§ 439. (Remodeled and changed.)[
L. 1879, p. 602, c. 542.
$440. (Amended in the middle of
the section by transposing the
words, "without the State," §
and putting them before the
phrase "upon the defendant
personally," and inserting
after the latter, "if he is of
full age, or an infant of the
age of fourteen years or up-
wards.") L. 1879, p. 603, c.
542.
end of first sentence the
words, "but they must not
be inconsistent with each
other.") L. 1879, p. 604, c. 542.
511. (Amended by substituting
§ 450. (Amended by adding at the
end thereof "It is not neces-
sary or proper to join her hus-
band with her as a party in § 525,
any action or special proceed-
ing affecting her separate prop-
erty.") L. 1879, p. 617, c. 542.
§ 451. (Amended by omitting at
the end of the third sentence,
the words, "and for that pur-
pose, an unknown person is
deemed not to be a resident of
the State.") L. 1879, p. 603,
c. 542.
§ 470. (Application for appointment
of guardian ad litem may be
made by a general guardian
after "where," in the first two
lines, the words, "the answer
of the defendant, expressly or
by not denying, admits a part
of the plaintiff's claim to be
just," instead of “a part of
the plaintiff's claim, which
may be severed from the re-
mainder, is admitted upon the
pleadings.") L. 1879, p. 604,
c. 542.
subd. 3. (Amended by insert-
ing in the second clause after
attorney resides" the words,
"or, if the latter is not a resi-
dent of the State, the county
where he has his office.") L.
1879, p. 604, c. 542.
§§ 535, 536. (Have not changed the
law as to what defendant may
set forth in his answer, and
prove on the trial in mitiga-
tion in action for slander.)
Hatfield v. Lasher, 17 Hun, 23.
appointed in another State.) § 537. (Amended by omitting at the
second line, and omitting after
the word "defendant" in the
same line the words "has been
guilty of a fraud in contract-
ing or incurring the liability;
or".) L. 1879, p. 605, c. 542.
But this amendment does not
apply to actions already com- §
menced. Id. p. 619, c. 542,
§ 2.
words with the undertak-
ing, if any;" by adding the
same words after "granted"
in the second sentence, and by
omitting "five hundred and
seventy-seven" after sec-
tion.") L. 1879, p. 605, c. 542.
576. (Amended by prefixing the
sentence "It is not necessary
that the undertaking should
be approved, or accompanied
with an affidavit of justifica-
tion of the bail. But ".) L.
1879, p. 605, c. 542.
577. (Amended by omitting the
words between "sheriff" in
the first line and "must de-
liver" in the fourth line; and
also by omitting the whole of
the last sentence.) L. 1879,
p. 606, c. 542.
§ 557. (Amended by inserting in the
first line after "granted" the
words "in a case specified in
section five hundred and forty-
nine of this act;" and by omit.
ting the rest of the first sen-§
tence after "exists," and add-
ing in place thereof "against
the defendant, as prescribed
in that section. It may be
granted, in a case specified in
section five hundred and fifty
of this act, upon like proof § 590.
that a sufficient cause of action
exists against the defendant,
as prescribed in that section,
and of the other matters ex-
trinsic to the cause of action,
specified in that section.")
L. 1879, p. 605, c. 542.
$558. (Amended by substituting
for the words at the end of the
section after "complaint," the
words "fails to set forth a
sufficient cause of action, as
required by the last section.")
L. 1879, p. 605, c. 542.
§ 559. (Amended by substituting
for "or without" before
"sureties" in the middle of
the section "two sufficient;"
by inserting after "judgment"
in the next line "or if it is
finally decided that the plaint-
iff was not entitled to the
order of arrest;" by substitu-
ting for one hundred dol-
lars" at the end, the words,
'equal to one-tenth of the
amount of bail required by the
order, and not less than two §§
hundred and fifty dollars.")
L. 1879, p. 617, c. 542.
§ 562. (Amended by adding at end
of second clause of first sen-
tence, after "granted," the
(Amended by transposing
and adding to the first part
preceding the sheriff," so
that it will read "Within ten
days after the defendant is
arrested, if he does not give
bail, or if he gives bail, within
ten days after the justification
of the bail;" by adding after
"arrest," at end of next clause,
the words "or, where it was
granted by the court, the cer-
tified copy thereof delivered
to him;" by changing "there-
on" to "thereupon;" by omit-
ting "and" after "indorsed;"
and by adding at end of the
section "and the undertaking
given on the part of the plain-
tiff. Where an order of arrest,
directing the arrest of two or
more defendants, has been
executed as to one or more,
but not as to all of them, the
sheriff may file a copy of the
order of arrest, instead of the
original.") L. 1879, p. 606,
596,597. (When execution against
person of a judgment debtor
need not be issued to sheriff
of the county in which he was
arrested at commencement of
action.) Johnson v. Myer, 17
Hun, 232.
