department, or portion of the State, which the defendant has, without right, obtained, received, converted, or disposed of; or to recover damages, or other compensation, for so obtaining, receiving, paying, converting, or disposing of the same; or the aiding or abetting thereof; is entitled, on the application of the Attorney-General, to a preference over any other business, at a term or sitting of any court of the State, irrespective of its place upon the calendar. ᎪᎡᎢ. 2. criminal § 790. A criminal action, including an appeal or other proceeding Id.; of in a criminal cause, is entitled, under the direction of the court, to actions. preference in the trial or hearing thereof, over all civil actions and special proceedings, except as prescribed in the last section. civil ac § 791. Civil causes are entitled to preference among themselves, in Id.; among the trial or hearing thereof, in the following order, next after the causes tions specified in the last section but one: 1. An action or special proceeding, in which the people of the State are parties, and appear by the Attorney-General; where the AttorneyGeneral has given notice, at the time of service of notice of trial or argument, of a particutar day in the term, on which he will move it. If the action or special proceeding is not moved by him for trial or argument on that day, or as soon thereafter, in the same term, as the court can hear it, the other party may then move the trial or argument; otherwise, it shall not be moved out of its order at that term, except by the special order of the court. 2. An action or special proceeding, in which a board of officers exercising powers conferred by a statute for the protection of public health, or public or private property, or for the prevention or punishment of violations of a statute relating to either of those subjects, or the commissioners of pilots in the city of New York are parties; where a notice, similar to the notice prescribed in the last subdivision, has been served by their attorney, at the time of service of the notice of trial or argument. The provisions of the last subdivision, relating to moving the trial or argument, apply to a cause within this subdivision. 3. In the court of appeals or the supreme court, an appeal taken by either party, in action or special proceeding other than as specified in subdivision first of this section, where the people of the State, or a board of State officers, are sole parties, or a State officer is a sole party, plaintiff or defendant. 4. In the court of appeals, an action, a party to which has died, pending the action, where the pendency of the action prevents a final settlement of the estate of the deceased party. 5. In any court, an action, in which an executor or administrator is the sole plaintiff or sole defendant; an action for the construction of, or an adjudication upon, a will, in which the administrator with the will annexed, or the executor of the will, is joined, as plaintiff or defendant, with one or more other parties; an action in which a receiver of a savings bank is sole plaintiff or sole defendant; and, in the court of appeals or the supreme court, an appeal from the decree or decision. of a surrogate's court, determining a will to be valid, and admitting it to probate, or granting general letters of administration. 6. An action for dower; where the plaintiff makes proof, by affidavit, to the satisfaction of the court, or a judge thereof, that she has no sufficient means of support, aside from the estate in controversy. TITLE 6. Id.; in mandamus tion. 7. An action against a corporation or joint-stock association, issuing bank notes, or any kind of paper credits, to circulate as money; or by or against a receiver of such a corporation or association. 8. An action against a corporation, founded upon a note, or other evidence of debt, for the absolute payment of money. 9. An action against a sheriff, in his official capacity. 10. A cause entitled to preference, by the general rules of practice, or by the special order of the court in the particular case. Where an issue of law and an issue of fact, or two or more other questions of different natures, come before the same term of the court for trial or hearing, the preference given by this section affects only the order, in which the issues or questions of the same nature are to be disposed of. § 792. Where a writ of mandamus or of prohibition has been issued, or prohibi- from the general term, to a special term, or a judge of the same court, the cause may, in the discretion of the court, or, where an appeal is taken therein to the court or appeals, in the discretion of that court, be preferred over any of the causes specified in the last section. When an order is necessary. § 793. Where the right to a preference depends upon facts, which do not appear in the pleadings or other papers, upon which the cause is to be tried or heard, the party desiring a preference must procure an order therefor, from the court, or a judge thereof, upon notice to the adverse party. A copy of the order must be served, with or before the notice of trial or argument. Such an order is not appealable; but it may be vacated by the judge or judges holding the term, at which the preferred cause is noticed for trial or hearing. But a preliminary order is not requisite, in a case embraced within subdivision first or second of the last section but one; and the order, in a case embraced within subdivision seventh or eighth thereof, may be made ex parte, and