ANNOTATIONS CONTAINING IMPORTANT DECISIONS RELATING TO THE CODE OF CIVIL PROCEDURE Title. Code applies only to civil action and proceedings, except where otherwise provided. Perry v. The People, etc. 86 N. Y. 353. & 2. Circuit courts where independent tribunals. Fifth Ave. Bank v. 42nd St. R. R. Co. 6 App. Div. 569. & 4. Cases not provided for, former practice governs. Mut. L. Ins. Co. v. Bigler, 79 N. Y. 568. Supreme court may determine, in certain cases whether probate of will in foreign State is obtained by fraud, Davis. v. Cornue, 151 N. Y. 172. Rule as to torts. Dewitt v. Buchanan, 54 Barb. 31; 7 Lansing, 210; Hatfield v. Sisson, 28 Misc. 255; 59 N. Y. Supp. 73; Wertheim v. Clergue, 53 A. D. 122. State courts have jurisdiction of certain actions in bankruptcy. Wheelock v. Lee, 74 N. Y. 495; Ausley v. Patterson, 77 N. Y. 156. State courts may refuse to exercise jurisdiction affecting non-residents. Burdick v. Freeman, 120 N. Y. 420. Where State courts have no jurisdiction over foreign executors. Field v. Gibson, 20 Hun, 274; receivers, Smith v. McNamara, 15 Hun, 447; personal property outside the State D. Ivernois v. Leavitt, 23 Barb. 63. Powers of ecclesiastical courts defined. Baxter v. McDonnell, 18 App. Div. 235. § 5. & 6. & 7. & 8. & 9. & 10. 11. § 13. $ 14. Where evidence is revolting court may exclude the public from trial. People v. Hall, 51 App. Div. 57. Law making Saturday half-holiday does not prohibit holding of court after twelve o'clock M. People v. Kearney, 47 Hun, 129. As to Sundays and holidays see 29 A. N. C. 1790. As to election day see People v. Donovan, 135 N. Y. 76. Sunday extends from midnight to midnight. Butler v. Kelsey, 15 Johns. 177.. Section of N. Y. charter providing for holding court on Sunday, not void. People v. Warden, 73 App. Div. 174. What constitutes a court see People v. Allen, 55 N. Y. 31. Court may exercise such control over proceeding as to protect all persons interested. Baldwin v. Mayor, 42 Barb. 549. Refusal to answer before grand jury contempt. Matter of Taylor, 8 Misc. 159; 28 N. Y. Supp. 500. Court cannot impose costs on offender. Boon v. McGucken, 22 N. Y. Supp. 424; Stubbs v. Ripley, 39 Hun, 626. Judge may wait until contempt is formally presented. People ex rel. Choate, 9 . Y. Supp. 321. Mand te must set forth in what particular the person is guilty of contempt. People v. The Court of Sessions, 147 N. Y. 290. Punishment for contempt in civil action no bar to indictment. People v. Criminal and civil contempt distinguished. People ex rel. McKane, 78 Hun. 154. See also 144 N. Y. 249; People ex rel. v. Court of Oyer and Terminer 10 N. Y. 245; contempt proceedings are special roceedings, Watrous v. Kearney, 79 N. Y. 496; internosing false answer not liable for contempt, Fromine v. Gray, 148 N. Y. 675; court may strike out answer as punishment for contempt. Gray v. Gray, 84 Hun, 347; 54 App. Div. 241 failure to obey judgment is contempt. Klau v. Weyman, 74 Hun, 1; 56 St. Rep. 163; 26 N. Y. Supp. 285; Barnard v. Grautz, 70 Hun, 413. What must appear to punish debtor. Moyer v. Moyer, 7 App. Div. Jackson v. Murray, 25 App. Div. 140. Advice of council no excuse. Boon v. McGuckin, 22 N Y. Supp. 424 As to power of court to punish for contempt. See Nuccio v. Porto, 72 App. Div. 88; 76 N. Y. Supp. (11 St. Rep.) 96; Muzella v. Ryan, 73 App. Div. 137. As to when judgment directing payment of money not enforcible as contempt. See Harris v. Elliott, 163 N. Y. 269. 