§ 627. (Amended by inserting after
"granted" in the first line
"without notice, or where it
was granted," then after
"upon notice," by inserting
"with leave to vacate or
modify it.") L. 1879, p. 606,
c. 542.
of judgment by annexing affi-
davit of attorney, not allowed.)
Riggs . Waydell, 17 Hun,
§ 757. (Amended by inserting be-
fore "defendant" on first line,
"a sole;" and by omitting all
the words between "must" in
the second line and "upon a
motion" in the third line, and
also all that immediately fol-
lows the latter words to
"allow" in the next to the last
line.) L. 1879, p. 607, c. 542.
760. (Amended by prefixing to the
section "In a case specified in
the foregoing sections of this
title;" and by substituting for
"in a proper case" in the mid-
dle of the third sentence, —
"where the protection of the
applicant's rights requires it.")
L. 1879, p. 607, c. 542.
§ 769. (Amended by adding after
"district" at end of second
clause the words, "the motion
must be made in that dis-
trict.") L. 1879, p. 608, c. 542.
§ 649, subd. 2. (Amended by adding
at end thereof "He must
thereupon, without delay, de-
liver to the person from whose
possession the property is
§
taken, if any, a copy of the
warrant, and of the affidavits
upon which it was granted.").
L. 1879, p. 618, c. 542.
§ 714. (Amended by adding at the
end "But where an order has
been made, as prescribed in
section four hundred and
thirty-eight of this act, the
court may, in its discretion,
appoint a temporary receiver,
to receive and preserve the
property, without notice, or
upon a notice given by publi-
cation or otherwise, as he $779.
thinks proper.") L. 1879, p.
606, c. 542.
§ 719. (Amended by adding at end
thereof the whole of what was
formerly 720.) L. 1879, p.
606, c. 542.
§ 720. (Entirely new-what was
formerly this section having
been annexed to the preceding
section-it now relates to the
defendant's interposing a
(Amended by inserting im-
mediately before "are stayed"
in the fifth line, the words,
"except to review or vacate
the order.") L. 1879, p. 608,
c. 542.
(Payment of costs of a motion
to a sheriff holding a precept
against the party entitled
thereto, sufficient.) Brown .
Kahn, 17 Hun, 599.
counter-claim and demanding § 791, subd. 1. (Amended by speci-
affirmative relief.) L. 1879,
p. 606, c. 542.
§ 721. (Amended by changing "
into "any" before the second
"judgment," and substituting
for "reversed" following it
the words "of a court of re-
cord be." Also, in subd. 12,
by prefixing to beginning
"For an omission on the part
of a referee to be sworn; or ".)
L. 1879, p. 607, c. 542.
§ 740. (When amendment to offer
fying more particularly in
what actions in which attorney-
general appears, preferences
are to be given.) L. 1879, p.
231, c. 163.
Subd. 8. (Amended by adding
at the end thereof "An action
upon an undertaking given
upon an appeal to the court of
appeals, or to stay execution
on an appeal to the court of
appeals.") L. 1879, p. 618, c.
542.
§793. (Amended by substituting § 832. (Amended by inserting after
"sixth" for "seventh
eighth" in next to the last
line.) L. 1879, p. 608, c. 542.
§ 797, subd. 4. (Amended by in-
serting after "residence" in
the first line "within the §
State.") L. 1879, p. 608, c.
542.
§ 822. (Amended by providing that
one of several defendants,
against whom a separate
judgment may be taken, may
move for a dismissal of the
complaint as against himself.)
L. 1879, p. 608, c. 542.
$828. (Only applicable to civil
actions.) People v. Crandon,
17 Hun, 490.
§ 829. (What evidence of plaintiff
of services rendered, and ma-
terials furnished to a testator
in action therefor against his
executor, inadmissible.) Fish-
v. Verplanck, 17 Hun,
(When maker of note may
testify to personal transactions
with deceased payee in action
on the note by the latter's ad-
ministrator.) Church v. How-
ard, 17 Hun, 5.
§830. (A new section substituted,
providing for the reading, at a
new trial, of testimony of a §
deceased person, or the giving
of testimony rendered incom-
petent by death of a party.)
L. 1879, p. 618, c. 542.
"witness" in the second line,
the words "in a civil or crimi-
nal action or special proceed-
ing.") L. 1879, p. 609, c.
542.
