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Affidavits

entitled, valid.

CHAPTER IX.

ENTITLING AFFIDAVITS.

SEC. 406. Affidavits defectively entitled, valid.

S406. It shall not be necessary to entitle an affidavit in the defectively action; but an affidavit made without a title, or with a defective title, shall be as valid and effectual, for every purpose, as if it were duly entitled, if it intelligibly refer to the action or proceeding in which it is made.

Time, how computed.

Notices

and other

1 N. Y., 612; 6 How. P. R., 108, 179.

CHAPTER X.

COMPUTATION OF TIME.

SEC. 407. Time, how computed.

$407. The time within which an act is to be done, as herein provided, shall be computed, by excluding the first day and including the last. If the last day be Sunday, it shall be excluded.

28 B., 286; 8 How. P. R., 385; 5 How. P. R., 117; 6 Ab., 289.

CHAPTER XI.

NOTICES, AND FILING AND SERVICE OF PAPERS.

SEC. 408, 409. Notices and other papers, how served on party or attorney.

410, 411. When and how served by mail.

412. Double time, when served by mail.

413. Eight days' notice of motion, &c., before court or judge, when personally served.

414. Where papers need not be served on defendant.

415. Service of papers where party resides out of the state.

416. Summons and pleadings to be filed within ten days after service.

417. Service, where party appears by attorney.

418. This chapter not to apply to summons or process, or to papers to bring party into contempt.

$408. Notices shall be in writing; and notices and other papers, how papers may be served on the party or attorney, in the manner prescribed in the next three sections, where not otherwise provided by this act.

served on

party or attorney.

Id.

5 How. P. R., 310, 354.

$409. The service may be personal, or by delivery to the party or attorney on whom the service is required to be made, or it may be as follows:

1. If upon an attorney, it may be made during his absence from his office, by leaving the paper with his clerk therein, or with a person having charge thereof; or when there is no person in the office, by leaving it, between the hours of six in the morning and nine in the evening, in a conspicuous place in the office, or if it be not open, so as to admit of such service, then by leaving it at the attorney's residence, with some person of suitable age and discretion;

2. If upon a party, it may be made by leaving the paper at his residence, between the hours of six in the morning and nine in the evening, with some person of suitable age and discretion.

8 B., 389; 15 How. P. R., 363; 6 How. P. R., 194.

CHAP. XI.

by mail

S410. Service by mail may be made, where the person when and making the service and the person on whom it is to be made how served reside in different places, between which there is a regular communication by mail.

15 How. P. R., 363; 4 How. P. R., 246; 10 Ab., 204. S411. In case of service by mail, the paper must be Id. deposited in the post office, addressed to the person on whom it is to be served, at his place of residence, and the postage paid.

20 N. Y., 557; 10 How. P. R., 460; 10 Ab., 204.

time, when

S412. Where the service is by mail, it shall be double the Double time required in cases of personal service: Except service of served by notice of trial, which may be made sixteen days before the day of trial, including the day of service.

As amended by Laws of 1859, ch. 428.

7 How. P. R., 132; 5 How. P. R., 75.

S413. Notice of a motion, or other proceeding, before a court or judge, when personally served, shall be given at least eight days before the time appointed therefor.

mail.

Eight days' motion, &c.

notice of

before court or judge, when per

When pa

5 414. Where a defendant shall not have demurred or why answered, service of notice or papers, in the ordinary proceed- served. ings in an action, need not be made upon him, unless he be pers need imprisoned for want of bail, but shall be made upon him or served on his attorney, if notice of appearance in the action has been defendant. given.

8 How. P. R., 68, 346.

not to be

papers,

ty resides

$415. Where a plaintiff or a defendant who has demurred service of or answered, or gives notice of appearance, resides out of the where parstate, and has no attorney in the action, the service may be out of the made by mail, if his residence be known, if not known, on the state. clerk for the party.

4 Ab., 354.

and plead

filed within

$416. The summons, and the several pleadings in an action, Summons shall be filed with the clerk within ten days after the service ings to be thereof, respectively, or the adverse party, on proof of the ten days omission, shall be entitled, without notice, to an order from a after ser judge that the same be filed within a time to be specified in the order, or be deemed abandoned.

vice.

where par

$ 417. Where a party shall have an attorney in the action, Service, the service of papers shall be made upon the attorney, instead ty appears of the party.

