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JUSTICE'S
MANUAL.

Parties to
a civil
action.

Only one form of civil action.

Rule of construc

tion as to

certain special

relating to

§ 3338. The party prosecuting a civil action is styled the plaintiff ; the adverse party is styled the defendant.

[Co. Proc., § 70.]

§ 3339. There is only one form of civil action. The distinction between actions at law and suits in equity, and the forms of those actions and suits, have been abolished.

[Co. Proc., § 69.]

§ 3341. Each provision of this act is to be construed as not affecting any special provision of the statutes, remaining unrepealed after provisions the former provision takes effect, which is applicable exclusively to New-York an action against the mayor, aldermen, and commonalty of the city of New-York, including the recovery, entry, and collection of a judgment in such an action.

city.

Miscellaneous

general

[L. 1876, ch. 449, § 10, and see L. 1865, ch. 646, §§ 1866, ch. 876, § 10; L. 1867, ch. 586, § 6; L 1868, ch. 1869, ch. 876, § 14; L. 1870, ch. 382, § 2, L. 1871, ch. 1872, ch. 514, § 1.]

4 and 5; L 853, § 8; L. 583, § 5; L

§ 3343. In construing this act, the following rules must be obdefinitions served, except where a contrary intent is expressly declared in the provision to be construed, or plainly apparent from the context thereof:

and rules

of con

struction.

1. The "superior city courts" are, collectively, the court of common pleas for the city and county of New-York, the superior court of the city of New-York, the superior court of Buffalo, and the city court of Brooklyn.

2. The word, "mandate", includes a writ, process, or other writ ten direction, issued pursuant to law, out of a court, or made pursuant to law, by a court, or a judge, or a person acting as a judicial officer, and commanding a court, board, or other body, or an officer, or other person, named or otherwise designated therein, to do, or to refrain from doing, an act therein specified.

3. The word, "judge ", includes a justice, surrogate, recorder, justice of the peace, or other judicial officer, authorized or required to act, or prohibited from acting, in or with respect to the matter or thing, referred to in the provision wherein that word is used.

4. The word, "clerk ", signifies the clerk of the court, wherein the action or special proceeding is brought, or wherein, or by whose authority, the act is to be done, which is referred to in the provision in which it is used. If the action or special proceeding is brought, or the act is to be done, in or by the authority of the supreme court, it signifies the clerk of the county wherein the action or special proceeding is triable, or the act is to be done.

5. The word, "report", when used in connection with a trial, or other inquiry, or a judgment, means a referee's report; and the word, "decision", when used in the same connection, means the decision of the court upon a hearing, or the trial of an issue, before the court, without a jury.

6. The words, "real property", are co-extensive with lands, tenements, and hereditaments.

7. The words, "personal property ", include money, chattels, things in action, and evidences of debt. The word, "chattel", is co-extensive with goods and chattels.

8. The word, "property ", includes real and personal property.

9. A "personal injury" includes libel, slander, criminal conversation, seduction, and malicious prosecution; also an assault, battery, false imprisonment, or other actionable injury to the person either of the plaintiff, or of another.

10. An "injury to property" is an actionable act, whereby the estate of another is lessened, other than a personal injury, or the breach of a contract.

11. The word, "affidavit", includes a verified pleading in an action, or a verified petition or answer in a special proceeding.

12. A warrant of attachment against property is said to be "annulled", when the action, in which it was granted, abates or is discontinued; or a final judgment, rendered therein in favor of the plaintiff, is fully paid; or a final judgment is rendered therein in favor of the defendant. But, in the case last specified, a stay of proceedings suspends the effect of the annulment, and the reversal or vacating of the judgment revives the warrant.

13. The term, "judgment creditor,", signifies the person who is entitled to collect, or otherwise enforce, in his own right, a judg

PART II.

MANUAL ment for a sum of money, or directing the payment of a sum of

JUSTICE'S

money.

14. A "judgment creditor's action" is an action brought as prescribed in article first of title fourth of chapter sixteenth of this act, or any other action, brought by a judgment creditor to aid the collection of a judgment for a sum of money, or directing the payment of a sum of money.

15. The words, "lunacy", and "lunatic", embrace every description of unsoundness of inind, except idiocy.

16. A "distinct parcel" of real property is a part of the property, which is or may be set off by boundary lines, as distinguished from an undivided share or interest therein.

