Section 64-Continued. Serving a summons. Serving a warrant.. Constable's fees in special proceedings. Arresting and committing any person pursuant to process Juror's fees. Attending to serve as juror, although not sworn. Attending and trying a cause. Witnesses' fees. Attending in court, or before a commission, or to be examined on commis sion, for each day's actual attendance... 25 Every judgment to be with costs of suit, but the whole amount of the items of such costs to be included in the entry of judgment, except charges for the attendance of witnesses from another county, shall not in any case exceed $5, unless such suit has been adjourned more than once at the request and on the motion of the losing party: and in such cases the costs of such additional adjournment may be included in the entry of judgment. And in all cases in which an issue is joined and trial had and the damages recovered exceed $50, or where the plaintiff's claim in the complaint exceeded $50 and the defendant recovers judgment, the prevailing party shall be entitled to costs not exceeding $10, exclusive of witnesses' fees (Laws 1866, ch. 692, § 2). Same section, p. 81. Where a judgment recovered in a court of a justice of the peace is docketed with the county clerk, execution thereon must be issued by the county clerk. (Brush v. Lee, 18 Abb. 398.) $ 71, p. 86. Where in an action against joint debtors only one defendant is served and judgment taken against him, an action to enforce that judgment against the defendant is not an action on a judgment within section 71 of the Code. (Dean v. Eldridge, 29 How. 218.) § 73, p. 88. When the statute begins to run against depositaries of moneys. (Payne v. Gardiner, 29 N. Y. 146.) A condition in a policy of insurance that no suit shall be brought thereon, unless commenced within six months next after any loss, is binding. (Roach v. N. Y. & Erie Ins. Co., 30 N. Y. 546.) The lex fori governs all questions arising under the statute of limitations. (Power v. Hathaway, 43 Barb, 214.) Statute of limitations apply to surrogate's courts. (Smith v. Remington, 42 Barb. 75.) 73, p. 88. When the statute begins to run against a note payable on demand. (Scovil v. Scovil, 43 Barb. 246.) 181. $85, p. 94. § 88, p. 95. See Munro v. Merchant, 28 N. Y. 10; Doolittle v. Tice, 41 Barb. See Fogal v. Pirro, 10 Bosw. 100. $ 90, p. 96 a. See Conger v. Vandewater, 1 Abb. N. S. 126. § 91, p. 97. An action in the nature of a creditor's bill is limited to six years after the return of the execution unsatisfied. (Eyre v. Beebe, 28 How. 333.) $99, p. 100. The delivery of a summons to the sheriff to be served, with an intent to have it served, is the commencement of an action. (Davis v. Duffie, 18 Abb. 360.) § 100, p. 101. A defendant resident abroad cannot avail himself of the stat ute of limitations until he has been a resident of this State and subject to process six years. (Powers v. Hathaway, 43 Barb. 214; see McCord v. Woodhull, 27 How. 54.) § 102, p. 102. 105, p. 103. 31 N. Y. 345. See Scovil v. Scovil, 45 Barb. 517. See McQueen v. Babcock, 41 Barb. 337; Sands v. Campbell, § 110, p. 104. What is a sufficient promise to take a debt out of the statute. See Loomis v. Decker, 1. Daly, 186; McNamee v. Tenny, 41 Barb. 495; Stuart v. Foster, 18 Abb. 305; 28 How. 273; Creuse v. Defiganiere, 10 Bosw. 123; Com'l Ins. Co. v. Brett, 44 Barb. 489. This section is not retrospective. (Coe v. Mason, 41 Barb. 612; overruling Van Allen v. Feltz, 23 Barb. 139; 9 Abb. 227, and Van Allen v. Feltz was reversed in Court of Appeals-see 27 How. 601.) Part payment of a debt by the assignee of an insolvent, is not evidence of a new promise. (Stuart v. Foster, 18 Abb. 305; affirmed in Court of Appeals.Ed.; and see Creuse v. Defiganiere, 10 Bosw. 123.) 