Law providing for grading of certain officers valid. People ex rel. White v. York, 35 App. Div. 300. See, also, People ex rel. Percival v. Cram, 164 N. Y. 166.

Organization of cities and villages-It shall be the duty of the Legislature to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assessments, and in contracting debt by such municipal corporations. (N. Y. Constitution, art. 12, sec. 1.)

Section 9 of article VIII of the amended Constitution of 1846, without change. Am'd in 1905 by adding provision for regulation of wages, etc., of employees of villages, etc.

This provision is merely a direction to the Legislature for the exercise of a power which had been restricted by former Constitution. Bank of Chenango v. Brown, 26 N. Y. 467.

This section authorizes the Legislature to restrict the power of incurring indebtedness by municipal corporations, and the degree of such restriction is in the discretion of the Legislature. Sweet v. City of Syracuse, 129 N. Y. 316, 331.

The Legislature is not prohibited from authorizing a municipal corporation to incur an indebtedness of a new and unusual character. Bank of Rome v. City of Rome, 18 N. Y. 38; Grant v. Courter, 24 Barb. 232; Benson v. Mayor of Albany, id. 248.

By this section local legislative powers may be delegated to villages and cities. Consumers' Gas Co. v. Spring Co., 61 Hun, 135; Wallerstein v. Judge, 24 N. Y. St. Repr. 814.

CODE OF CIVIL PROCEDURE-MISCELLANEOUS

PROVISIONS.

§ 426. [Am'd, 1879.] How personal service of summons made upon a natural person.

Personal service of the summons upon a defendant, being a natural person, must be made by delivering a copy thereof, within the state, as follows:

1. If the defendant is an infant, under the age of fourteen years, to his father, mother or guardian; or, if there is none within the state, to the person having the care and control of him, or with whom he resides, or in whose service he is employed. If the defendant is an infant over the age of fourteen years, to the infant in person, and also to his father, mother or guard. ian; or, if there is none within the state, to the person having the care and control of him, or with whom he resides, or in whose service he is employed. Where the defendant is an infant under the age of fourteen years, the court shall, in the defendant's interest, make an order, requiring a copy of the summons to be also delivered, in behalf of the defendant, to a person designated in the order, and that service of the summons shall not be deemed complete until it is so delivered. Where the defendant is an infant over the age of fourteen years a similar order may be made by the court in its discretion, with or without application therefor.

Amended by L. 1913, ch. 279. In effect Sept. 1, 1913.

§ 843. [Am'd, 1877.] Oaths and affidavits; in special cases.

Where an officer, person, board, or committee, has been heretofore, or is hereafter authorized by law, to take or hear testimony or to hear or receive an affidavit, or to take a deposition, in relation to a matter, concerning which he or it has a duty to perform, the officer or person, or a member of the board or committee, may administer an oath, for that purpose. Where an officer, person, board, or committee, to whom or to which application is made to do an act in an official capacity, requires information or proof, to enable him or it to decide upon the propriety of doing the act, he or it may receive an affidavit for that purpose.

§ 844. Id.; without the state.

An oath or affidavit required, or which may be received, in an action, special proceeding, or other matter, may be taken, without the state, except where it is otherwise specially prescribed by law, before an officer authorized by the laws of the state, to take and certify the acknowledgment and proof of deeds, to be recorded in the state; and, when certified by him to have been taken before him, and accompanied with the like certificates, as to his official character and the genuineness of his signature, as are required to entitle a deed acknowledged before him to be recorded within the state, may be used, as if taken and certified in this state, by an officer authorized by law to take and certify the same.

§ 845. [Am'd, 1899.] General mode of swearing.

Except as otherwise specially prescribed in this article, when an oath is administered, the witness shall lay his hand on the gospels and express assent to the oath, and it shall be according to the present practice except that the witness need not kiss the gospels.

§ 846. [Am'd, 1899.] When kissing the gospels dispensed with.

The oath must be administered in the following form, to person who so desires, the laying of the hand upon the gospels being omitted: "You do swear, in the presence of the ever-living God." While so swearing, he may or may not hold up his hand, at his option.

