second of chapter fifth of this act applies to such an action, ex cept as otherwise prescribed in sections 1535 and 1536 of this act. Ne::. § 1687. Joinder of real actions with others. Nothing contained in this title is to be construed, as to prevent the plaintiff from uniting in the same complaint two or more causes of action, in any case specified in section 484 of this act. New. § 1688. When special proceeding to recover real property not allowed. A special proceeding to recover real property cannot be taken, except in a case specially prescribed by law. Seo 2 R. S 343. § 24. ARTICLE TEN. Lect. 313537 Evidence in actions or proceedings involving a title to real property. Sec. 1688a. Testimony perpetuated pursuant to this article may be received. 1688b. Effect of documentary evidence. 1688c. Mode of introducing testimony. 1688d. Application to take deposition and perpetuate testimony. 1688e. Petition, what to contain. 1688f. Appointment of referee; notice to appear. 1688g. Referee to take deposition. 1688h. Examination; deposition to be signed and certified. 16881. Depositions as evidence. #1688a. [Added, 1901.] Testimony perpetuated pursuant to this article may be received. In any action or proceeding involving a question as to title to real property in the state of New York, the court shall upon the offer of any party receive in evidence testimony perpetuated pursuant to the provisions of this article; provided that the testimony of a witness shall not be admissible under the provisions hereof, until the court is satisfied that such witness is deceased, or is unable personally to attend by reason of insanity, sickness or other infirmity, or is confined in a prison or jail, or is absent from the state, and his attendance cannot with reasonable diligence be compelled by subpoena or his testimony taken by commission. Added by L. 1901, c. 303 (in effect Sept. 1, 1901). § 1688b. [Added, 1901.] Effect of documentary evidence. No provision of this article shall give to any documentary evidence introduced in connection with such testimony any greater or different effect than may be due to it by reason of the testimony relative thereto or its own character. Id. 1688c. [Added, 1901.] Mode of introducing testimony. Such testimony may be introduced in such action or proceeding in any mode established by the practice of the courts for the introduction of testimony given upon a former trial of an action by a witness who has since died, and subject to objections as to the competency of a witness or the relevancy or competency of a ques tion put to him or the answer given by him, as if the witness were personally examined, and without being noted upon the deposition Id. § 1688d. [Added, 1901.] Application to takę deposition and to perpetuate testmony. Where a person has been, or he and those under whom he claims have been, for one year in possession of real property or of an undivided interest therein, claiming it in fee or for life or for a term of years, not less than ten. he may apply to the supreme court, by petition, to take the deposition of any person or persons and to perpetuate such testimony to be received in evidence pursuant to the provisions of this article. Id. § 1688e. [Added, 1901.] Petition, what to contain. The person desiring to take a deposition and to perpetuate testimony as prescribed in this article may present to a justice of the supreme court a petition duly verified, setting forth as follows: First. A description of the real property in relation to which the petitioner desires testimony taken and perpetuated, the estate of the petitioner therein, whether in fee or for life, or for a term of years, and whether he holds as heir, devisee or purchaser, or as trustee of an express trust. Second. That the property at the date of the petition is and for one year next preceding has been in his possession or the possession of himself and those from whom he derives title, either as sole owner or as joint tenant or as tenant in common. Third. A general statement of the facts as to which testimony is to be taken and the circumstances which render it necessary for the protection of the petitioner's rights that the proposed testimony should be perpetuated. Fourth. The names and residences of the persons to be examined. Fifth. The names and residences of persons having interests which may be adversely affected by the testimony sought to be taken, so far as such names and residences are within the knowledge of the petitioner; or, where such names and residences cannot be ascertained, a statement of the class of persons having interests which may be so adversely affected. Sixth. Any other fact necessary to show that the case comes within the provisions of this article. Id. § 1688f. [Added, 1901; am'd, 1913.] Appointment of referee; notice to appear. Upon the presentation of the petition, the judge shall make an order containing directions as to the persons to whom, and the manner in which, notice shall be given of the time and place at which such application will be heard; and at the time fixed in said notice for that purpose, if it shall be shown to the satisfaction