Ryan v. Waule (1875) 63 N. Y. 57. But the right to appeal cannot be extended after the time provided by law has expired. The judgment conferred a vested right which could not be affected by a new right to appeal. Germania Sav. Bank v. Suspension Bridge (1899) 159 N. Y. 362, 54 N. E. 33.

The legislature may deny the right of appeal in actions not determined when the statute takes effect. If no right of appeal has attached by the rendition of a judgment, the subject is within the control of the legislature, and it may deny such right as to future cases. Grover v. Coon (1848) 1 N. Y. 536.

Conditional right of action.—It is competent for the legislature to attach a condition to the maintenance of a common law action, as well as one created by statute; and when they have done so its averment and proof cannot safely be omitted. An act was sustained which prohibited an action against the city until after the expiration of forty days from the presentation of the claim to the common council. This was held a necessary averment in the complaint. Reining v. Buffalo (1886) 102 N. Y. 308, 6 N. E. 792.

Criminal cases.-The legislature has power to enact rules of procedure for the trial of criminal cases, and the provisions of the Code of Criminal Procedure, §§ 464 and 543, relating to the effect of a reversal of a conviction and an order granting a new trial, were sustained as a valid exercise of legislative power. People v. Palmer (1888) 109 N. Y. 413, 4 Am. St. Rep. 477, 17 N. E. 213. This case has already been cited in a note under the topic "Twice in Jeopardy." Foreign corporations.—“There is nothing constitutional or fundamental in the method of procedure in an action." It is within the discretion of the legislature. An action either in rem or in personam may be authorized against a foreign corporation. Barnett v. Chicago & L. H. R. Co. (1875) 6 Thomp. & C. 358; Hiller v. Burlington & M. River R. Co. (1877) 70 N. Y. 223, sustaining a personal service of a summons in this state on one of the defendant's directors in an action on contract and without attaching property. The court say that "the legislature has power to determine how and upon whom service shall be made;" and "any service must be deemed sufficient which renders it reasonably probable that the party proceeded against will be apprised of what is going on against him, and have an opportunity to defend."

In Hein v. Davidson (1884) 96 N. Y. 175, 48 Am. Rep. 612, construing and sustaining the provisions of the Code of Civil Procedure, §§ 1421-5, providing for the substitution of the sureties to an undertaking indemnifying a sheriff against a levy made by him as de

fendants in an action against him because of such levy, the court say that the "right of the legislature to regulate the civil procedure for the enforcement of rights is wide enough to permit it to say when an officer acting under the requirements of that procedure may be sued and when he may not be, provided only that he is not shielded so as to deprive the citizen of adequate remedy for any trespass or wrong."

Liquor tax law. The legislature had power, by the act of 1897, chap. 312, amending the liquor tax law, to authorize the state commissioner of excise to bring an action on a bond given under § 18 by the holder of a liquor tax certificate, although at the time of the breach of the condition of the bond the law did not specify who might bring an action for its enforcement. Lyman v. Rochester Title Ins. Co. (1899) 37 App. Div. 234, 56 N. Y. Supp. 1111.

Minors. "It is clearly .. within the powers of the legislature as parens patria, to prescribe such rules and regulations as it may deem proper for the superintendence, disposition, and management of the property and effects of infants, lunatics, and other persons who are incapable of managing their own affairs." A statute authorizing a sale of the estate of infants for their maintenance and education was sustained. Cochran v. Van Surlay (1838) 20 Wend. 365, 32 Am. Dec. 570, followed in Towle v. Forney (1856) 14 N. Y. 423, which affected the title to a part of the property belonging to the same estate.

The same rule was declared as to the estates of minors in Leggett v. Hunter (1859) 19 N. Y. 445, also in Brevoort v. Grace (1873) 53 N. Y. 245, where the court say that the procedure is subject to legislative determination. See also Re Field (1892) 131 N. Y. 184, 30 N. E. 48; Ebling v. Dreyer (1896) 149 N. Y. 460, 44 N. E. 155. Place of trial. It has been uniformly held that the legislature has power to designate in what counties certain actions shall be tried. Czarnowsky v. Rochester (1900) 55 App. Div. 388, 66 N. Y. Supp. 931, affirmed in (1901) 165 N. Y. 649, 59 N. E. 1121, citing Brooklyn v. New York (1881) 25 Hun, 612; Getman v. New York (1892) 66 Hun, 236, 21 N. Y. Supp. 116; Lyman v. Matty (1898) 35 App. Div. 227, 54 N. Y. Supp. 765, also People v. Rouse (1891) 39 N. Y. S. R. 656, 15 N. Y. Supp. 414.

Preferences in civil actions.-The legislature had no power, as attempted by Laws 1904, chap. 173, amending § 793 of the Code of Civil Procedure, to require the court to designate a day certain for the trial of a preferred cause, and to try the cause on that day. The party against whom such a preferred cause is moved may be de

prived of an opportunity to prepare for trial, and may be compelled to go to trial without proper preparation, or else suffer a default. Riglander v. Star Co. (1904) 98 App. Div. 101, 90 N. Y. Supp. 772. See also Martin's Bank v. Amazonas Co. (1904) 98 App. Div. 146, 90 N. Y. Supp. 734.