§ 847. When affirmation to be made.

A solemn declaration or affirmation, in the following form, must be administered to a person who declares that he has conscientious scruples against taking an oath, or swearing in any form: "You do solemnly, sincerely, and truly, declare and affirm."

§ 849. Swearing persons not Christians.

A person believing in a religion, other than the Christian, may be sworn, according to the peculiar ceremonies, if any, of his religion, instead of as prescribed in section eight hundred and forty-five or section eight hundred and forty-six of this act.

§ 850. Court may examine witness.

The court or officer may examine an infant, or a person apparently of weak intellect, produced before it or him, as a witness, to ascertain his capacity and the extent of his knowedge; and may inquire of a person,

produced as a witness, what peculiar ceremonies in swearing he deems most obligatory.

§ 852. Mode of serving subpoena issued out of a court.

A subpoena, issued out of the court, to compel the attendance of a wit ness, and, where the subpoena so requires, to compel him to bring with him a book or paper, must be served as follows:

1. The original subpoena must be exhibited to the witness.

2. A copy of the subpoena, or a ticket containing its substance, must be delivered to him.

3. The fees, allowed by law, for traveling to, and returning from, the place where he is required to attend, and for one day's attendance, must be paid or tendered to him.

§ 853. Penalty for disobedience.

A person so subpoenaed, who fails, without reasonable excuse, to obey the subpoena, or a person who fails, without reasonable excuse, to obey an order, duly served upon him, made by the court, or a judge, in an action, before or after final judgment therein, requiring him to attend, and be examined, or so to attend, and bring with him a book or paper, is liable, in addition to punishment for contempt, for the damages sustained by the party aggrieved in consequence of the failure, and fifty dollars in addition thereto. Those sums may be recovered in one action, or in separate actions. If he is a party to the action in which he was subpoenated, the court may, as an additional punishment, strike out his pleading.

§ 854. [Am'd, 1900.] Subpoena to be issued by judge, etc.

When a judge, or an arbitrator, referee, or other person, or a board or committee, or a committee of either house of the legislature, or a joint committee thereof, duly empowered by resolution or act to sit and take testimony during the session thereof, or after the adjournment thereof, has been heretofore or is hereafter expressly authorized by law to hear, try, or determine a matter, or to do any other act in an official capacity, in relation to which proof may be taken, or the attendance of a person as a witness may be required; or to require a person to attend, either before him or it, or before another judge, or officer, or a person designated in a commission issued by a court of another state or country, to give testimony, or to have his deposition taken, or to be examined; a subpoena may be issued, by and under the hand of the judge, arbitrator, referee, or other person, or the chairman or a majority of the board or committee, requiring the person to attend; and also, in a proper case, to bring with him a book or a paper. The subpoena must be served, as prescribed in section eight hundred and fiftytwo of this act. This section does not apply to a matter arising, or an act to be done, in an action in a court of record.

§ 926. [Am'd, 1877.] Affidavit of printer, etc., evidence.

The affidavit of the printer or publisher of a newspaper, published within the state, or his foreman or principal clerk, showing the publication of a notice or other advertisement, authorized or required, by a law of the state, to be published in hat neswpaper, annexed to a printed copy of the notice or other advertisement, may be read in evidence; and is presumptive evi

dence of the publication, and, also, of the matters stated therein, showing that the deponent is authorized to make the affidavit. But this section does not apply to a case, where the affidavit is required by law to be filed, unless it has been duly filed; or to a case, where the mode of proving a publication is otherwise specially prescribed by law.

§ 941. [Am'd, 1894.] Ordinances, etc., of cities, villages, etc.

An act, ordinance, resolution, by-law, rule or proceeding of the common council of a city, or of the board of trustees of an incorporated village, or of a local board of health of a city, town or incorporated village or of a board of supervisors, within the state, may be read in evidence, either from a copy thereof, certified by the city clerk, village clerk, clerk of the common council, clerk or secretary of the local board of health, or clerk of the board of supervisors; or from a volume printed by authority of the common council of the city, or the board of trustees of the village or the local board of health of the city, town or village, or the board of supervisors.

