of conviction of such a juror or witness, or of any person for contempt, in any case where a fee therefor is not specially prescribed by law, fifty cents. For an execution upon such a conviction before him, twenty-five cents. For drawing, copying, and certifying a bond, an undertaking, a recogniz ance, or other written security, and filing the same with the county clerk, or other officer with whom it must be filed, twenty-five cents.

For a warrant of commitment for any cause, twenty-five cents.

For a subpoena, including all the names inserted therein, twenty-five

cents.

For a precept to notify a jury, fifty cents.

For empanelling and swearing a jury, twenty-five cents; except in proceedings to alter or lay out a highway, in which case he is entitled to two dollars.

For hearing the matter, concerning which a jury is called, fifty cents. For receiving and entering the verdict of the jury, and the order, if any, thereupon, twenty-five cents.

For any service for which a fee is not expressly allowed by this subdivision, and for which, if rendered in an action before a justice, a fee is allowed by the first subdivision of this section, the fee allowed in such an action for the same service.

For taking the deposition of a witness, upon an order made, or commis. sion issued, by a court of record of the State, or a court in another state or a territory, or a foreign country, ten cents for each folio.

For making the necessary return and certificate thereto, fifty cents.
For taking an affidavit or administering an oath, ten cents.

§ 3323. A constable is entitled, for the services specified in this section, to the following fees:

1. In an action brought before a justice of the peace, or in a justices' court of a city.

For serving a summons, twenty-five cents.

For serving a summons and executing an order of arrest, one dollar. For serving a summons and levying a warrant of attachment, one dollar, For serving a summons and affidavit, and executing a requisition, in an action for a chattel, one dollar.

For serving an order, directing the action to be continued before a jus tice, other than the oue before whom it is pending, and for attending before the latter, fifty cents, and fifty cents in addition if he so attends with a person in his custody.

For collecting money by virtue of an execution, for every dollar collected, to the amount of fifty dollars, five cents; for every dollar collected over fifty dollars, two and one-half cents. Where a judgment or an execution is settled after a levy, the constable is entitled to poundage upon the sum at which the settlement is made, not exceeding the value of the property levied

upon.

For each mile necessarily travelled, going and returning, to serve a sum mons or to serve or execute any other mandate, except a venire, the dis tance to be computed from the place of abode of the person served, or the place where it is served, to the place where it is returnable, ten cents; but where two or more mandates in one action are served or executed upon one journey, or where a mandate is served upon or executed against two or more persons in one action, he is entitled, in al, to only ten cents for each mile necessarily travelled,

For notifying the plaintiff of the execution of an order of arrest, twenty five cents; and for going to the plaintiff's residence, or, if he is fund

elsewhere, to the place where he is found, to serve such a notice, for each mile travelled, going and returning, ten cents.

For subpoenaing each witness, not exceeding four, twenty-five cents.
For notifying the jurors to attend a trial, seventy-five cents.

For taking charge of a jury during their deliberations, fifty cents.

Where witnesses, not exceeding four, are subpoenaed by any person other than a constable, the fee therefor is ten cents each.

2. In a special proceeding.

For notifying jurors to attend to assess damages, in proceedings relating to highways, two dollars.

For notifying jurors to attend in any other case, unless a fee therefor is specially prescribed by law, for each person notified, ten cents; and for each mile actually and necessarily travelled, going from and returning to his place of residence, ten cents.

For serving a precept or other mandate, by which the special proceeding is commenced, twenty five cents.

For serving a warrant, in any case where a fee therefor is not specially prescribed by law, fifty cents.

For serving an order, directing the special proceeding to be continued before a justice other than the one before whom it is pending, and for attending before the latter, fifty cents, and fifty cents in addition if he so attends with a person in his custody.

For arresting and committing any person, pursuant to process, one dollar.

For subpoenaing each witness, not exceeding four, twenty-five cents.

For each mile necessarily travelled, going and returning, to serve or exe cute a mandate, the distance to be computed from the place where it is served or executed, to the place where it is returnable, unless a different rate of travel fees upon the service or execution thereof is specially prescribed by statute, ten cents. Where two or more mandates are served or executed in one special proceeding, the limitation upon the amount of travel fecs specified in the last preceding subdivision applies.

§3324. A constable who charges any travelling fees, must show, by affidavit, that the travel was necessary to perform the service with respect to which it is charged; that no more miles are charged for, than were actually and in good faith travelled for that purpose; that he had at the time no other official or private business upon the route so travelled; and that the travelling fees are charged upon one mandate only, which must be attached to or described in the affidavit. The justice taxing the fees must be satisfied that the miles charged for were actually and necessarily travelled, as stated in the affidavit.

