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Isewhere, to the place where he is found, to serve such a notice, for each nile travelled, going and returning, ten cents.
For subpoenaing each witness, not exceeding four, twenty-five 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 execute 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 proceeding, 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 REGULATIONS CONCERNING THE
TITLE I. GENERAL DEFINITIONS, AND RULES OF CONSTRUCTION.
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 punishment 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 :
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 uurepealed 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:
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 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 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, 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.
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 Governer 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.
Provisions regulating the effect and application of this act.
3344. This act constitutes a portion of the New Revision of the Statutes. It may be styled, in any act of the legislature or proceeding in a court of justice, or wherever it is otherwise referred to, "The Code of Civil Procedure".
§ 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.
3346. Where it is prescribed, in a provision of this act, that a person 'doing or omitting to do any act is guilty of a particular crime, or, generally, of a misdemeanor, he shall be punished therefor 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.
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, specified in a subdivision of this section, expressly designates the 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 ali 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