy-seven, until the first day of September next, except as otherwise prescribed in this act. § 5. Chapter four hundred and forty-nine of the laws of eighteen hundred and seventy-six is hereby amended as follows: 1. In section five the words "the first day of May, eighteen hundred and seventy-seven," are stricken out wherever they occur, and the words "the first day of September, eighteen hundred and seventy-seven," are inserted in place thereof, except that the words "the first day of May, eighteen hun dred and seventy-seven," are retained in subdivision seven of that section, so far as they apply to title third or title fourth, or article first of title fifth of chapter ten of the said chapter four hundred and forty-eight of the laws of eighteen hundred and seventy-six. 2. Ir section fifteen of the said act the words "the thirtieth day of April, eighteen hundred and seventy-seven," are stricken out and the words "the thirty-first day of August, eighteen hundred and seventy-seven," are substituted in place thereof, except so far as they apply to title third or title fourth, or article first of title fifth of chapter ten of the said chapter four hundred and forty-eight of the laws of eighteen hundred and seventy-six. § 6. The provisions of laws which were in force on the thirtieth day of April, eighteen hundred and seventy-seven, and which were superseded in whole or in part by the provisions of said chapters four hundred and fortyeight and four hundred and forty-nine of the laws of eighteen hundred and seventy-six, except the provisions superseded by sections three hundred and three to three hundred and six thereof, both inclusive, and sections one thousand and twenty-seven to one thousand one hundred and eighty thereof, both inclusive, shall be operative and continue in full force and effect until the first day of September, eighteen hundred and seventy-seven. § 7. This act shall take effect immediately. I have compared the preceding with the original law on file in this office, and do hereby Certify that the same is a correct transcript therefrom and of the whole of said original W. JOHN BIGELOW, 709 |