Security for costs.-In McLaughlin v. Kipp (1903) 82 App. Div. 413, 81 N. Y. Supp. 896, the court sustained the provision in the Military Code authorizing security for costs in actions against militia officers for acts done in their official capacity. The court said that statutes requiring security for costs by nonresident suitors had frequently been sustained in other states and in the Federal courts. No New York case is cited on this point, but several cases are cited in which the power was affirmed irrespective of statutes, and before the enactment of legislation on the subject.

Substituted service.-"A citizen of a state is bound by its laws, both substantive and those regulating judicial procedure. Acquiring jurisdiction of resident defendants by constructive service of process is proceeding according to the course of the common law, and is due process of law. . . . Every sovereignty has power to regulate the procedure of its courts and prescribe the rights which plaintiffs may acquire, and the liabilities which may be imposed on resident defendants by judgments recovered in its tribunals." The provision for substituted service in § 435 of the Code of Civil Procedure is valid. Continental Nat. Bank v. Thurber (1893) 74 Hun, 632, 26 N. Y. Supp. 956, affirmed in (1894) 143 N. Y. 648, 37 N. E. 828, citing Hunt v. Hunt (1878) 72 N. Y. 217, 28 Am. Rep. 129, and Rigney v. Rigney (1891) 127 N. Y. 408, 24 Am. St. Rep. 462, 28 N. E. 405.

Surplus in partition.-Sections 2798 and 2799 of the Code of Civil Procedure, requiring, in certain cases, the payment into surrogate's court of the proceeds of the surplus on a sale in partition or foreclosure, were sustained in Re Stilwell (1893) 139 N. Y. 337, 34 N. E. 777.

PROPERTY.

The legislature has no power to transfer property from one person to another without the owner's consent, unless under the exercise of the right of eminent domain, the power of taxation, or in proceedings for the enforcement of a judgment. In Jackson ex dem. McCloughry v. Lyon (1824) 9 Cow. 664, it was said that the legislature could not transfer property from one set of heirs to another. The same subject is considered with a like result in Powers v. Ber

gen (1852) 6 N. Y. 358. See also People ex rel. Miller v. Ryder (1891) 124 N. Y. 500, 26 N. E. 1040; People ex rel. Griffin v. Ryder (1892) 65 Hun, 175, 19 N. Y. Supp. 977.

The legislature may authorize the acquisition of the absolute title to property under the power of eminent domain without any right of reversion to the original owner on the abandonment of the purposes for which the property was originally taken. Heyward v. New York (1852) 7 N. Y. 314, and may determine whether a fee or lesser estate shall be taken. Sweet v. Buffalo, N. Y. & P. R. Co. (1879) 79 N. Y. 293.

The same principle was applied in the case of land taken by the state. Eldridge v. Binghamton (1890) 120 N. Y. 309, 24 N. E. 462, where it was said that the state could acquire property by adverse possession as well as by condemnation or purchase.

RATIFICATION.

The legislature has often found it necessary to afford relief from mistakes made in administering public affairs by officers, state and local, who sometimes omit or vary prescribed formalities, thereby rendering their acts technically irregular and defective. Sometimes these defects are jurisdictional, and sometimes they exist only in matters of detail. The session laws show numerous legalizing statutes intended to cure these defects and validate official proceedings. These curative statutes are frequently general, intended to validate all official acts of a given class, like those relating to notaries public and inferior magistrates not involving judicial questions, but they often affect only special cases. Usually the legislature tries to ascertain the actual defects sought to be cured, but sometimes the statute is comprehensive in terms and intended to embrace all the acts of specified officers relating to a particular proceeding. A few of these legalizing statutes have received judicial attention, but the larger part of them have been accepted and accomplish the curative purpose desired without question. The validity of several of this class of statutes has been

challenged in the courts, and the following abstract will show the general course of judicial construction. The result of the decisions seems to be that if the officers whose acts are questioned had jurisdiction, the legislature may cure defects relating only to matters of detail in administration; but if such officers had no jurisdiction, the legislature cannot retrospectively confer such jurisdiction, and ratify proceedings which would otherwise be invalid. These legalizing statutes may usually be sustained on the theory that the legislature may retrospectively dispense with a matter of detail which it might have omitted in the original statute, and which was a subject of legislative discretion not affecting jurisdiction, or, as sometimes stated, the legislature may do retrospectively what it might have done in the first instance, provided it does not thereby affect vested rights, impair contracts, take property without due process of law, nor deprive a citizen of any of the rights secured to him by the Constitution. So, while many statutes in terms validate all acts and proceedings in a given case, and might on their face be broad enough to include even jurisdictional questions, they would doubtless in construction be limited to matters of detail.

Where there is "municipal jurisdiction of the subject-matter, and the defects in the exercise of it are irregularities in the mode of procedure, it is within the legislative discretion to adopt and confirm the result of the informal act, or to send back the matter to the municipality with power to begin again and go forward in the mode prescribed by the original authority." Tifft v. Buffalo (1880) 82 N. Y. 204.

Common council.-The legislature may ratify the illegal action of a common council, notwithstanding the fact that a judgment has been obtained based on such illegality, and further proceedings may thereupon be had on the judgment, and relief may be obtained against it. Wetmore v. Law (1860) 34 Barb. 515.

Corporations.-The legislature may validate and correct proceed