7233 § 15. & 17. As to enforcement of decree of Surrogate's court. See Matter of Hum freyville, 154 N. Y. 115. General term cannot change rules established by Code. Gormerly v. McGlynn, 84 N. Y. 284. Rules of court have force and effect of statutes. Matter of Warde, 154 N. Y. 342. § 18. As to State paper. See Ch. 248 of Laws of 1893. & 22. & 23. $ 25. $ 26. § 34. As to practice of referring to certain parts of pleadings as "at", or "between' certain folios. See Caulkins v. Bolton, 98 N. Y. 511. Hunt v. Barry, Not applicable to executions delivered to constables. 6 N. Y. Supp. 568. Omission of teste in execution is mere irregularity. Douglass v. Haberstro, 88 N. Y. 611. Judge out of office cannot decide case heard while in office. Matter of Mayor of N. Y. 139 N. Y. 140. Proceedings commenced by one judge may be continued before another competent to have begun it. Dresser v. Van Pelt, 15 How. 19. Power to adjourn is not limited to this section. People v. Sullivan, 115 N. Y. 185. Orders purporting to have been made by court are presumed to have been made at regular term thereof. People v. Cent. City Bank, 53 Barb. 412. 46. Judge of appellate division may participate in decision, although he did not hear argument. Wittleder v. Citizens' El. Ill. Co., 47 App. Div. 543. As to prohibited relationship. See Matthews v. Noble, 25 Misc. 674; People v. Clark, 62 Hun, 84. Disqualification cannot be waived. Murdock v. Int. Title and Trust Co., 14 Misc. 225. Prohibition applies to all trials, civil and criminal. People v. Connor, 142 N. Y. 130. Right of an interested judge to act to prevent failure of justice. Matter of Ryers et al, 72 N. Y. 1. $ 52. $ 55. § 56. $ 66. Judge out of office cannot decide issue or motion. Matter of Mayor of N. Y., 139 N. Y. 140. Where party has appeared by attorney adversary must thereafter deal with attorney. Chadwick v. Snediker, 26 How, 60. See also McBratney v. R. W. & O. R. R. Co., 87 N. Y. 467. Attorney in certain cases may discontinue action before judgment. Woodford v. Rasbach, 6 Civ. Pro. R. 315. May open default. Read v. French, 28 N. Y. 285. May bind client as to expenses. Covell v. Hart, 14 Hun, 252. Within two years may satisfy judgment. Woodford V. Rasbach. 6 Civ. Pro. R. 315 Attorney cannot substitute another as attorney of record. People v. Mayor, II Abb. 66. Cannot make compromise. Barrett v. 3rd Ave. R. R. Co., 45 N. Y. 628. Affidavit cannot be taken before attorney in action. Taylor v. Hatch, 12 Johns. 340. Authority of attorney ceases when final judg ment is perfected. Eager v. Rooney, 38 How. 121; Robinson v. Brennan, 90 N. Y. 208. Client may change attorney. Hoofman v. Van Nostrand, 14 Abb. 336. Law School graduate may apply for admission in a department other than where he resides. Matter of Burchard, 27 Hun, 429. Alien may not be admitted. Matter of O'Neil, 90 N. Y. 584. Where defendant settles after cause is on calendar, court may impose costs to the attorney. Nat. Ex. Co. v. Crane, 167 N. Y. 500. Court may fix compensation. Griggs v. Brookes, 79 Hun, 394. Compensation of attorney ssigned in capital case. People v. Barone, 161 N. Y. 475. People v. Ferran, 162 N. Y. 545. Attorney assigned cannot receive further allowance for arument on appeal. Matter of Purdy, 28 Misc. 303. See also People v. Ferran, 162 N. Y. 545. Court may assign more than one counsel. People v. Heiselbetz, 26 Misc. 100. Courts criticise agreements narrowly. Whittaker v. N. Y. & H. R. R. Co., 11 Civ. Pro. R. 189; Port v. Mason, 26 Hun. 187; aff'd 91 N. Y. 539. Devise to attorney will be scrutinized carefully. Newhouse v. Godwin, 17 Barb. 236. Agreement as to contingent fee need not be in writing. Fitch v. Jardenie, 2 Keyes, 516. Attorney has lien on legacy