of the court that the case comes within the provisions of this article, the court shall make an order appointing a referee to take such testimony and prescribing the manner in which and the persons to whom notice shall be given of the time and place at which the testimony will be taken before said referee. If it shall appear from the petition that the person or persons to be examined reside without the state, the judge to whom the petition may be presented may direct that a commission be issued to one or more competent persons named therein to examine the person or persons named therein under oath upon the interrogatories annexed to the commission; to take and certify the deposition of each witness, and to return the same and the commission according to the directions given in or with the commission; and for this purpose the judge shall make an order directing that interrogatories be settled on notice to persons who, from the petition it may appear, may be adversely affected by the testimony sought to be taken. All the provisions of chapter nine, title three, article two of the code of civil procedure shall apply to depositions taken without the state as herein provided; and a deposition taken and filed in accordance with the provisions thereof and of this article, shall have the same force and effect as the depositions of a witness before a referee as herein provided, if, before it may be read in evidence, the petition and order under which it was taken and proof of service of all the notices required by this article, shall be filed in the office of the clerk of the county in which the real estate is situated, and the deposition or a certified copy thereof shall be recorded in the office of the register, or, if there be none, of the county clerk, of the county in which the real estate is situated. Id. Am'd by L. 1913, c. 140 (in effect March 27, 1913). § 1688g. [Added, 1901; am'd, 1913.] Referee to take deposition. Before proceeding with the testimony, the referee shall require proof that due notice of the hearing has been given in accordance with the directions in said order contained, and thereupon the referee must proceed to take the depositions of the persons proposed to be examined, as stated in the petition, at the time and place mentioned in the notice, and may from time to time adjourn the examination to another day and another place within the same county. All the provisions of sections 854, 855, 856, 857 and 858 of the code of civil procedure apply to the examination of a person taken before a referee as prescribed in this article. Id. Am'd by L. 1913, c. 140 (in effect March 27, 1913). § 1688h. [Added, 1901.] Examination; deposition to be signed and certified. The referee upon every examination taken as prescribed in this article must insert therein every answer or declaration of the person examined, which any party to the said proceeding requires to be inserted. If upon the examination before the referee the person examined refuses to answer any question, the referee must report the fact to the court or a judge thereof, who must determine whether the witness is bound to answer the question. The deposition when completed must be read and subscribed by the persons examined, certified to by the referee, and within ten days thereafter must, together with the petition and order under which it was taken, and proof of service of all the notices required by this article, be filed in the office of the clerk of the county in which it was taken, and the said deposition or a certified copy thereof must be recorded in the office of the register (or clerk where there is no register) of the county in which the real estate is situated. Id. § 16881. [Added, 1901; am'd, 1913.] Depositions as evidence. Subject to the provisions of this article, the depositions taken before a referee or pursuant to a commission or a certified copy thereof may be read in evidence by any party to an action or proceeding, which shall involve the title to such real property, as against the person on whose petition said depositions were taken, each person to whom notice of the taking of such depositions was given as directed in the order appointing the referee, and all persons claiming from, through or under them or any of them. Id. Am'd by L. 1913, c. 140 (in effect March 27, 1913). TITLE II. Actions relating to chattels. Article 1. Action to recover a chattel. 2. Action to foreclose a lien upon a chattel. ARTICLE FIRST. Action to recover a chattel. Sec. 1689. Joinder of action with others. 1690. When it cannot be maintained. 1691. Id.; after judgment against the plaintiff. 1692. Id.; by an assignee. 1693. Jurisdiction, etc., when replevin precedes summons. 1695. Affidavit therefor, before commencement of action. 1696. Id.; after commencement of action. 1697. Id.; where several chattels are to be replevied. 1698. Provision where a part only is replevied. 1699. Plaintiff's undertaking for replevin. 1700. How chattel to be replevied. 1701. Id.; Low taken from a building, etc. 1702. Replevied chattel; how kept, etc. 1703. When defendant may except to sureties; proceedings thereupon. 