§ 1667. Action for cutting, etc., trees.

If any person cuts down or carries off any wood, underwood, tree, or timber, or girdles or otherwise despoils a tree on the land of another, without the owner's leave; or on the common, or other land, of a city, village, or town, without having right or privilege in those lands, or license from the proper officer; an action may be maintained against him, by the owner, or the city, village, or town, as the case may be.

§ 1668. Id.; when treble damages may be recovered.

In an action brought as prescribed in the last section, the plaintiff may state in his complaint the amount of his damages, and demand judgment for treble the sum, so stated. Thereupon, if the inquisition, or, where issues of fact are tried, the verdict, report or decision, awards him any damages, he is entitled to judgment for treble the sum so awarded, except that in either of the following cases, judgment must be rendered for single damages only

1. Where the verdict, report, or decision finds affirmatively that the injury, for which the action was brought, was casual and involuntary; or that the defendant, when he committed the injury, had probable cause to believe that the land was his own.

2. Where the defendant has pleaded, and the verdict, report, or decision finds affirmatively, that the injury, for which the action was brought, was committed by taking timber, for the purpose of making or repairing a public road, or a public bridge, or by taking any wood, underwood, or tree, for a like purpose, by authority of a commissioner or overseer of highways.

§ 1897. Indorsement upon summons.

In an action to recover a penalty or forfeiture, given by a statute, if a copy of the complaint is not delivered to the defendant with a copy of the summons, a general reference to the statute must be indorsed upon the copy of the summons so delivered, in the following form: “According to the provisions of," etc.; adding such a description of the statute, as will identify it with convenient certainty, and also specifying the section, if penalties or

forfeitures are given, in different sections thereof, for different acts or omissions.

§ 1926. [Am'd, 1897.] Actions by certain specified officers.

An action or special proceeding may be maintained, by the trustee or trustees of a school district; the overseer or overseers of the poor of a village, or city; the county superintendent or superintendents of the poor; or the supervisors of a county, upon a contract, lawfully made with those officers or their predecessors, in their official capacity; to enforce a liability created, or a duty enjoined, by law, upon those officers, or the body represented by them; to recover a penalty or a forfeiture, given to those officers, or the body represented by them; or to recover damages for an injury to the property or rights of those officers, or the body represented by them; although the cause of action accrued before the commencement of their term of office.

§ 3357. Title.

This title shall be known as the condemnation law.

§ 3358. [Am'd, 1896.] Definitions.

The term person," when used herein, includes a natural person and also a corporation, joint-stock association, the state and a political division thereof, and any commission, board, board of managers or trustees in charge or having control of any of the charitable or other institutions of the state; the term "real property," any right, interest or easement therein or appurtenances thereto; and the term owner," all persons having any estate, interest, or easement in the property to be taken, or any lien, charge, or incumbrance thereon. The person instituting the proceedings shall be termed the plaintiff; and the person against whom the proceeding is brought, the defendant.

§ 3359. Proceedings to be taken as prescribed in this title.

Whenever any person is authorized to acquire title to real property, for a public use by condemnation, the proceeding for that purpose shall be taken in the manner prescribed in this title.

§ 3360. Petition; what to contain.

The proceeding shall be instituted by the presentation of a petition by the plaintiff to the supreme court, setting forth the following facts:

1. [Am'd, 1896.] His name, place of residence, and the business in which engaged; if a corporation or joint-stock association, whether foreign or domestic, its principal place of business within the state, the names and places of residence of its principal officers, and of its directors, trustees or board of managers, as the case may be, and the object or purpose of its incorporation or association; if a political division of the state, the names and places of residence of its principal officers; and if the state, or any commission or board of managers or trustees in charge or having control of any of the charitable or other institutions of the state, the name, place of resi dence of the officer acting in its or their behalf in the proceedings.

2. A specific description of the property to be condemned, and its location, by metes and bounds, with reasonable certainty.