of client. Matter of Regan, 29 Misc. 527. On judgment of Surrogate's court. Matter of Regan, 167 N. Y. 338. No lien on certain funds in Surrogate's court. Adee v. Adee, 55 App. Div. 63. Must show performance on his part. Halbert v. Gibbs, 16 App. Div. 126. Lien only arises after judgment. Randall v. Van Wagener, 115 N. Y. 527. Not limited to action on contract. Extends to all actions. Whittaker v. N. Y. & H. R. R. Co., 11 Civ. Pro. R. 189. $ 67. $68. Attorney entitled to costs in an action as of legal right. Guliam v. Whitenack, 9 Misc. 562. No notice of lien necessary to adverse party. Keeler v. Keeler, 51 Hun, 505: Only necessary to defeat subsequent bona fide payment. Williams v. Ingersoll, 89 N. Y. 508. Lien is presumed to the amount of costs. If he demands greater lien he must protect by notice. Oliwell v. Verdenhalven, 17 Civ. Pro. R. 362. As to attorney's lien see Peri. v. N. Y. C. & H. R. R. Co., 152 N. Y. 521. Attorney may continue case to judgment. Pilkington v. Brooklyn Hts. R. Co., 49 App. Div. 22. When lien not waived. Matter of King, 168 N. 1. 53. Until lien is asserted, judgment remains property of client. Poole v. Belcha, 131 N. Y. 200. Motion for substitution must contain allegation of misconduct. Matter of Mitchell, 57 App. Div. 22. Substitution may be ordered with costs. Sheldon v. Mott, 91 Hun, 637. Where attorney is charged with felony, court will await criminal trial before disbarring. Rochester Bar Ass'n v. Dorthy 152 N. Y. 596. As to debarrment of attorney see also Matter of Randall, 158 N. Y. 216. It is duty of court to prefer charges where he has knowledge of misconduct. In the Matter of Percy, 36 N. Y. 651. Court may reprimand attorney in open court. Matter of Reifschneider, 60 App. Div. 478. Remedy for misconduct is by summary proceedings. Foster v. Tounsend, 68 N. Y. 203. Conviction must be on evidence good at common law. Matter of an attorney, 83 N. Y. 164. Proceeding is not a trial, but an investigation. People v. Dorthy, 20 App. Div. 320. $ 69. As to effect of removal, etc., see People v. Dorthy, 20 App. Div. 320. & 70. Provision does not relate to transactions before suit is brought. Loof v. Lauton, 97 N. Y. 478. Illegal intent must be shown. West v. Kurtz, 15 Civ. Pro. 424. 424Fact that & 73. Mere fact of purchase of bond and mortgage by attorney not sufficient. Judg. - ment is one of non-suit. Gilroy v. Badger, 27 Misc. 640. assignee was attorney is not sufficient. Creteau v. Foote, etc. Co., Civ. 40 App. Div. 215. $ 74. $ 102. $ 108. $ 111. $ 135. § 155. § 158. $ 190. $191. Agreement to divide fees void. Hess v. Allen, 24 Misc. 393; Hirschback v. Ketchum, 5 App. Div. 324. See also Irwin v. Curie, 56 App. Div. 514. Sheriff must use reasonable efforts to execute process. Hinman v. Borden, 10 Wend. 367. Sheriff liable in damages. Wehle v. O'Connor, 69 N. Y. 546. See also Dunford v. Weaver, 84 N. Y. 452. See also McGurie v. Bausher, 52 App. Div. 276. If no indemnity tendered, and sheriff is in doubt he must call jury. Curtis v. Patterson, 8 Cow. 65. v. Solomon, 105 Section relates to final process or mandate only. Levy 58. Time, how N. Y. 529. . Attorney for plaintiff may make affidavit. Salisbury v. Cooper, 33 Misc. 558; 68 N. Y. (102 St. Rep.) 876. Going beyond liberties without necessity, is escape. Bissell v. Kip. 5 Johns. 