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city of New York, and of the court of common pleas for the city and county of New York, shall meet in general session at the capital in the city of Albany, on the first Wednesday in August, 1852, and every two years thereafter ; and at such sessions shall revise their general rules, and make such amendments thereto, and such further rules not inconsistent with this code, as may be necessary to carry it into full effect. The rules so made shall govern the supreme court, the superior court of the city of New York, the court of common pleas for the city and county of New York, and the county courts, so far as the same may be applicable.

See Laws 1870, ch. 408, § 13.

§ 471. (Am'd 1849, 1852, 1862, 1863.)

This act not to affect certain proceedings and statutory provisons. Mandamus. .

Until the legislature shall otherwise provide, the second part of this act shall not affect proceedings upon mandamus or prohibition ; nor appeals from surrogates' courts, except that the costs on such appeal shall be regulated and allowed in the manner provided in section three hundred and eighteen of this act; nor any special statutory remedy not heretofore obtained by action ; nor any existing statutory provisions relating to actions not inconsistent with this act, and in substance applicable to the actions hereby provided ; nor any proceedings provided for by chapter five

i of the second part of the revised statutes, or by the sixth and eighth titles of chapter five of the third part of those statutes, or by chapter eight of the same part, excluding the second and twelfth titles thereof, or by the first title of chapter nine of the same part; except that when in consequence of any such proceeding a civil action shall be brought, such action shall be conducted in conformity to this act; and except, also, that where any particular provision of the titles and chapters enumerated in this section shall be plainly inconsistent with this act, such provision shall be deemed repealed.

In actions or proceedings by mandamus, amendments of any inistakes in the process, pleadings or proceedings therein may be allowed, and shall be made in conformity to the provisions of chapter six, title six [SS 169, 177], of the second part of the code of procedure.

See Laws 1859, ch. 174.


a. This section has not affected the measure of a sheriff's liability for the escape of a person committed on a a, 89, as declared by 2 R 8. 437, $ 66, [63] (Renwick v. Orser, 4 Bosw. 384; McCreery v. Willett, id. 643 ; Daguerre v. Orser, 15 AL 113).

b. The following are the provisions of the revised statutes referred to in this section as not affected by the second part of the code:

Ch. V. Pt. 2, of the Revised Statutes (2 R. S. 1). Tit, 1., ART. 1. Of attachment against absconding, concealed, and non

resident debtors. 2. Of attachments against debtors confined for crime. 3. Of voluntary assignment made pursuant to the applica

tion of an insolvent and his creditors. 4. Of proceedings by creditors to comp«l assignments by

debtors imprisoned on execution in civil causes. 5. Of voluntary assignments by an insolvent for the purpose

of exonerating his person from imprisonment. 6. Of voluntary assignments by a debtor imprisoned on exe

cution in civil causes (Laws 1857, ch. 427). 7. General provisions applicable to proceedings under the

several preceding articles. 8. Of the powers, duties, and obligations of trustees as as

signees under this title. 9. Provisions respecting assignees under former insolvent

laws. 10. Provisions of the "act to abolish imprisonment for debt

and to punish fraudulent debtors,” passed April 26th, 1831, other than those which relate to justices' courts,

(6 How. 348). Tit. 2. Of the custody and disposition of the estates of idiots, lunatics,

persons of unsound mind, and drunkards.

Ch. V. Pt. 3, of the Revised Statutes. Tit. 6. Of trespass on land. 8. Proceedings to discover the death of persons upon whose lives any particular estate may depend.

Ch. VIII. Pt. 3, of the Revised Statutes. Tit. 1. Of the bringing and maintaining suits by poor persons (14 How.

16; 18 How. 464). 3. Of suits by and against executors and administrators, and against

heirs, devisees, and legatees (10 How. 217, 532; Laws 1859, ch.

110, 261; 10 Barb 247). 4. Of proceedings by and against corporations and public bodies

having certain corporate powers, and by and against officers representing them (and joint stock companies] (11 How. 186–29;

10 id. 1-487). 5. Of suits against sheriffs, surrogates, and other officers, on their offi

cial bonds. 6. Of actions for penalties and forfeitures, and provisions for the col

lection and remission of forfeited recognizances and fines im

posed by courts (see 5 Abb. 384; 8 How. 431). 7. Of proceedings for the admeasurement of dower. 8. Of proceedings for the collection of demands against ships and

vessels (and mechanic's liens) (Laws 1859, ch. 79; Laws 1862,

p. 956). 9. Of proceedings for the recovery of rent and of demised premises. 10. Of summary proceedings to recover the possession of land in cer

tain cases (5 N. Y. 383; Laws of 1857, ch. 684).

