Imágenes de páginas
PDF
EPUB

TITLE 5.

Effect of order of removal;

sequent proceedings therein must be the same, as if the action had been originally brought in the supreme court.

§ 344. An order of removal, made as prescribed in either of the last two sections, takes effect upon the entry thereof in the office of the appeal, etc. county clerk. Where the order directs that the action be tried in another county, the clerk with whom it is entered, must forthwith deliver to the clerk of that county, all papers filed therein, and certified copies of all minutes and entries relating thereto; which must be filed, entered, or recorded, as the case requires, in the office of the last mentioned clerk. The provisions of section two hundred and seventy-one of this act apply to an appeal taken from such an order.

Stay of proceedings.

Removal of action

not to im pair pro

cess, etc.

County

court may

send

process to

any county.

When jurisdiction, etc., cowith su

§ 345. An order to stay proceedings, for the purpose of affording an opportunity to make the application for removal, may be made by the county judge, or by a judge authorized to make such an order in the supreme court, and with like effect and under like circumstances.

§346. The removal of an action or special proceeding, as prescribed in this title, does not invalidate, or in any manner impair, a process, provisional remedy, or other proceeding, or a bond, undertaking, or recognizance in the action or special proceeding so removed; each of which continues to have the same validity and effect, as if the removal had not been made. Where bail was given, the surrender of the defendant in the supreme court has the same effect, as a surrender in the county court would have had, if the action or special proceeding had remained therein.

§ 347. A county court has power, in an action or special proceeding of which it has jurisdiction, to send its process and other mandates into any county of the State, for service or execution, and to enforce obedience thereto, with like power and authority as the supreme court. § 348. Where a county court has jurisdiction of an action or a special proceeding, it possesses the same jurisdiction, power and authority in extensive and over the same, and in the course of the proceedings therein, which preme the supreme court possesses in a like case; and it may render any judgment, or grant either party any relief, which the supreme court might render or grant in a like case, and may enforce its mandates in like manner as the supreme court. And the county judge possesses the same power and authority, in the action or special proceeding, which a justice of the supreme court possesses, in a like action or special proceeding, brought in the supreme court.

court.

Power of county

judge in special proceed. ings.

Fines and

penalties; how remit

ted.

Restric

$349. The county judge also possesses the same power and authority, in a special proceeding, which can be lawfully instituted before him, out of court, which a justice of the supreme court possesses in a like special proceeding, instituted before him in like manner.

§ 350. Upon the application of a person, who has been fined by a court, or of a person whose recognizance has become forfeited, or of his surety, the county court of the county in which the term of the court was held, where the fine was imposed, or the recognizance taken, may, except as otherwise prescribed in the next section, upon good cause shown, and upon such terms as it deems just, make an order, remitting the fine, wholly or partly, or the forfeiture of the recognizance, or part of the penalty thereof; or it may discharge the recognizance. If a fine so remitted has been paid, the county treasurer, or other officer, in whose hands the money remains, must pay the same, or the part remitted, according to the order.

§ 351. The last section does not authorize a county court, to remit tions upon any part of a fine, exceeding two hundred and fifty dollars, imposed

TITLES.

power to

by a court of oyer and terminer, or a court of sessions, upon a conviction for a criminal offence; or a fine, to any amount, imposed by a court remit. upon an officer or other person, for an actual contempt of court, or for disobedience to its process, or other mandate; or to remit or discharge a recognizance, taken in its county, for the appearance of a person in another county. In the latter case, the power of remitting or discharging the recognizance is vested in the county court of the county, in which the person is bound to appear.

tion, etc.;

mission.

§352. An application for an order, as prescribed in the last section Notice of but one, cannot be heard, until such notice thereof as the court deems applicareasonable, has been given to the district-attorney of the county, and costs to be until he has had an opportunity to examine the matter, and prepare to paid on reresist the application. And upon granting such an order, the court must always impose, as a condiction thereof, the payment of the costs and expenses, if any, incurred in an action or special proceeding for the collection of the fine, or the penalty of the recognizance.

justices of

how remit

$353. Where a person has been fined by a court of special sessions, Fines imor by a justice of the peace, upon a conviction for an offence, and has posed by been committed to jail for non-payment of the fine, the county court the peace; of the county may make an order, remitting the fine, wholly or partly, ted. and discharging him from his imprisonment. The power conferred by this section must be exercised in the manner prescribed, and subject to the provisions contained, in the last three sections.

make or

$354. In an action or special proceeding in a county court, an order who may may be made without notice, or an order to stay proceedings may make be made upon notice, by a justice of the supreme court, or by the County judge of the county where the attorney for the applicant resides, in a case where the county judge, in whose court the action or special proceeding is brought, may make the same, out of court; and with like effect.

open;

thereof.

