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is required by law to be done, must be computed, by excluding the PART II. first, and including the last day; except where it is otherwise specially prescribed by law. If the last day is Sunday, or a public holiday, it must be excluded. Where the act is required to be done within two days, and an intervening day is Sunday, or a public holiday, it must also be excluded.

[Co. Proc., § 407, amended by adding the words, "or a public holiday," in the second, and the whole of the concluding sentence. See Anonymous, 2 Hill, 375. This mode of computation does not apply, where the statute says "after the expiration of" a particular time. Marvin v. Marvin, 75 N. Y., 240.]

ARTICLE FIFTH.

GENERAL REGULATIONS RESPECTING BONDS AND UNDERTAKINGS.

undertak

ings, etc.,

must be acknowl

810. [Amended, 1877.] A bond or undertaking, given in an Bonds, action or special proceeding, as prescribed in this act, must be acknowledged or proved, and certified, in like manner as a deed to edged. be recorded.(*)

[New. This section, which corresponds to part of Rule 5, renders unnecessary the repetition of numerous provisions of the statutes, wherein a similar direction is given, with respect to the particular bond, etc., therein treated of.]

not join

with his

when one is

sument.

§ 811. Where a provision of this act requires a bond or under- Party need taking, with sureties, to be given by, or in behalf of, a party or other sureties; person, he need not join with the sureties in the execution thereof, unless the provision requires him to execute the same; and the execution thereof by one surety is sufficient, although the word, sureties," is used, unless the provision expressly requires two or more sureties.(*)

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[New; but in accordance with the construction, given to various provisions of the Code of Procedure, by numerous cases.]

Form of

undertak

davit of sureties;

§ 812. A bond or undertaking, executed by a surety or sureties, bond or as prescribed in this act, must, where two or more persons execute ing; affit, be joint and several in form; and, except as otherwise expressly approval prescribed by law, it must be accompanied with the affidavit of each judge. surety, subjoined thereto, to the effect, that he is a resident of, and a householder or freeholder within, the State, and is worth the

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by court or

JUSTICE'S

MANUAL penalty of the bond, or twice the sum specified in the undertaking, over all the debts and liabilities, which he owes or has incurred, and exclusive of property, exempt by law from levy and sale under an execution. A bond or undertaking given by a party, without a surety, must be accompanied by his affidavit, to the same effect. The bond or undertaking, except as otherwise expressly prescribed by law, must be approved by the court, before which the proceeding is taken, or a judge thereof, or the judge, before whom the proceeding is taken. The approval must be indorsed upon the bond or undertaking.(a)

When several sureties may justify,

each in a

smaller sum.

Bonds, etc., to

the people

officer for

of a suitor.

[New; designed to include the essential provisions of 2 R. S., 190, Part 3, ch. 1, tit. 2, § 148 (2 Edm., 198), and various other provisions of the statutes and Rules.]

§ 813. But where the penalty of the bond, or twice the sum specified in the undertaking, is twenty thousand dollars, or upwards, the court or judge may, in its or his discretion, allow the sum, in which a surety is required to justify, to be made up by the justification of two or more sureties, each in a smaller sum. But, in that case, a surety cannot justify in a sum less than ten thousand dollars and, where two or more sureties are required by law to justify, the same person cannot so contribute to make up the sum, for more than one of them.

[New; designed to provide for certain cases of hardship, which are very likely to occur, in accordance with the principle of the last clause of Co. Proc., § 194. See, also, id., § 339. This section is so framed as to prevent a party, who is required to furnish two sureties, justifying in thirty thousand dollars each, from furnishing, for instance, one to justify in fifty thousand dollars, and two in five thousand dollars each.](*)

§ 814. Where a bond or undertaking has been given, as prescribed or a public by law, in the course of an action or special proceeding, to the people the benefit or to a public officer, for the benefit of a party or other person interested, and provision is not specially made by law for the prosecution thereof; the party or other person, so interested, may maintain an action in his own name, for a breach of the condition of the bond, or of the terms of the undertaking; upon procuring an order, granting him leave so to do. The order may be made by the court, in which the action is or was pending; or by a superior city court,

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the marine court of the city of New-York, or a county court, if the bond or undertaking was given in a special proceeding, pending before a judge of that court; or, in any other case, by the supreme court. Notice of the application therefor must be given, as directed by the court or judge, to the persons interested in the disposition of the proceeds.(*)

[New.