111, p. 106. Semble, an action to recover lands conveyed while in adverse possession may, since the the statute of 1862, be brought by the grantee in the name of his grantor, without his consent. (Lowber v. Kelly, 9 Bosw. 494.) Same section, p. 106. An action may be brought by a party in the name by which he is known, although that is not his true name. (Cooper v. Burr, 45 Barb. 10.) § 111, p. 109 f. It is no objection to a suit by the assignee of a foreign executor that the assignment was made to avoid the difficulty arising from the incapacity of such executor to sue (Petersen v. Chemical B'k, 32 N. Y. 10; 29 How. 240). Can a sheriff assign his right of action against bail? (Clapp v. Schutt, 29 How. 255). A cause of action against a carrier for lost baggage is assignable (Merrill v. Grinnell, 30 N. Y. 594); and so is a right of action for converting personal property (Genet v. Howland, 30 How. 360). Where a bond and mortgage are given to secure a debt, an assignment of the bond alone is a nullity (Cooper v. Newland, 17 Abb. 342). One cannot transfer to another the right to prove a demand usurious (Bullard v. Raynor, 30 N. Y. 197). As to transfer of a demand for which a note has been given (Armstrong v. Cushney, 43 Barb. 340). Same section, p. 112 q. A demand may be assigned by parol. (Hooker v. Eagle B'k, 30 N. Y. 83; Arnold v. Johnson, 28 How. 249.) A verbal pledge of a negotiable instrument, without a delivery or an absolute transfer, will not make the pledgee a bona fide holder. (Russell v. Scudder. 42 Barb. 31; and see Taacks v. Schmidt, 18 Abb. 308.) § 112, p. 115. Where a promissory note payable on demand with interest was transferred to the plaintiff, a bona fide holder, nearly three months after its date, held that it was not to be deemed dishonored at the time of the transfer, so as to let in a defence existing in favor of the maker, against the payee. (Herrick v. Woolverton, 42 Barb. 50.) § 113, p. 116. Action on administrator's bond should be in the name of the People. (Annett v. Kerr, 28 How, 324; Conner v. Such, 9 Bosw. 321.) For a cause of action against a county the suit should be against the supervisors. (Magee v. Cutler, 43 Barb. 240.) Same section, p. 117 d. Suits against a partnership or association consisting of seven or more persons should be against the president or treasurer of such association. (Robbins v. Wells, 18 Abb. 191.) Same section, p. 120. Suits against Commissioners of Pilots-see Laws 1865, ch. 712, p. 1424. § 114, p. 121 f. Add, Horton v. Payne, 27 How. 374. Same section, p. 121. In an action by a wife concerning her separate estate, the husband is not a proper party. (Palmer v. Davis, 28 N. Y. 242; Ackley v. Tarbox, 31 N. Y. 564; reversing s. c. 29 Barb. 512; Fox v. Duff, 1 Daly, 196.) But if the husband is joined and the defendant does not demur, the plaintiffs may recover. (Ackley v. Tarbox, 31 N. Y. 564.) A married woman cannot sue her husband in ejectment (Gould v. Gould, 29 How. 441), nor for assault and battery. (Longendyke v. Longendyke, 44 Barb. 366.) Á married woman keeping a boarding-house on her own account, may sue for the seduction of her daughter. (Badgley v. Decker, 44 Barb. 577.) To reach the property of a married woman she should be sued alone. (Porter v. Mount, 45 Barb. 423.) 116, p. 123. The omission of an infant plaintiff to have a guardian appointed is an irregularity only, it may be waived and is cured by the plaintiff coming of age pending the action. (Rucker v. Puckhofer, 9 Bosw. 638.) Where a defendant in an action of tort being an infant appears by attorney and answers, without the appointment of a guardian, all the proceedings are irregular. (Boyley v. McAvoy, 29 How. 278; see Parks v. Parks, 19 Abb. 161.) § 117, p. 127 d. an action for freight. Y. 43.) Where a vessel has several owners they should all join in (Merritt v. Walsh, 32 N. Y. 685; Donnell v. Walsh, 33 N. Limited partnerships-see Laws 1864, ch. 43. § 118, p. 128. In creditors' suits the judgment debtors must be made parties and served with process,--naming them as parties merely is not sufficient. (Monroe v. Galveston R. R. Co, 19 Abb. 90.) Where several are guilty of a tort, the party injured may sue them jointly or severally. (Creed v. Hartmann, 29 N. Y. 591; Kasson v. The