1704. When defendant may reclaim chattel; proceedings thereupon. 1705. Sureties; when and how to justify. 1706. When and to whom sheriff must deliver chattel. 1707. Penalty for wrong delivery by sheriff. 1708. Undertaking; to whom delivered. 1709. Claim of title by third person; proceedings thereupon. 1710. Action against sheriff upon such claim. 1711. Indemnity to sheriff against such action. 1712. When agent, etc., may make affidavit for replevin or return. 1713. Second and subsequent replevin; proceedings thereupon. 1714. Replevin, where order of arrest has been granted. 1715. Return, etc., by sheriff. 1716. Id.; how compelled. 1717. Replevin papers to be made part of judgment-roll, etc. 1718. Action not affected by failure to replevy. 1719. When and how plaintiff may abandon his claim as to part. 1720. Title; how stated in pleading. 1721. Taking, etc.; how stated in complaint. 1722. Damages, when chattel injured, etc., by defendant. 1723. Answer of title in third person. 1724. Answer that property was distrained doing damage. 1725. Defendant may demand judgment for return. 1726. Verdiet, etc., what to state. 1727. Substitute in certain cases for finding as to value. 1728. Verdict, etc., for part of several chattels; judgment thereupon. 1729. Damages. bow ascertained on default. 1730. Final judgment; docketing the same. 1731. Execution; contents thereof. 1732. Id.; sheriff's power to take chattel. 1733. Action on undertaking; when maintainable. 1734. Sheriff's 1eturn, evidence therein. 1735. Injury, etc., no defence. 1736. Abatement and revival of action. 1689. Joinder of action with others. Nothing in this title is to be so construed, as to prevent the plaintiff from uniting, in the same complaint, two or more causes of action, in any case specified in section 484 of this act. New. § 1690. [Am'd, 1894.] When it cannot be maintained. An action to recover a chattel cannot be maintained in either of the following cases: 1. Where the chattel was taken by virtue of a warrant, agrinst the plaintiff, for the collection of a tax, assessment or fine, issued in pursuance of a statute of the State or of the United States; unless the taking was, or the detention is, unlawful, as specified in section 1695 of this act. 2. Where it was seized by virtue of an execution, or a warrant of attachment, against the property of the plaintiff, unless it was legally exempt from such seizure, or is unlawfully detained, as specified in section 1695 of this act. 3. Where is1 was seized by virtue of an execution, or a warrant of attachment, against the property of a person other than the plaintiff, and at the time of the commencement of the action the plaintiff had not the right to reduce it into his possession. From 2 R. S. 522 (Part 3, c. 8, tit. 12), §§ 4, 5. Am'd by L. 1894, c. 305. § 1691. Id.; after judgment against the plaintiff. Where a chattel is replevied, in an action to recover the same, and a final judgment awarding the possession thereof to the defendant is rendered, a subsequent action to recover the same chattel cannot be maintained by the plaintiff, for the same cause of action. But the judgment does not affect his right to maintain an action to recover damages, for taking or detaining the same or any other chattel, unless it was rendered against him upon the merits. From 2 K. S. 532, § 62. § 1692. Id.; by an assignee. An action to recover a chattel, the title to which has been transferred to the plaintiff, since the wrongful taking, or during the wrongful detention thereof, with or without the damages sustained by the taking, withholding, or detention, may be maintained in any case, where, except for the transfer, such an action might be maintained, by the person from or through whom the plaintiff derives title; but not otherwise. New. § 1693. Jurisdiction, etc., when replevin precedes sum mons. Where a chattel is replevied before the service of the summons, as prescribed in this article, the seizure thereof by the sheriff is regarded as equivalent to the granting of a provisional remedy, for the purpose of giving jurisdiction to the court, and enabling it to control the subsequent proceedings in the action; and as equivalent to the commencement of the action, for the purpose of determining, whether the plaintiff is entitled to maintain the action, or the defendant is liable thereto. New. § 1694. Plaintiff may require sheriff to replevy. The plaintiff may, when the summons is issued, or at any time afterwards, and before the service of a copy of the defendant's answer, or, where judgment is taken by default for want of an appearance or pleading, before the entry of the final judgment, cause the chattel, to recover which the action is brought, to be replevied by the sheriff of the county where it is found. For that purpose, he must deliver to the sheriff an affidavit and a written undertaking, as prescribed in the following sections of this article, with a written requisition, indorsed upon or annexed to the affidavit, and subscribed by his attorney, to the effect, that the sheriff is required to replevy the chattel described therein. The 1 So in the original ("is" for "it"). |