Imágenes de páginas
PDF
EPUB

aforesaid, or who is an infant; or for the sale or other disposition of the real property, situated within the county, of a domestic religious corporation.

341. For the purpose of determining the jurisdiction of a county court, in either of the cases specified in the last section, a domestic corporation or joint-stock association, whose principal place of business is established, by or pursuant to a statute, or by its articles of association, or is actually located within the county, is deemed a resident of the county, and personal service of a summons, made within the county, as prescribed in this act, or personal service of a mandate, whereby a special proceeding is commenced, made within the county, as prescribed in this act for personal service of a summons, is sufficient service thereof upon a domestic corporation, wherever it is located.

342. [am'd 1877.] If the county judge is, for any cause, incapable to act in an action or special proceeding, pending in the county court, or before him, he must make, and file in the office of the clerk, a certificate of the fact; and thereupon the special county judge, if any, and if not disqualified, must act as county judge in that action or special proceeding. Upon the filing of the certificate, where there is no special county judge, or the special county judge is disqualified, the action or special proceeding is removed to the supreme court, if it is then pending in the county court; if it is pending before the county judge, it may be continued before any justice of the supreme court within the same judicial district. The supreme court, upon the application of either party, made upon notice, and upon proof that the county judge is incapable to act in an action or special proceeding pending in the county court, may, and if the special county judge is also incapable to act, must, make an order removing it to the supreme court. Thereupon the subsequent proceedings in the supreme court inust be the same as if it had originally been brought in that court, except that an objection to the jurisdiction may be taken, which might have been taken in the county court.

$343. The supreme court may, by an order, made at any time after joinder of an issue of fact, and before the trial thereof, remove to itself an action, brought in a county court, under subdivision second or subdivision third of the last section but two, for the purpose of changing the place of trial thereof. Where an order for removal is made, as prescribed in this section, the place of trial of the action must be changed by the same order to another county; and the subsequent 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 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.

§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 of 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 and over the same, and in the course of the proceedings therein, which 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.

$ 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 any part of a fine, exceeding two hundred and fifty dollars, imposed 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 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.

§ 352. An application for an order, as prescribed in the last section but one, cannot be heard, until such notice thereof as the court deems reasonable, has been given to the district-attorney of the county, and until he has had an opportunity to examine the matter, and prepare to resist the application. And upon granting such an order, the court must always impose, as a condiction [condition] thereof, the payment of the costs and expenses,

if any, incurred in action or special proceeding for the collection of the fine, or the penalty of the recognizance,

§ 353. Where a person has been fined by a court of special sessions, or by a justice of the peace, upon a conviction for an offence, and has been committed to jail for non-payment of the fine, the county court of the county may make an order, remitting the fine, wholly or partly, 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.

$354. In an action or special proceeding in a county court, an order may be made without notice, or an order to stay proceedings may 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.

§ 355. [am'd 1877.] The county court is always open for the transaction of any business, for which notice is not required to be given to an ad-' verse party, except where it is specially prescribed by law, that the business must be done at a stated term. The county judge must, from time to time, appoint the times and places for holding terms of his court. At least two terms, for the trial of issues of law or of fact, must be appointed to be held in each year. Each term may continue as long as the county judge deems necessary. The county judge may, by a new appointment, change the day appointed for holding a term, or appoint one or more additional terms, or dispense with the holding of a term, without affecting any other term or terms theretofore appointed to be held. Each term must be held at the place designated by statute for that purpose; except that the county judge. may, from time to time adjourn a term to any place within the county, for the hearing and decision of motions and appeals, and trials and other proceedings without a jury; and may appoint as many terms as he thinks proper to be held, either at the court house or elsewhere in the county, for the same purpose.

356. Each appointment, made as prescribed in the last section, must be filed in the county clerk's office, and a copy thereof published, at least once in each week, for three successive weeks before a term is held, changed, or dispensed with, by virtue thereof, in the newspaper in the city of Albany, in which legal notices are required to be published, 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 fact 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. [am' 1883] The board of supervisors of any county, except Kings, Livingston, Monroe, Cortland, Oswego. Westchester and Onondaga, may, in their discretion, provide for the employment of a stenographer for the county court and court of sessions thereof, and when said board of supervisors shall so provide, the stenographer shall be appointed by the presiding judge of said courts, and said board of supervisors must fix his compensation, and provide for the payment thereof, in the same manner as other county expenses are paid.

§ 359. [am'd 1877.] The county judge of the county of Kings, from

time to time, must appoint, and may at pleasure remove, a stenographer to be attached 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 of court of sessions. The stenographer, appointed as prescribed in this sec tion, may, with the consent of the county judge, appoint an assistant steno grapher, to aid him in the discharge of his duties, whose compensation shal be paid by the stenographer, and is not a county charge.

$350. [um'd 1877.] The county judge and the surrogate of the county of Kings, from time to time, must appoint, and may at pleasure remove, a interpreter, to be attached to the county court, the court of sessions, and the surrogate's court of the county of Kings. Before entering upon the dis charge of his duties, he must file in the county clerk's office the constitu tion it oath of office, and an additional oath, which may be incorporated into the constitutional oath, to the effect that he will fully and correctly in terpret and translate each question propounded to a witness, and each answer thereto.

§ 361. [am'd 1878 & 1883.] The judge holding or presiding at a term of the county court or court of sessions, in either of the counties of Livingston Niagara, Monroe or Onondaga, where issues of fact are triable, may employ a stenographer to take stenographic notes upon trials thereat, who is enti tied to a compensation to be certified by the judge, not exceeding ten dol lars for each day's attendance, at the-request of the judge. The stenogra pher's compensation is a charge upon the county, and in the counties of Livingston Niagara and Onondaga must be audited, allowed and paid as other county charges; and in the county of Monroe must be paid by the county treasurer on an order of the court, granted on the affidavit of the stenogra pler and the certificate of the judge that the services were rendered.

CHAPTER IV.

LIMITATION OF THE TIME OF ENFORCING A CIVIL REMEDY.

TITUR I. —ACTIONS FOR THE RECOVERY OF Real property.

TITLE IL-ACTIONS OTHER THAN FOR THE RECOVERY OF REAL PROPERTY. TITLE I GENERAL PROVISIONS.

[merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small]

g God. The people of the State will not sue a person for or with respect to ted property, où fap Estes or profits thereof, by reason of the right or ne of the people to the same, unless either:

1 Pac cube of action accrued within forty years before the action is commucuced, o

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.

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

§ 364. Where letters patent or a grant of real property, issued or made by the people of the State, are declared void by the determination of a competent court, rendered upon an allegation of a fraudulent suggestion or concealment, or of a forfeiture, or mistake, or ignorance of a material fact, or wrongful detaining, or defective title; an 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 grautor, 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 claim, unless 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.

$368. In an action to recover real property, or the possession thereof, the person who establishes a legal title to the premises is presumed to have been possessed thereof, within the time required by law; and the occupation of the premises, by another person, is deemed to have 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.

$369. Where the occupant, or those under whom he claims, entered into the possession of the premises, under claim of title, exclusive of any other right, founding the claim upon a written instrument, as 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 posses. sion 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.

§ 370. For the purpose of constituting an adverse possession, by a person claiming a title, founded upon a written instrument, or a judgment or

« AnteriorContinuar »