§ 3325. A party recovering costs in an action before a justice of the peace, in whose behalf a commission has been issued, and who introduces in evidence a deposition taken thereunder, is entitled to recover his actual disbursements thereupon, not exceeding the following sums: commissioner's fees for taking and returning testimony, one dollar; each subpoena issued, or oath administered, by the commissioner, six cents; expense of serving each subpoena, twenty-five cents; each witness's fees for each day's attendance before the commissioner, twenty-five cents; postage for sending and returning the commission and papers annexed thereto, one dollar.

§ 3326. Except as otherwise specially prescribed by law, a person, notified to attend as a juror, is entitled to twenty-five cents, for attending and serving, upon the trial of an action or the hearing of a special proceeding,

before a justice of the peace; and to ten cents for attending to serve, where he is not sworn.

§ 3327. A witness is entitled to twenty-five cents, for each day's actual attendance, before a justice of the peace, in an action or a special proceed ing, or before a commissioner appointed by a justice of the peace, or before a justice of the peace taking a deposition to be used in a court, not of record, of another state, or a territory of the United States.

§ 3328. A justice of the peace, or a constable, juror, or witness, before. a justice of the peace, is not obliged to render any service specified in this title, without the previous payment or tender of his fee therefor.

§ 3329. In an action before a justice of the peace, if any services are rendered for a party, and he neglects to pay the fees allowed therefor by law, the other party may pay those fees, and the amount thereof must be taxed as part of his costs, if he recovers costs.

3330. The allowance of a fee, by this title, does not apply to a case, where special provision is otherwise made by statute for compensation for a particular service.

§ 3331. Where an officer has, when his title takes effect, commenced the performance of a service, for which a fee is allowed by the statutes heretofore in force, he is entitled to the fee so allowed, for the completion of that service, and he is not entitled to the fee for the same, or a corresponding service, allowed by this title.

§ 3332. Except as otherwise expressly prescribed therein, this title does not apply to a service rendered in a criminal action or special proceeding, in a court, or before an officer.

DEFINITIONS AND

CONSTRUCTION,
THIS ACT.

CHAPTER XXII.

REGULATIONS CONCERNING THE
EFFECT, AND APPLICATION OF

TITLE I. GENERAL DEFINITIONS, AND RULES OF CONSTRUCTION.
TITLE IL-PROVISIONS REGULATING THE EFFECT AND APPLICATION OF

THIS ACT.

TITLE I.

General definitions, and rules of construction.

3333. Definition of "action."
3334. Id.; "special proceeding."
3335. Division of actions into civil and

criminal.

8336. Definition of "criminal action." 3337. Id.; "civil action."

3338. Parties to a civil action.

3339. Only one form of civil action.

3340. Rule of construction as to publication, etc., in certain cases.

3341. Id.; as to certain special provisions relating to New York city.

3342. Id.; as to county court. Miscellaneous general definitions and rules of construction.

3343.

§ 3333. The word "action", as used in the New Revision of the Stat utes, when applied to judicial proceedings, signifies an ordinary prosecution, in a court of justice, by a party against another party, for the enforcement or protection of a right, the redress or prevention of a wrong, or the pun ishment of a public offence.

§ 3334. Every other prosecution by a party, for either of the purposes specified in the last section, is a special proceeding.

§ 3335. Actions are of two kinds :

1. Civil.

2. Criminal.

§ 3336. A criminal action is prosecuted by the people of the State, as a party, against a person charged with a public offence, for the punishment thereof.

§3337. Every other action is a civil action.

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

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

§ 3340. Each provision of this act, requiring the publication of a summons, notice, or other paper, in one or more newspapers, or authorizing or requiring a court, or a judge, to designate one or more newspapers, in which such a publication must be made, or requiring the posting of a notice or other paper, is to be construed as not affecting any special provision of the statutes, remaining unrepealed after the former provision takes effect, prescribing one or more particular newspapers, in which such a publication must or may be made, or one or more particular places, in which notices or other legal papers must or may be posted, in a particular locality, or in a particular case.

§ 3341. Each provision of this act is to be construed as not affecting any special provision of the statutes, remaining unrepealed after the former provision takes effect, which is applicable exclusively to 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.

§ 3342. Each provision of this act, conferring power upon, or authorizing a proceeding to be taken at, a general, special, or trial term, which is applicable to a county court, is to be construed as applying to any term of the county court, held pursuant to an appointment made as prescribed by law.

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

30

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 written 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 plaint iff, 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 annul ment, 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 judgment for a sum of money, or directing the payment of a sum of 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 mind, 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, " judgment," 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.