8 How. P. R., 68; 5 How. P. R., 115; 7 Ab., 325.

$418. The provisions of this chapter shall not apply to the service of a summons, or other process, or of any paper bring a party into contempt.

CHAPTER XII.

DUTIES OF SHERIFFS AND CORONERS.

to

by attorney.

This chapapply to

ter not to

summons
or process,
or to papers
to bring
party into
contempt.

SEC. 419. Duty of sheriff and coroner in serving and executing process, and how enforced. $419. Whenever, pursuant to this act, the sheriff may be Duty of required to serve or execute any summons, order, or judgment,

sheriff and coroner in

PART III.

serving or
executing
process,

and how
enforced.

Guardians

not to receive property until

security given.

Authorized to adminis

ter oaths,

or to do any other act, he shall be bound to do so, in like
manner as upon process issued to him, and shall be equally
liable in all respects for neglect of duty; and if the sheriff be
a party, the coroner shall be bound to perform the service, as
he is now bound to execute process, where the sheriff is a
party; and all the provisions of this act relating to sheriff's
shall apply to coroners when the sheriff is a party.
17 How. P. R., 500; 15 How. P. R., 461; 9 Ab., 391.

CHAPTER XIII.

ACCOUNTABILITY OF GUARDIANS.

SEC. 420. Guardian not to receive property until security given.

S420. No guardian appointed for an infant, shall be permitted to receive property of the infant, until he shall have given sufficient security, approved by a judge of the court or a county judge, to account for and apply the same, under the direction of the court.

10 Ab., 41; 2. Ab., 11.

CHAPTER XIV,

POWERS OF REFEREES.

SEC. 421. Referees authorized to administer oaths and to exercise powers now vested in referees by law.

$421. Every referee appointed pursuant to this act, shall have power to administer oaths, in any proceeding before him, and to exer- and shall have generally the powers now vested in a referee now vested by law.

cise powers

in referees

by law.

13 N. Y., 314; 31 B., 111.

CHAPTER XV.

MISCELLANEOUS PROVISIONS.

Papers lost

SEC. 422. Papers lost or withheld, how supplied.

423. Where undertakings to be filed.

424. Judgment on bond and warrant of attorney, executed before July 1, 1848.
425. Time for publication of notices, how computed.

426. Laws of other states and governments, how proved.

S422. If an original pleading or paper be lost or withheld or withheld, by any person, the court may authorize a copy thereof, to be filed and used instead of the original.

how sup

plied

Where unto be in dertakings

Judgment

$423. The various undertakings required to be given by this act, must be filed with the clerk of the court, unless the court expressly provides for a different disposition thereof, except that the undertakings provided for by the chapter on the claim and delivery of personal property, shall after the justification of the sureties, be delivered by the sheriff to the parties respectively, for whose benefit they are taken.

3 Ab., 431.

S424. Upon any bond and warrant of attorney executed warrant of and delivered before the first day of July, 1848, judgment

on bond and

attorney executed

may be entered in the manner provided by sections 382, 383

CHAP. XI.

and 384, upon the plaintiff's filing such bond and warrant of before July attorney, and a statement signed and verified by himself, in 1, 1848. the form prescribed by section 382.

12 How. P. R., 156; 1 Ab., 357.

publication

how com

$425. The time for publication of legal notices shall be Time for computed so as to exclude the first day of publication, and of notices, include the day on which the act or event of which notice pated. is given, is to happen, or which completes the full period required for publication.

other states

ments, how

$426. Printed copies in volumes, of statutes, code, or other Laws of written law, enacted by any other state, or territory, or foreign and governgovernment purporting or proved to have been published by proved. the authority thereof, or proved to be commonly admitted as evidence of the existing law in the courts and judicial tribunals of such state, territory, or government, shall be admitted by the courts and officers of this state, on all occasions, as presumptive evidence of such laws. The unwritten, or common law of any other state, or territory, or foreign government, may be proved as facts by parol evidence; and the books of reports of cases adjudged in their courts, may also be admitted as presumptive evidence of such law.