89. To constitute escape prisoner must go beyond liberties. Cor tis v. Dailey, 21 App. Div. 4; Flynn v. U. S. & G. Co., 61 App. Div. 170; 70 N. Y. S. (104 St. Rep.) 403. To what extent sheriff is liable. Dunford v. Weaver, 84 N. Y. 445. Appeals as of right can only be taken from final judgments and f" 1 orders. Van Arsdale v. King, 155 N. Y. 325; Stevens v. Cent. Nat. D 162 N. Y. 254. Appeal will not lie from order in action. Hammond Nat Life Ass'n, 168 N. Y. 262. Burden of showing that appeal was >1 well taken is upon respondent. Laidlaw v. Sage, 158 N. Y. 87. are orders, finally determining." See Matter of Small, 158 N. Y. 12 Village of Champlain v. McCrea, 165 N. Y. 264; Hammond v. Nat. Life Ass'n. 168 N. Y. 262. Subd. 1. As to questions certified, see Re Westerfeld, 163 N. Y. 209; Pringle v. L. I. R. Co., 157 N. Y. 101. Subd. 2. On motion to dismiss appeal under this subdivision burden is on moving party. Kaplau v. N. Y. Biscuit Co., 151 N. Y. 171. Applies § 193. § 194. § 217. Unani to special proceedings. People ex rel. v. Barker, 152 N. Y. 417. Subd. 3. Court of Appeals may determine whether a question of fact Fact that decision was unanimous should appear in record. Court cannot makes rules inconsistent with Code. Gormerly v. McGlynn, 84 N. Y. 284. After judgment absolute and remittitur sent down, proceedings may be had in court below. Langdon v. The Mayor, 133 N. Y. 629. Has general supervisory power over inferior jurisdiction. Bradhurst v 1st Great S. W. Turnpike Co., 16 Johns. 8. Has power over infants' real estate. Matter of Bookhout, 21 Barb. 348; Matter of Price v. Hewson, N. Y. 231. 67.990. Over the person of infants. Matter of Hubbard, 82 N. Concurrent jurisdiction in certain cases. Ludwig v. Bungart, 48 App. Div. 613. May determine validity of wills. Drake v. Drake, 41 Hun, 366. May restore to parents child committed to institution. Mat ter of Knowack, 158 N. Y. 487. $ 220. Appellate Division has jurisdiction of former General Term. Matter of Pyc, 21 App. Div. 266. $ 235. Judge cannot waive his disqualification to review. Murdock v. Int. Tile & Turning Co., 14 Misc. 225. Judge at chambers has same power as chancellor out of court. Wilcox v. Wilcox, 14 N. Y. 575. Extra allowance must be made by court and not by judge at chambers. Main v. Pope, 16 How. 271. § 241. County Judge has same power as Supreme Court Judge at chambers. 121 N. Y. 679. § 264. Jurisdiction of court discussed. People ex rel. Grannis v. Roberts, 45 App. Div. 145. § 275. § 315. § 340. An appeal does not lie from order of Court of Claims. Withers v. State, 61 App. Div. 251. City court is limited to jurisdiction conferred by Legislature. Effroy v. Subd. 1. Has not jurisdiction of equitable action to set aside transfer Subd. 3. 148 N. Subd. 4. 415. Raven v. Smith, Concurrent jurisdiction of lunatic's estate. Re Wing, 83 Hun, Powers of special county judge. People v. Burnham, 22 App. Div. 616. Powers of county judge. See Webb v. Bartley, 54 N. Y. 164. Section refers to right of possession, not to actual possession. v. Reilly, 38 App. Div. 164. 284. § 348. $ 365. $ 366. $ 368. What facts do not raise presumption of possession. Deering 121 N. Y. 626. Burden of proof is on person contesting title. Lambert v. Huber, 22 Misc. 462. As to land under water, see Delancey v. Hawkins, 23 App. Div. 8. When possession presumed to be under title. Doherty v. Matsell, 119 N. Y. 646; Baker v. Oothout, 123 N. Y. 16. Possession must be under claim of title Higginbotham v. Stoddard, 72 N. Y. 4: Cutting v. Burns, 57 Ann. Div. 185. Claim under tax title. Bedell v. Shaw, 59 N. Y. 46. Religious corporation may lose title by adverse possession. Reformed Church v. Schoolcraft, 65 N. Y. 148. Occupation subordinate to legal title. See De Lancey v. Piepgras, 138 N. Y. 26.; Archibald v. N. Y. C. & H. R. R. Co., 157 N. Y. 579; Lewis v. N. Y. & H. R. R. |