$355. The county court is always open for the transaction of any County business, for which notice is not required to be given to an adverse court when party, except where it is specially prescribed by law, that the business terms Eust be done at a stated term. The county judge must, from time to ne, appoint the times and places for holding terms of his court. At ast two terms, for the trial of issues of law or of fact, must be apinted to be held in each year. Each term may contine as long as the banty judge deems necessary. The county judge may, by a new pointment, change the day appointed for holding a term, or appoint or more additional terms, or dispense with the holding of a term, ithout affecting any other term or terms theretofore appointed to be d. Each term must be held at the place designated by statute for at purpose; except that the county judge may, from time to time, rn a term to any place within the county, for the hearing and ision of motions and appeals, and trials and other proceedings without a jury; and may appoint as many terms as he thinks proper beheld, either at the court house or elsewhere in the county, for the Le purpose.

appoint

$356. Each appointment; made as prescribed in the last section, Notice of st be filed in the county clerk's office, and a copy thereof published, ment to be least once in each week, for three successive weeks before a term is published. 4changed, or dispensed with, by virtue thereof, in the newspaper

The city of Albany, in which legal notices are required to be pub

*So in the original.

TITLE 5.

Jurors,

how drawn

fied.

lished, and also in at least one newspaper, published in the county, and as many additional newspapers, published therein, as the county judge prescribes. The expense of the publication is a county charge.

§ 357. Jurors for the terms of the county court, at which issues of and not faet are triable by jury, and of the court of sessions, must be drawn and notified in the same manner as for a term of the circuit court. § 358. The board of supervisors of any county, except Kings, Livingston, and Monroe, may provide for the employment of a stenographer for the county court and court of sessions thereof, and must fix his compensation, and provide for the payment thereof, in the same manner as other county expenses are paid.

Stenographers for County courts.

Stenogra pher for county court and court of

sessions in

Kings county

[ocr errors]

Interpreter for county

in Kings county.

§359. The county judge of the county of Kings, from time to time must appoint, and may at pleasure remove, a stenographer, to be at tached to the county court, and the court of sessions, of the county of Kings, who is entitled to a salary, fixed and to be paid as prescribed by law. He must attend each trial of an issue of fact in the county court o court of sessions. The stenographer appointed as prescribed in this section, may, with the consent of the county judge, appoint an assist ant stenographer to aid him in the discharge of his duties, whose com pensation shall be paid by the stenographer, and is not a county charge

§ 360. The county judge and the surrogate of the county of Kings court, etc., from time to time, must appoint, and may at pleasure remove, an in terpreter, to be attached to the county court, the court of sessions, an the surrogate's court of the county of Kings. Before entering upon th discharge of his duties, he must file in the county clerk's office the co stitutional oath of office, and an additional oath, which may be inco porated into the constitutional oath, to the effect that he will fully an correctly interpret and translate each question propounded to a witne and each answer thereto.

Stenogra pher for county courts of Monroe,

§ 361. The judge holding or presiding at a term of the county cou or court of sessions, in either of the counties of Livingston, Niagara Monroe, where issues of fact are triable, may employ a stenograph Livingston to take stenographic notes upon trials thereat, who is entitled to a co

and Niag

ara counties.

pensation, to be certified by the judge, not exceeding ten dollars 1 each day's attendance, at the request of the judge. The stenographe compensation is a charge upon the county, and, in the counties of L ingston and Niagara must be audited, allowed and paid as other cour charges; and in the county of Monroe must be paid by the cour treasurer on an order of the court, granted on the affidavit of stenographer and the certificate of the judge, that the services w rendered.

66

TITLE 1.

CHAPTER IV.

LIMITATION OF THE TIME OF ENFORCING A CIVIL
REMEDY.

TITLE I.-ACTIONS FOR THE RECOVERY OF REAL PROPERTY.
TITLE II.-ACTIONS OTHER THAN FOR THE RECOVERY OF REAL

PROPERTY.

TITLE III.-GENERAL PROVISIONS.