People, 44 Barb. 347; Phelps v. Wait, 30 N. Y. 78.) § 119, p. 131. In an action for waste by a remainder man in fee, it is not necessary to make the owner of any intervening estate a party. (Van Deusen v. Young, 29 N. Y 9.) In an action against partners all must be joined, that the statute of limitations is a defence as to one partner is no excuse for omitting to make him a defendant. (Hyde v. Van Valkenburgh, 1 Daly, 416.) § 120, p. 133 e. Add, Farmers' B'k v. Blair, 44 Barb. 642. § 121, p. 134. This section does not apply to arbitrations. (Manning v. Pratt, 18 Abb. 344.) The cause of action in replevin survives the death of the plaintiff, but not the defendant. (Lahey v. Brady, 1 Daly, 443.) As to proceedings on death of parties to actions to recover real property, see Laws 1865, ch. 357. Same section, p. 138 f. Add, Re Borsdorff, 41 Barb. 211; Roach v. 19 Abb. 67. La Farge, The representatives of a deceased sole defendant, in an action after judgment and pending an appeal thereon, have the right to have themselves made parties to the appeal. (Schuchardt v. Remiers, 28 How. 514; 1 Daly, 459.) Where one of two joint defendants dies before judgment, the action cannot be revived as a joint one against the survivor and the personal representative of the deceased, but may, it seems, be revived as separate actions. (Union B'k v. Mott, 27 N. Y. 633.) A defendant cannot compel an assignee of a cause of action pending the suit to become a plaintiff without his consent. (Packard v. Wood, 17 Abb. 318.) § 122, p. 140. As to the right of a stranger to be made a party, see Hornby v. Gordon, 9 Bosw. 656; Scheidt v. Sturgis, 10 Bosw. 606; Kelsey v. Murray, 28 How. 243; 18 Abb. 294; McKay v. Draper, 27 N. Y. 256. Section 122-Continued. When a party may interplead. (Wakeman v. Dickey, 19 Abb. 24; Morgan v. Fillmore, 18 Abb. 217; McHenry v. Hazard, 45 Barb. 657; U. S. Trust Co. v. Wiley, 41 Barb. 477; Trigg v. Hitz, 17 Abb. 436; Schuyler v. Hargous, 28 How. 243; McKay v. Draper, 27 N. Y. 256; Wash. Ins. Co. v. Lawrence, 28 How. 435.) § 127, p. 153 e. Add, Oothout v. Ballard, 41 Barb. 33; Smith v. Aylesworth, 40 Barb. 104. § 128, p. 154 a. The copy summons served need not to state that the original is stamped. (Watson v. Morton, 18 Abb. 139; 27 How. 294; reversing s. c. 26 How. 383.) Same section, p. § 128, p. 156 e. 155 d. Misnomer, see Cooper v. Burr, 45 Barb. 10. See Sprague v. Irwin, 27 How. 51. § 129, p. 157. An action against sureties on an undertaking given pursuant to section 209 of the Code, is an action arising on contract within subd. 1 of section 129. (Montegriffo v. Mustie, 1 Daly, 77.) In all cases when the action is not upon a money demand, or obligation for the payment of money, the case is within subd. 2 of section 129. (Hemson v. Decker, 29 How. 385; and see McDougall v. Cooper, 31 N. Y. 498; Goff v. Edgerton, 18 Abb. 381; Willett v. Stewart, 43 Barb. 98.) § 130, p. 159. Where the summons is in the form appropriate for serving the copy complaint together with the copy summons, the omission to serve a copy of the complaint, or to state in the summons the place of filing the complaint, although irregular does not affect the validity of the judgment. (Foster v. Wood, 1 Abb. N. S. 150; 30 How. 284.) § 132, p. 161. The notice of lis pendens should include only the property actually to be affected by the judgment, and where an attachment issues the notice should include only the property attached. (Fitzgerald v. Blake, 28 How. 110.) Notices of lis pendens to be recorded and indexed.