Tit. 11. Of distraining cattle and other chattels doing damage, and of dis

training in other cases. 13. Of proceedings as for contempts, to enforce civil remedies, and to

protect the rights of parties in civil actions (1 Duer, 512; 2 Sand.

724). 14. Of arbitrations. 15. Of the foreclosure of mortgages by advertisement (Laws of 1857,

ch. 308). 16. Of proceedings for draining of swamps, marshes, and other low

lands. 17. General miscellaneous provisions concerning suits and proceed

ings in civil cases.
18. Proceedings to change the names of parties (Laws 1860, ch. 80).

Ch. IX. of Pt. 3, of the Revised Statutes.
Trr. 1. Of the writs of habeas corpus and certiorari in certain cases.

a. The provisions of the revised statutes “of proceedings by and against corporations in courts of law” (2 R. S. Part III., Tit. 4, Art. 1), remain in force, though probably the pleadings and practice, except where otherwise specially provided, should be under the code” (Bank of Commerce v. Rutland R. R. Co. 10 How. 5).

b. This section (471) declared that the code should not apply to proceedings on forfeited rocognizances; but by Laws of 1855, ch. 202, p. 305, it is enacted ($ 1) that all the provisions of the code are to apply to all recognizances forfeited in any court of general sessions or of oyer and terminer; and ($ 2) all laws or parts of laws or provisions of statutes in any wise conflicting with such application of the provisions of the code to said forfeited recognizances, are repealed.

c. This section preserves the petition for admeasurement of dower, but a party may either adopt the petition or the summons and complaint (Torensend v. Torensend, 2 Sand. 713); and 88 24 and 25 of 2 R. S. 617, are retained by this section (Murray v. Haskins, 4 How. 263; and see note to § 303); and 2 R. S. 252, $$ 74, 75, are retained by the code (McGoran v. Morrow, 3 Code Rep. 9).

See also $$ 108, 109, 449, and Supreme Court Rule 89.

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$ 472. Certain parts of revised and other statutes not repealed.

Nothing in this act contained shall be taken to repeal section 23 of article 2 of title 5 of chapter 6, part third, of the revised statutes, or to repeal an act to extend the exemption of household furniture and working tools from distress for rent and sale under execution, passed April 11, 1842.

$ 473. (Am'd 1849.) This act, when to take effect.

This act shall take effect on the first day of July, 1848, except that SS 22, 23, 24, and 25 shall take effect immediately.






RULE I.-The return.

When the appeal is from a judgment, the return of the clerk of the court below shall consist of certified copies of the notice of appeal, and the judgment-roll. When the appeal is from such an order as is mentioned in the eleventh section of the code of procedure, the return shall consist of certified copies of the notice of appeal, the order appealed from, and the papers on which the court below acted in making the order.

a. No general rule or order of the court of appeals, or of the supreme court shall be of any force or effect until it shall have been published in the newspapers at Albany in which legal notices are by law required to be published, once in each week for three successive weeks (Laws of 1847, cap. 470, p. 639, 4].

RULE II.-Appellant to file return; effect of his omission.

The appellant shall cause the proper return to be made and filed with the clerk of this court, within twenty days after the appeal shall be perfected. If he fail to do so, the respondent may, by notice in writing, require such return to be filed within ten days after service of the notice ; and if the return be not filed in pursuance of such notice, the appellant shall be deemed to have waived the appeal; and on an affidavit proving that the appeal was perfected, and the service of such notice, and a certificate of the clerk that no return has been filed, the respondent may enter an order with the clerk dismissing the appeal for want of prosecution, with costs; and the court below may thereupon proceed as though there had been no appeal.

See note to sections 328, 339 of Code.

b. An affidavit of the respondent is sufficient to prove when the appeal was perfected. Unless the respondent can show some delay or inconvenience in

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