There are various cases within the terms of this section, which appear to have been hitherto unprovided for. ]

§ 815. A bond or undertaking, given in an action or special proceeding, as prescribed in this act, continues in force, after the substitution of a new party in place of an original party, or any other change of parties; and has thereafter the same force and effect, as if then given anew, in conformity to the change of parties.(*)

[New; in accordance with the rule laid down, in Potter v. Van Franken, 36 N. Y., 619.]

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filed.

§ 816. A bond or undertaking, required to be given by this act, Id. to be must be filed with the clerk of the court; except where, in a special case, a different disposition thereof is directed by the court, or prescribed in this act.(*)

[Co. Proc., § 423, with no material change, except the omission of the provision as to filing undertakings given for replevin, which is one of the "special cases ", and is provided for, in ch. 15 of this Code. See, as to filing papers in justices' courts, § 3134.](')

ARTICLE SIXTH.

OTHER MATTERS.

special

ings

where to

be filled.

§ 825. A return or other paper in a special proceeding, where no Papers in other disposition thereof is prescribed by law, must be filed, and an proceedorder therein must be entered, with the clerk of the county in which the special proceeding is taken, if it is before a county officer, or a judge of a court established in a city; if before a justice of the supreme court, with the clerk of a county designated by the justice; or, if no designation is made by him, of a county where one of the parties resides.(*)

[L. 1847, ch. 470, § 20 (4 Edm., 584), extended so as to include judges of city courts. See § 3347, subd. 6, post. This section is qualified, as to proceedings before justices of the peace by § 3134.] ()

213

JUSTICE'S
MANUAL.

Publica

no news

paper,

etc., in county.

§ 826. [Amended, 1877.] Where a notice, or other proceeding, is tion, where required by law to be published in a newspaper published in a county, and no newspaper is published therein, or to be published oftener than any newspaper is regularly published therein, the publication may be made in a newspaper of an adjoining county, except where special provision is otherwise made by law. (*)

[2 R. S., 552, Part 3, ch. 8, tit. 17, § 10 (3 R. S., 5th ed., 866 ; 2 Edm., 572.]

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(a) Applied to justices' courts by § 3347, subd. 6, post.

PART IL

CHAPTER IX.

(EXTRACTS.)

EVIDENCE.

PRELIMINARY NOTE.-L. 1880, ch. 36, allowing the comparison of handwritings by witnesses, and their testimony relating thereto, applies to justices' courts.

TITLE I.

General regulations respecting evidence, and the competency and mode of examination of a witness.

ARTICLE 1. Competency of a witness; evidence in particular cases. 2. Administration of an oath or affirmation.

ARTICLE FIRST.

COMPETENCY OF A WITNESS; EVIDENCE IN PARTICULAR CASES

No witness

cluded

by

interest,

§ 828. Except as otherwise specially prescribed in this title, a per- to be ex son shall not be excluded or excused from being a witness, by reason reason of of his or her interest in the event of an action or special proceeding; etc. or because he or she is a party thereto; or the husband or wife of a party thereto, or of a person in whose behalf an action or special proceeding is brought, prosecuted, opposed, or defended.

[Co. Proc., § 398; and L. 1867, ch. 887, § 1 (7 Edm., 198).]

party,

not be

examined.

§ 829. [Amended, 1877.] Upon the trial of an action or the hear- When ing upon the merits of a special proceeding, a party or a person inter- etc. canested in the event, or a person from, through or under whom such a party or interested person derives his interest or title, by assignment or otherwise, shall not be examined as a witness, in his own behalf or interest, or in behalf of the party succeeding to his title or interest, against the executor, administrator, or survivor of a deceased per

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