855. (Amended by omitting be-
fore "person" near beginning
of last sentence, "officer or
other," and after it or the
body;" by inserting after
"subpœna" in the next line,
"if he is a judge of a court
of record or not of record, or
if not, then any judge of such
a court," instead of "upon
proof of due service thereof,
and where it required the wit-
ness's attendance before an-
other person;" and by insert-
ing "by affidavit" after the
second upon proof.")
1879, p. 618, c. 542.
§ 856. (Amended by omitting be-
fore "person" in the last
clause of the section, "officer
or other," and after it "or the
body;" by inserting after
"subpoena" in the same line,
"if he is a judge of a court of
record, or not of record, may
forthwith, or if he is not,
then any judge of such court
may upon proof by affidavit of
the facts;" and by inserting
after commit" in the same
line 66
'the offender.")
1879, p. 618, c. 542.
867. (Amended by inserting after
"tecum" in third line, a
period and the words "Such
a subpoena must be ".)
L.
1879, p. 609, c. 542.
§ 831. (Amended by omitting the § 870.
first sentence; by inserting
after "compelled" in second
sentence or without consent
of the other, if living, allow-
ed;" by inserting "not" be-
(Examinations of the direct-
ors of a defendant corpora-
tion, not authorized.) Boor-
man v. Atlantic & Pacific R.
R. Co., 17 Hun, 555.
fore "a competent" in the § 872. (Amended in subds. 2 and 3
second sentence; by inserting
before "defendant" in the
next line "plairtiff, but she
a competent witness for
the".) L. 1879, p. 618, c. 542.
VOL. VI.-33
by changing and transposing
so that they read as follows:
"2. If an action is pending,
the nature of the action and
the substance of the judgment
demanded, and, if the appli-|
cation is made by the defend-
ant before answer, or by
either party after answer, the
nature of the defense;" "3.
If no action is pending, the §
nature of the controversy
which is expected to be the
subject thereof."
Subd. 5 amended by adding
at end of last clause of first
sentence"; or that any other
special circumstances exist,
which render it proper that he
should be examined as pre-
scribed in this article."
Subd. 6, amended, by. in-
serting after first clause
that he has an office within the
State, where he regularly
transacts business in person,
specifying the place, and, if it
is in a city, the street and
street number, or other desig-
nation of the particular local-
ity;" and in place of "they
are all so resident or sojourn-
ing" at end of the section, the §
following, viz.: "each is of
full age, and so resident or
sojourning, or has such an
office; also the circumstances
which render it necessary for §
the protection of the appli-
cants' rights, that the witness's
testimony should be perpetu-
ated.") L. 1879, p. 609, c.
452. But the amendments to
this section do not apply to a §
case where an order for an
examination has already been
made. Id. p. 619, c. 542, § 2.
(When order to examine á party
before trial may be vacated.)
Levy v. Loeb, 44 Super. Ct.
(J. & S.) 291; Corbett v. De
Comeau, Id. 306.
(Vacating order on account of de-
fective affidavit and incom-
plete service.) Dunham v.
Mercantile Mut. Ins. Co., 44
Super. Ct. (J. & S.) 387.
(Requisites of affidavit for exami-
nation of non-resident party
before trial.) Dunham v.
Mercantile Mut. Ins. Co., 6
Abb. New Cas. 70.
873. (Amended by inserting after
"affidavit" at end of second
clause, and that the appli-
cation is made in good faith
to preserve the expected testi-
mony;" by inserting a new
sentence between the first and
second sentences, providing
that where the party to be
examined is a party to a pend-
ing action, or expected to be,
the judge may limit the mat-
ters as to which he shall be
examined, and in the next
sentence providing that in
such a case the examination
must be before a judge.) L.
1879, p. 610, c. 542. But these
amendments do not apply to
a case where an order for an
examination has been already
made. Id. p. 619, c. 542, § 2.
875. (Amended by omitting after
"action" in the third line, the
words "who is required there-
by to appear.") L. 1879, p.
610, c. 542.
876. (Amended by adding a
sentence that sections 856,
857 and 858 apply to the ex-
amination of a party or person
expected to be an adverse
party.) L. 1879, p. 610, c. 452.
880. (Amended by prefixing a
sentence providing that the
examination shall be subject
to same rules as at a trial; by
inserting instead of "taking
a deposition" in the first line,
the words "upon every other
examination taken;" by sub-
stituting for "witness" at end
of first clause of second sen-
tence the words "person ex-
amined;" and by adding a
sentence at the end of the
section, providing for referee's
reporting any question, refused
to be answered, to the judge
for him to pass upon.) L.
1879, p. 610, c. 542.
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