TITLE I.

Actions for the recovery of real property.

SECTION 362. When the people will not sue.

363. Action by grantee from the State.

364. Action after anulling letters patent.

365, 366. Seizin within twenty years, when necessary, etc.

367. Action after entry.

368. Possession, when presumed; occupation presumed to be under legal
title.

369. Adverse possession under written instrument or judgment.

370. Id.; what constitutes it.

371. Adverse possession under claim of title not written.

372. Id.; what constitutes it.

373. Relation of landlord and tenant, as affecting adverse possession.
374. Right not affected by descent cast.

375. Certain disabilities excluded from time to commence action.

people will

§ 362. The people of the State will not sue a person for or with re- when the spect to real property, or the issues or profits thereof, by reason of the right or title of the people to the same, unless either:

1. The cause of action accrued within forty years before the action is commenced; or,

2. The people, or those from whom they claim, have received the rents and profits of the real property, or of some part thereof, within the same period of time.

not sue.

grantee

§363. An action shall not be brought for or with respect to real Action by property, by a person claiming by virtue of letters patent or a grant, from the from the people of the State, unless it might have been maintained by State. the people, as prescribed in this title, if the patent or grant had not been issued or made.

nulling let

§364. Where letters patent or a grant of real property, issued or Action made by the people of the State, are declared void by the determina- after antion of a competent court, rendered upon an allegation of a fraudulent ters patent. anggestion or concealment, or of a forfeiture, or mistake, or ignorance da material fact, or wrongful detaining, or defective title; an action

TITLE L

Seizin

within twenty years,

when necessary, etc.

The same.

Action

of ejectment, to recover the premises in question, may be commenced, either by the people, or by a subsequent patentee or grantee of the same premises, his heirs, or assigns, within twenty years after the determination is made; but not after that period.

§ 365. An action to recover real property, or the possession thereof, cannot be maintained by a party, other than the people, unless the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises in question, within twenty years before the commencement of the action.

§ 366. A defence or counterclaim, founded upon the title to real property, or to rents or services out of the same, is not effectual, unless the person making it, or under whose title it is made, or his ancestor, predecessor, or grantor, was seized or possessed of the premises in question, within twenty years before the committing of the act, with respect to which it is made.

§ 367. An entry. upon real property is not sufficient or valid as a anter entry claim, uless an action is commenced thereupon, within one year after the making thereof, and within twenty years after the time, when the right to make it descended or accrued.

Possession,

presumed

oc

§ 368. In an action to recover real property, or the possession thereof, sumed, c. the person who establishes a legal title to the premises is presumed to cupation have been possessed thereof, within the time required by law; and to be under the occupation of the premises, by another person, is deemed to have legal title. been under and in subordination to the legal title, unless the premises have been held and possessed adversely to the legal title, for twenty years before the commencement of the action.

Adverse possession

ten instru

ment or

§ 369. Where the occupant, or those under whom he claims, entered under writ. into the possession of the premises, under claim of title, exclusive of any other right, founding the claim upon a written instrument, as judgment. being a conveyance of the premises in question, or upon the decree or judgment of a competent court; and there has been a continued occupation and possession of the premises, included in the instrument, decree, or judgment, or of some part thereof, for twenty years, under the same claim; the premises so included are deemed to have been held adversely except that where they consist of a tract, divided into lots, the possession of one lot is not deemed a possession of any other lot.

Id.; what constitutes

it.

Adverse possession under claim of

title not written.

§ 370. For the purpose of constituting an adverse possession, by a person claiming a title, founded upon a written instrument, or a judgment or decree, land is deemed to have been possessed and occupied in either of the following cases:

1. Where it has been usually cultivated or improved.

2. Where it has been protected by a substantial inclosure.

3. Where, although not inclosed, it has been used for the supply of fuel, or of fencing timber, either for the purposes of husbandry, or for the ordinary use of the occupant.

Where a known farm or a single lot has been partly improved, the portion of the farm or lot that has been left not cleared, or not inclosed, according to the usual course and custom of the adjoining country, is deemed to have been occupied for the same length of time, as the part improved and cultivated."

§371. Where there has been an actual continued occupation of premises, under a claim of title, exclusive of any other right, but not founded upon a written instrument, or a judgment or decree, the premises so actually occupied, and no others, are deemed to have been held adversely.

« AnteriorContinuar »