-Laws 1864, ch. 53. § 134, p. 164 f. Where does a cause of action arise? (Conn. Mut. Ins. Co. v. Cleaveland R. R. Co., 41 Barb. 28; Artisans' Bk v. Park Bk, 41 Barb. 599; Jewell v. Wright, 30 N. Y. 259.) A convict in the State prison may be sued, and process served upon him personally. (Davis v. Duffie, 8 Bosw. 617.) Same section, p. 167 c. Fraud in service, add, Metcalf v. Clark, 41 Barb. 45. § 135, p. 170. Laws of 1863, ch. 212, amend the law of 1853 as to service of process, and provide that except in partition cases or actions or proceedings where no personal claim is made against any persons in the classes thereafter described none of the provisions of the law of 1853 should apply to officers, soldiers or musicians while "actually absent from home" and actually engaged in the military service of the United States, nor to any sailor or marine actually absent "from his home" and actually engaged in the naval service of the United States, and except in partition cases and cases where no personal claim is made as aforesaid, no order is to be granted under the law of 1853 unless it be first shown by affidavit to the satisfaction of the court or judge that the defendant against whom such an order is desired is not an officer, soldier, musician, sailor or marine actually absent and in service as aforesaid, or that the action is to partition real estate, or that no personal claim is made on the defendant against whom the order is sought. Laws 1866, ch. 411, provide for service of process on express companies, § 135, p. 170 b. Add, at end, Welles v. Thornton, 45 Barb. 390. The affidavit must not only show that the case falls within some one of the five subdivisions of this section, but also the jurisdictional fact, that the person on whom the service is to be made cannot after due diligence be found within the State. The circumstance that such person is a non-resident is of no importance, except as it tends to establish the fact, that he is not within the State at the time when the application is made. (Peck v. Cook, 41 Barb. 549.) If the affidavit is insufficient the plaintiff will not be aided by the fact that after the order for publication was made, the summons and complaint were served upon the defendant personally out of the State. (Id.) § 135, p. 172 g. Add, at end, see Laws 1866, ch. 690. § 136, p. 174. A judgment entered against several joint debtors, upon service of the summons upon only a part of them, is a judgment in form only against those not served. (Foster v. Wood, 1 Abb. N. S. 150; 30 How. 284.) § 136, p. 174 g. Where a judgment has been obtained against two joint debtors, upon a service on one only, a second action may be brought against both defendants, alleging the recovery of the judgment, serving process on the defendant not before served and a judgment taken against him. (Dean v. Eldridge, 29 How. 218.) § 137 p. 175 a. Dykers v, Woodward, 7 How. 313, approved Sherman v. Strakosh, Transcript, 3 March, 1865. § 138, p. 176 c. An admission of service of the summons and complaint, not stating the mode in which the service was made, is not sufficient. The admission must state that the service was personal, by the delivery of a copy thereof to him. •(Read v. French, 28 N. Y. 285.) § 139, p. 177 a. The mere issuing of a summons is not the commencement of an action for general purposes. (Kerr v. Mount, 28 N. Y. 659.) § 140 p. 179, foot-note. For "In suits brought by" read "In suits brought by or against," and add at end, Laws 1864, ch. 422. See Hopf v. Myers, 42 Barb. 270. Add, Grantman v. Thrall, 44 Barb. 173. See, Coope v. Bowles, 28 How. 10; 18 Abb. 442; 42 § 142, p, 189 c. As to suits as Loan Commissioners, Plumtree v. Dratt, 41 Barb. 333. § 142, p. 192 c. It is too late at the trial to object that the complaint and summons vary as to the cause of action. (Willet v. Stewart, 43 Barb. 98.) It seems, that in all cases where the notice in the summons is under subd. 2 of section 129, the plaintiff is at liberty to declare for any cause of action. (Hemson v. Decker, 29 How. 385.) § 142, p. 195 v. That "plaintiff was compelled to and did pay under protest and by compulsion," is a conclusion of law. (Com'l B'k v. City of Rochester, 41 Barb. 341.) § 142, p. 197 a. Add, at end of paragraph, Cahill v. Palmer, 17 Abb. 200. § 142, p. 203. The people of the State to maintain an action must show an interest in the subject-matter. (The People v. Booth, 32 N. Y. 397.) § 142, p. 207. Bail, complaint against. (Clapp v. Schutt, 44 Barb. 9.) B |