1 Hilt, 37.

TITLE XIII.

ACTIONS IN PARTICULAR CASES.

CHAPTER L. Actions against foreign corporations.

IL Actions in place of scire facias, quo warranto, and of informations in
the nature of quo warranto.

III Actions for the partition of real property.

IV. Actions to determine conflicting claims to real property, and for waste
and nuisance.

V. General provisions relating to actions concerning real property.

CHAPTER I.

ACTIONS AGAINST FOREIGN CORPORATIONS.

SEC. 427. Where and by whom brought.

by whom

S427. An action against a corporation, created by, or Where and under the laws of any other state, government or country, brought. may be brought in the supreme court, the superior court of the city of New York, or the court of common pleas for the city and county of New York, in the following cases:

1. By a resident of this state, for any cause of action;

2. By a plaintiff not a resident of this state, when the cause of action shall have arisen, or the subject of the action shall be situated within this state.

30 B., 161; 26 B., 151; 18 How. P. R., 218; 17 How. P. R. 17; 15 How.
P. R., 372; 7 How. P. R., 239; 13 Ab., 425; 8 Ab., 243, 294, 297;
4 Ab., 72.

PART III.

Scire facias and quo warranto

CHAPTER II.

ACTIONS IN PLACE OF SCIRE FACIAS, QUO WARRANTO, AND OF INFORMA-
TIONS IN THE NATURE OF QUO WARRANTO.

SEC. 428. Scire facias, and quo warranto abolished and this chapter substituted.

429. Action may be brought by attorney-general to vacate a charter, by direction of legislature.

430. Action to annul a corporation, when and how brought by attorney-general, by leave of supreme court.

431. Leave, how obtained.

432. Action upon information or complaint, of course.

433. Action, when and how brought to vacate letters patent.

434. Relator, when to be joined as plaintiff.

435. Complaint and arrest of defendant, in action for usurping an office.

436. Judgment in such action.

437. Assumption of office, &c., by relator, when judgment is in his favor.

438. Proceedings against defendant, on refusal to deliver books or papers.
439. Damages, how recovered.

440. One action against several persons claiming office or franchise.

441. Penalty for usurping office or franchise, how awarded.

442. Judgment of forfeiture against a corporation.

443. Costs against corporation or persons claiming to be such, how collected.

444. Restraining corporation and appointment of receiver.

445. Copy of judgment roll against corporation, where to be filed.

446. Entry of judgment relating to letters patent in records of commissioners of land office.

447. Actions for forfeiture of property to the people.

$428. The writ of scire facias, the writ of quo warranto, and proceedings by information in the nature of quo warabolished, ranto, are abolished, and the remedies, heretofore obtainable in those forms, may be obtained by civil actions, under the provisions of this chapter. But any proceeding heretofore commenced or judgment rendered, or right acquired, shall not be affected by such abolition.

and this chapter substituted

Action may

by attorney

vacate a

direction of

30 B., 591; 28 B., 68; 24 B., 272; 14 B., 400; 10 B, 130; 22 How. P.
R., 180; 11 How. P. R., 212; 6 How. P. R., 372; 4 How. P. R., 100;
7 Ab., 175; 6 Ab., 220; 4 Ab., 340; 3 Ab., 238;
Ab., 127.

S 429. An action may be brought by the attorney-general, be brought in the name of the people of this state, whenever the legis general to lature shall so direct, against a corporation, for the purpose charter by of vacating or annulling the act of incorporation, or an act legislature. renewing its corporate existence, on the ground, that such. act or renewal was procured, upon some fraudulent suggestion or concealment of a material fact, by the persons incorporated, or by some of them, or with their knowledge and consent.

Action to annul a corporation, when and how

brought by

attorney

general by

leave of supreme court.

28 B., 68; 7 Ab., 175; 1 Ab., 357.

S430. An action may be brought by the attorney-general, in the name of the people of this state, on leave granted by the supreme court, or a judge thereof, for the purpose of vacating the charter or annulling the existence of a corporation, other than municipal, whenever such corporation shall, 1. Offend against any of the provisions of the act or acts creating, altering or renewing such corporation; or

2. Violate the provisions of any law, by which such corporation shall have forfeited its charter, by abuse of its powers; or

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