is conclusive. § 794. Where an action or special proceeding, placed upon the calendar of a term of a court of record, held in the city and county of how placed New-York, is regularly called and passed, without a postponement by the court, for good cause shown, it must thenceforth be placed on the same or a future calendar, as if the date of the issue was the time when it was thus passed. When cause passed, upon the calendar. Note of issue to state passed. § 795. In a case specified in the last section, the party placing the time when cause upon the calendar, for a subsequent term, must state, in the note of issue, the date of the issue, as prescribed in that section. If he omits to do so, by reason whereof the cause retains its priority on the calendar, the court, on the application of the adverse party, or of its own motion, may strike the cause from the calendar. ARTICLE THIRD. SERVICE OF PAPERS. SECTION 796. Paper may be served personally. 797. Other modes of service. 798. Double time when served through the post-office. 799. When paper to be served on attorney; when service not required 800. When service may be made on clerk, for non-resident. 801. Service through branch post-office in New-York city. 802. This article not applicable to service of summons, etc. 146 ART. 3. § 796. A notice or other paper in an action, may be served on a party Paper may or an attorney, either by delivering it to him personally, or in the man- be served ner prescribed in the next section. personally. modes of § 797. Where the service is not personal, it may be made as follows: Other 1. Upon a party or an attorney, through the post-office, by deposit- service. ing the paper, properly inclosed in a post-paid wrapper, in the postoffice of the party or the attorney serving it, directed to the person to be served, at the address, within the State, designated by him for that purpose, upon the preceding papers in the action; or, where he has not made such a designation, at his place of residence, or the place where he keeps an office, according to the best information which can conveniently be obtained concerning the same.. 2. Upon an attorney, during his absence from his office, by leaving the paper with his partner or clerk therein, or with a person having charge thereof. 3. Upon an attorney, if there is no person in charge of his office, and the service is made between six o'clock in the morning and nine o'clock in the evening, either by leaving it, in a conspicuous place in his office, or by depositing it, inclosed in a sealed wrapper, directed to him, in his office letter-box; or, if the office is not open, so as to admit of leaving the paper therein, and there is no office letter-box, by leaving it at his residence, within the State, with a person of suitable age and discretion. 4. Upon a party, by leaving the paper at his residence, between six o'clock in the morning and nine o'clock in the evening, with a person of suitable age and discretion. time when the post § 798. Where it is prescribed in this act, or in the general rules of Double practice, that a notice must be given, or a paper must be served, within served a specified time, before an act is to be done; or that the adverse party through has a specified time, after notice or service, within which to do an act; office. if service is made through the post-office, the time so required or allowed is double the time specified; except that service of notice of rial may be made, through the post-office, not less than sixteen days before the day of trial, including the day of service. per to be served on 799. Where a party has appeared, a notice or other paper, required when pato be served in an action, must be served upon his attorney. If a defendant has not appeared, service of a notice or other paper, in the attorney; ordinary proceedings in the action, need not be made upon him, unless vice not rebe is actually confined in jail, for want of bail. when ser quired. be made on § 800. Where a party to an action, who has appeared in person, re- When sersides without the State, or his residence cannot, with reasonable dili- vice may gence, be ascertained, and he has not designated an address, within clerk, for the State, upon the preceding papers, service of a paper upon him be made, by serving it on the clerk. non-resi may dent. branch § 801. In the city of New-York, where a paper is served, or a return service is made, through the post-office, the deposit of the package in a branch through post-office has the same effect, as a deposit in the general or principal post-office post-office of that city. in New York city. This article a not appli § 802. This article does not apply to the service of a summons, or ther process; or of a paper to bring a party into contempt; or to case where the mode of service is specially prescribed by law. cable to service of summons, etc. 147 TITLE 6. Court may direct dis ARTICLE FOURTH. DISCOVERY OF BOOKS AND PAPERS. SECTION 803. Court may direct discovery of books, etc. 805. Petition for discovery, and order thereupon. 807. Proceedings upon the return of the order. 