17. The word, "territory", when applied to a portion of the United States, without the State, includes the District of Columbia. 18. A "domestic corporation" is a corporation created by or under the laws of the State; or located in the State, and created by or under the laws of the United States, or by or pursuant to the laws, in force in the colony of New-York, before the 19th day of April, in the year 1775. Every other corporation is a "foreign corporation".

19. The terms, " trial juror", and "trial jury", are respectively equivalent to the terms, "petit juror ", and "petit jury", as used in the constitution and laws of the State. The word, "notify", as used, with respect to procuring the attendance of a juror, is equivalent to the word, "summon ", as used in the like connection, in the same constitution and laws.

20. The word, "action", refers to a civil action; the word, "judg ment", to a judgment in such an action; the term, "special proceeding" to a civil special proceeding; the word, “order”, to an order made in such an action or special proceeding; the words, "an action of ejectment", to an action to recover the immediate possession of real property.

21. The term, "public holiday", includes each of the following days, to wit: the first day of January; the twenty-second day of February; the thirtieth day of May; the fourth day of July; the twenty-fifth day of December; unless either of those days falls upon Sunday, and, in that case, the next day thereafter; also each general

election day; and each day, appointed by the President of the United States or the Governor of the State, as a day of general thanksgiving, general fasting and prayer, or other general religious

observance.

22. Each of the words, "now", "heretofore", and "hereafter", refers to the time when the provision containing it takes effect.

23. Where an instrument, specified in this act, is described as, or expressly required to be, written or printed, it may be partly written and partly printed.

24. The word, "folio", signifies one hundred words, counting as a word each figure necessarily employed.

[L. 1876, ch. 449, § 2.]

PART II.

TITLE II.

Provisions regulating the effect and application of this act.

Short title

of this

§ 3344. This act constitutes a portion of the New Revision of the Statutes. It may be styled, in any act of the legislature or proceed- act. ing in a court of justice, or wherever it is otherwise referred to, "The Code of Civil Procedure ".

[L. 1876, ch. 449, § 1.]

§ 3345. The rule of the common law, that a statute in derogation of the common law is strictly construed, does not apply to this act. [Co. Proc., § 467.]

[blocks in formation]

ment of

crimes

demeanors

thereby.

§ 3346. Where it is prescribed, in a provision of this act, that a Punishperson doing or omitting to do any act is guilty of a particular and miscrime, or, generally, of a misdemeanor, he shall be punished there- created for in the manner and to the extent, prescribed by the statutes remaining unrepealed after the provision in question takes effect, for the punishment of the crime so specified; or for the punishment of a misdemeanor, the punishment of which is not specially prescribed in the statute defining it.

[New.]

JUSTICE'S
MANUAL.

Applica

tion of certain

$3347. The application and effect of certain portions of this act are declared and regulated as follows; except that, where a particular provision, included within a chapter or a portion of a chapter, and quali- specified in a subdivision of this section, expressly designates the

portions thereof, regulated

fied

courts, persons, or proceedings, affected thereby, that provision is deemed excluded from the application and effect, prescribed in the subdivision:

1. In chapter second, the prisoners referred to are civil prisoners only, except that section 122, and article third of title second thereof, apply to all prisoners, civil or criminal.

2. In chapter third, sections 303, 304, 305, and 306 apply to trial jurors upon the trial of an indictment or other criminal cause; as prescribed in subdivision seventh of this section, with respect to the application of titles third and fourth of chapter tenth, and as specified in the next two sections.

3. In chapter fifth, sections 446, 449, 450, 454, 455, and 458 to 468, both inclusive, apply to an action commenced, in any court of the State, on or after the first day of September, 1877.

4. The remainder of chapter fifth, and the whole of chapter sixth, apply only to an action commenced, on or after the first day of September, 1877, in the supreme court, a superior city court, the marine court of the city of New-York, or a county court.

5. Chapter seventh, excluding section 548, and articles first and second of title fourth thereof, applies only to an action, in one of the courts specified in subdivision fourth of this section, in which an application for an order of arrest, an injunction order, or a warrant of attachment against property, is made, on or after the first day of September, 1877. Articles first and second of title fourth of that chapter apply only to proceedings taken, in one of those courts, on or after that date.

6. Chapter eighth applies only to the proceedings taken on or after the first day of September, 1877, in an action or special proceeding in one of the courts specified in subdivision fourth of this section; except that sections 721, 722, 724 to 727, both inclusive, and 817 to 819, both inclusive, apply to all courts of record; sections 728, 729, 730, 749, 787, 788, 810 to 816, both inclusive, and 826, to proceedings, taken, on or after that day, in any court or

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