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THE CODE OF CIVIL PROCEDURE.
[BEING CHAP. 448 OF THE LAWS OF 1876, as so DESIGNATED, AND AS AMENDED BY THE AMENDING ACTS.]
AN ACT RELATING to courts, oFFICERS OF JUSTICE, AND CIVIL PROCEEDINGS.
Passed June 2, 1876; three-fifths being present.
The People of the State of New York, represented in Senate and Assembly, do enact as follows:··
GENERAL PROVISIONS RELATING TO COURTS, AND THE MEMBERS AND OFFICERS THEREOF.
TITLE I.-THE COURTS OF THE STATE; THEIR GENERAL POWERS AND ATTRIBUTES, AND GENERAL REGULATIONS PERTAINING TO THE EXERCISE THEREOF. TITLE II.-PROVISIONS OF GENERAL APPLICATION, RELATING TO THE JUDGES, AND CERTAIN OTHER OFFICERS OF THE COURTS
The courts of the State; their general powers and attributes, and general regulations pertaining to the exercise thereof.
ARTICLE 1. Enumeration and classification.
§ 1. Courts.
2. General Powers and attributes of the courts.
3. Miscellaneous provisions relating to the sittings of the courts.
ENUMERATION AND CLASSIFICATION.
2. Courts of record enumerated.
3. Courts not of record.
§ 4. General provision as to jurisdiction, etc.
SECTION 1. The courts referred to in this act, are enumerated in the
next two sections.
§2. [am'd 1877.] Each of the following courts of the State is a court of
1. The court for the trial of impeachments.
2. The court of appeals.
3. The supreme court,
4. A circuit court in each county.
5. A court of oyer and terminer in each county.
6. A court of common pleas for the city and county of New York. 7. The superior court of the city of New York.
8. The court of general sessions of the peace in and for the city and county of New York.
9. The superior court of Buffalo. 10. The city court of Brooklyn.
11. The city court of Long Island city.
12. The city court of Yonkers.
13. A county court in each county, except New York.
§3. [am'd 1877.] Each of the following courts of the State is a court not of record:
1. Courts of justices of the peace in each town, and in certain cities and villages.
2. Courts of special sessions of the peace in each town, and in cer-
3. The district courts in the city of New York.
6. The municipal court of the city of Rochester.
§ 4. [am'd 1877.] Each of those courts shall continue to exercise the jurisdiction and powers now vested in it by law, according to the course and practice of the court, except as otherwise prescribed in this act.
GENERAL POWERS AND ATTRIBUTES OF THE COURTS.
5. The sittings of courts to be public. 6. Courts not to sit on Sunday, except in special cases.
7. General powers of courts of re
18. Rules to be published.
19. Courts to order calendar printed.
26. In New York, one judge may con tinue proceedings commenced before another.
27. Provisions respecting the seals of
29. What is a sufficient sealing.
§ 5. [am'd 1879.] The sittings of every court within this State shall be public, and every citizen may freely attend the same, except that in all proceedings and trials in cases for divorce, on account of adultery, seduc tion, abortion, rape, assault with intent to commit rape, criminal conversa tion, and bastardy, the court may, in its discretion, exclude therefrom all persons who are not directly interested therein, excepting jurors, witnesses and officers of the court.
6. A court shall not be opened, or transact any business on Sunday except to receive a verdict or discharge a jury. An adjournment of a court on Saturday, unless made after a cause has been committed to a jury, must be to some other day than Sunday. But this section does not prevent the
exercise of the jurisdiction of a magistrate, where it is necessary to preserve the peace, or, in a criminal case, to arrest, commit or discharge a person charged with an offence.
§ 7. A court of record has power:
1. To issue a subpoena, requiring the attendance of a person found in the State, to testify in a cause pending in that court; subject, however, to the limitations, prescribed by law, with respect to the portion of the State, in which the process of a local court of record may be served.
2. To administer an oath to a witness, in the exercise of the powers and duties of the court.
3. To devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it.
A court of record has power to punish for a criminal contempt, a person guilty of either of the following acts, and no others:
1. Disorderly, contemptuous, or insolent behaviour, committed during its sitting, in its inmediate view and presence, and directly tending to inter. rupt its proceedings, or to impair the respect due to its authority.
2. Breach of the peace, noise, or other disturbance, directly tending to interrupt its proceedings.
3. Wilful disobedience to its lawful mandate.
4. Resistance wilfully offered to its lawful mandate.
Contumacious and unlawfui refusal to be sworn as a witness; or, after being sworn, to answer any legal and proper interrogatory.
6. Publication of a false, or grossly inaccurate report of its proceedings. But a court cannot punish as a contempt, the publication of a true, full, and fair report of a trial, argument, decision, or other proceeding therein.
9. Punishment for a contempt, specified in the last section, may be by fine, not exceeding two hundred and fifty dollars, or by imprisonment, not exceeding thirty days, in the jail of the county where the court is sitting, or both, in the discretion of the court. Where a person is committed to jail, for the non-payment of such a fine, he must be discharged at the expiration of thirty days; but where he is also committed for a definite time, the thirty days must be computed from the expiration of the definite time.
§ 10. Such a contempt, committed in the immediate view and presence of the court, may be punished summarily; when not so committed, the party charged must be notified of the accusation, and have a reasonable time to make a defence.
§ 11. Where a person is committed for such a contempt, the particular circumstances of his offence must be set forth in the mandate of commit
12. The last four sections do not extend to a special proceeding to punish a person, in a case specified in section fourteen of this act.
§ 13. Punishment for a contempt, as prescribed in this article, does not bar an indictment for the same offence; but where a person who has been so punished is convicted on such an indictment, the court, in sentencing him, must take into consideration the previous punishment.