809. Effect of papers, etc., produced. § 803. A court of record, other than a justices' court in a city, has covery of power to compel a party to an action pending therein, to produce and books, etc. discover, or to give to the other party, an inspection and copy, or permission to take a copy, of a book, document, or other paper, in his possession or under his control, relating to the merits of the action, or of the defence therein. Rules to prescribe etc. S804. The general rules of practice must prescribe the cases, in the cases, which a discovery or inspection may be so compelled, and the proceedings for that purpose, where the same are not prescribed in this act. Petition for §805. To entitle a party to procure such a discovery or inspection, and order he must present a petition, praying therefor, and verified by affidavit, thereupon. to the court, or to a judge authorized to make an order in the action; discovery, Order, when and vacated. by whom Proceed ings upon of the order. upon which an order may be made, directing the party, against whom the discovery or inspection is sought, to allow it, or, in default thereof, to show cause before the court, at a time and place, and upon a notice, therein specified, why the prayer of the petition should not be . granted; and, if necessary or proper, that his proceedings be stayed until the hearing of the application, although the stay exceeds twenty days. § 806. An order, made as prescribed in the last section, may be vacated, by the judge who granted it, or by the court, upon satisfactory proof, by affidavit: 1. That it ought not to have been granted, or that it has been com plied with; or, 2. That the party required to make the discovery, or permit the in spection, has not the possession or control of the book, document, o other paper, directed to be produced or inspected. § 807. Upon the return of the order to show cause, the court may the return make such an order, with respect to the discovery or inspection praye for, as justice requires. Where either is directed, a referee may b appointed by the order, to direct and superintend it; whose certificate unless set aside by the court, is presumptive, and, except in proceed ings for contempt, conclusive evidence, of compliance or non-compl ance with the terms of the order. A fixed sum, not exceeding twent dollars, may be added to the costs of the motion, for the fees of th referee. Penalty for disobedi ence. § 808. Where an order, made as prescribed in the last section, direc a discovery or inspection, the party in whose behalf it was made, may upon proof, by affidavit, that the adverse party has failed to obey i and upon notice to him, apply to the court, for an order to punish hi for the failure. Upon the hearing of the application, the court may upon the payment of such a sum, for the expenses of the applicant, the court fixes, and upon compliance with such other terms, as it deen just to impose, permit the party in default to comply with the order for a discovery and inspection; and, for that purpose, it may direct that the application to punish him stand over to a future time. Upon the final hearing of the application to punish the party in default, the court, in a proper case, may direct that his complaint be dismissed, or his answer or reply be stricken out, and that judgment be rendered accordingly; or it may make an order, striking out one or more causes of action, defences, counterclaims, or replies, interposed by him; or that he be debarred from maintaining a particular claim or defence, in relation to which the discovery or inspection was sought. Where the party has failed to obey an order, allowing an inspection by the adverse party, and requiring him to furnish a copy, or permit a copy to be taken, the court may also direct that the book, document, or other paper, be excluded from being given in evidence; or it may punish the party for a contempt; or both. ART. 5. etc., pro § 809. A book, document, or other paper, produced under an order, Effect of made as prescribed in this article, has the same effect, when used by papers, the party requiring it, as if it was produced upon notice, according to duced. the practice of the court. Jeb ว ARTICLE FIFTH. GENERAL REGULATIONS RESPECTING BONDS AND UNDERTAKINGS. SECTION 810. Bonds, undertakings, etc., must be acknowledged. 811. Party need not join with his sureties; when one surety is sufficient. 813. When several sureties may justify, each in a smaller sum. 814. Bonds, etc., to the people or a public officer for the benefit of a 815. Bonds, etc., not affected by change of parties. be acknowledged. not join § 810. A bond or undertaking, given in an action or special pro- Bonds, unteeding, as prescribed in this act, must be acknowledged or proved, etc., must and certified, in like manner as a deed to be recorded. §811. Where a provision of this act requires a bond or undertaking, Party need with sureties, to be given by, or in behalf of, a party or other person, with his be need not join with the sureties in the execution thereof, unless the sureties; provision requires him to execute the same; and the execution thereof when one by one surety is sufficient, although the word, "sureties," is used, sufficient. anless the provision expressly requires two or more sureties. surety is approval § 812. A bond or undertaking, executed by a surety or sureties, as Form of prescribed in this act, must, where two or more persons execute it, be bond or undertaking; joint and several in form; and, except as otherwise expressly pre- affidavit of scribed by law, it must be accompanied with the affidavit of each sureties; arety, subjoined thereto, to the effect, that he is a resident of, and a by court or householder or a freeholder within, the State, and is worth the penalty judge. 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 nd or undertaking given by a party, without a surety, must be |