§ 14. A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in either of the following cases:
1. An attorney, counsellor, clerk, sheriff, coroner, or other person, in any manner duly selected or appointed to perform a judicial or ministerial service, for a misbehaviour in his office or trust, or for a wilful neglect or violation of duty therein; or for disobedience to a lawful mandate of the court, or of a judge thereof, or of an officer authorized to perform the duties of such a judge.
2. A party to the action or special proceeding, for putting in fictitious bail or a fictitious surety, or for any deceit or abuse of a mandate or proceeding of the court.
3. A party to the action or special proceeding, an attorney, counsellor, or other person, for the non-payment of a sum of money, ordered or adjudged by the court to be paid, in a case where by law execution cannot be awarded for the collection of such sum; or for any other disobedience to a lawful mandate of the court.
4. A person, for assuming to be an attorney or counsellor, or other officer of the court, and acting as such without authority; for rescuing any property or person in the custody of an officer, by virtue of a mandate of the court; for unlawfully detaining, or fraudulently and wilfully preventing, or disabling from attending or testifying, a witness, or a party to the action or special proceeding, while going to, remaining at, or returning from, the sitting where it is noticed for trial or hearing; and for any other unlaw ful interference with the proceedings therein.
5. A person subpoenaed as a witness, for refusing or neglecting to obey the subpoena, or to attend, or to be sworn, or to answer as a witness.
6. A person duly notified to attend as a juror, at a term of the court, for improperly conversing with a party to an action or special proceeding, to be tried at that term, or with any other person, in relation to the merits of that action or special proceeding or for receiving a communication from any person, in relation to the merits of such an action or special proceeding, without immediately disclosing the same to the court.
7. An inferior magistrate, or a judge or other officer of an inferior court, for proceeding, contrary to law, in a cause or matter, which has been removed from his jurisdiction to the court inflicting the punishment; or for disobedience to a lawful order or other mandate of the latter court.
8. In any other case, where an attachment or any other proceeding to punish for a contempt, has been usually adopted and practiced in a court of record, to enforce a civil remedy of a party to an action or special proceeding in that court, or to protect the right of a party.
§ 15. [am'd 1877.] But a person shall not be arrested or imprisoned, for the non-payment of costs, awarded otherwise than by a final judgment, or a final order, made in a special proceeding instituted by state writ, except where an attorney, counsellor, or other officer of the court, is ordered to pay costs for misconduct as such, or a witness is ordered to pay costs on an attachment for non-attendance.
16. Except in a case where it is otherwise specially prescribed by law, a person shall not be arrested or imprisoned for disobedience to a judgment or order, requiring the payment of money due upon a contract, express or implied, or as damages for non-performance of a contract.
17. [am'd 1877.] The general term justices of the supreme court, and the chief judges of the superior city courts, must meet in convention, at the capitol, in the city of Albany, on the first Wednesday of October, 1877, and every second year thereafter. The convention must establish rules of practice, not inconsistent with this act, which shall be binding upon
all courts of record, except the court for the trial of impeachments and the court of appeals. A majority of the members of the convention constitute a quorum. The rules thus established are styled in this act, "the general rules of practice."
18. A rule thus established, or a general rule or order of the court of appeals, does not take effect, until it has been published in the newspaper published at Albany, in which legal notices are required by law to be published, once in each week for three successive weeks.
19. The supreme court, a superior city court, or a county court may, from time to time, by order, require the clerk to cause to be printed for the use of the members and officers thereof, the necessary copies of the calendar of causes, prepared for a term of the court, or, in the supreme court, for the circuit court. But this section does not apply to the city and county of New York.
$20. The expense of printing the copies of the calendar for a term, shall be a charge upon the county in which the term is held; and must be audited, allowed, and paid, by the board of supervisors thereof, in like manner as other contingent county charges.
§ 21. A superior city court may, from time to time, by an order made at general term, direct the clerk of the court, and the supreme court, at general term, may, by a like order, direct a county clerk, to destroy any of the following papers, now filed, or hereafter to be filed in his office, which the court deems to have become useless, to wit: pleadings, or copies of pleadings furnished for the use of the court; jury panels; returns of inferior courts, which have been embodied in judgment-records or judgmentrolls; innkeepers' licenses, ten years old; and returns of election district canvassers, twenty years old, which have been copied, pursuant to law, into books preserved in his office. But this provision does not authorize the destruction of a judgment-roll, or a paper incorporated or necessary to be incorporated into a judgment-roll.
§ 22. Except where it is otherwise specially prescribed by law, a writ or other process must be in the name of the people of the State, and each writ, process, record, pleading or other proceeding in a court, or before an officer, must be in the English language, and, unless it is oral, made out on paper or parchment, in a fair, legible character, in words at length, and not abbreviated. But the proper and known names of process, and technical words may be expressed in appropriate language, as now is, and heretofore has been customary; such abbreviations as are now commonly employed in the English language may be used; and numbers may be expressed by Arabic figures, or Roman numerals, in the customary manner.
§ 23. A writ or other process, issued out of a court of record, must be tested, except where it is otherwise specially prescribed by law, in the name of a judge of the court, on any day; must be returnable within the time prescribed by law; or, if no time is prescribed by law, within the time fixed by the court, and therein specified for that purpose; and, when returnable, must, together with the return thereto, be filed with the clerk, unless otherwise specially prescribed by law.
§ 24. A writ or other process, issued out of a court of record, must, before the delivery thereof to an officer to be executed, be subscribed or indorsed with the name of the officer by whom, or by whose direction it was granted, or the attorney for the party, or the person at whose instance it was