§ 1251, Consol. Act. § 1252, Consol. Act. $81253, 1276 Consol. Act. ARTICLE THIRD. PROVISIONS EXCLUSIVELY APPLICABLE TO THE PROCEED- § 3177. In an action specified in subdivision second of section three hundred and seventeen of this act, the plaintiff may apply for an order of arrest, to accompany the summons, in the form and to the effect specified in the next section. If snch an order is granted, the proceedings in the action must be conducted as prescribed in this article. The justices of the court, or a majority of them, may, from time to time, by one or more general rules, attested by the hands of the justices making the same, and filed with the clerk, regulate the manner in which an application for such an order may be made, and the cases in which an undertaking may be dispensed with. Until regulations are so established, the justice to whom the application is made, may, in his discretion, require or dispense with an undertaking there upon. § 3178. The order of arrest, granted as prescribed in the last section, must require the sheriff to arrest the de-I fendant, and to bring him forthwith before the court, at the chambers thereof; or if, when he is arrested, the court, is not in session at chambers, to hold him to bail, in a sum specified in the order, for his personal attendance at the opening of the court, on the next day thereafter, when it is in session at the chambers thereof. The order must also direct that the defendant be summoned to answer the complaint in the action forthwith. Thereupon the summons must conform to the order. 3179. The sheriff, upon arresting the defendant, by virtue of such an order, must, at the same time, serve upon him the summons, and also a copy of the order of arrest, and of the papers upon which it was granted. He must forthwith bring the defendant before the court, at the chambers thereof, if the court is then in session at chambers; otherwise, unless bail is given, as prescribed in the next section, he must take the defendant to the jail of the city and county of New York, for the confinement of prisoners in civil causes. The keeper thereof must confine the defendant therein. On the next day thereafter, when the court is in session at chambers, the sheriff must take the defendant from the jail, and bring him before the court, sol. Act. § 3180. The defendant may give bail, by delivering to $1254, Coathe sheriff a written undertaking to the plaintiff, in the sum specified in the order of arrest, executed by one or more sureties, to the effect that the defendant will attend in person at the opening of the court, at the chambers thereof, on the next day thereafter when it is there in session; or he may deposit with the sheriff the sum specified in the order of arrest. In either case, the sheriff must forthwith release him from custody. § 3181. Where bail is given, as prescribed in the last $1255, Consection, the officer taking the acknowledgment of the sol. Act. undertaking, must, if the sheriff so requires, examine under oath, to a reasonable extent, the persons offering to become bail, concerning their property and their circumstances. The defendant may give bail, or make the deposit, immediately upon his arrest, at any hour of the day or night; and he must have reasonable opportunity to seek for and to procure bail, before being committed to jail. Where a deposit is made, the money deposited must, before the expiration of the next day thereafter, not being Sunday or a public holiday, be paid by the sheriff, into court, to the credit of the action, as prescribed in section three thousand one hundred and sixty-four of this act. sol. Act. 3182. At any time after the return of the sheriff, and § 1256, Conbefore final judgment, a justice of the court may admit a defendant in custody to bail, or allow him to make a deposit; and may direct his release, upon his giving bail or making the deposit accordingly. The sum to be deposited, or the sum specified in the undertaking of the bail, must be fixed, and the sureties in the undertaking must be approved, by the justice; who must be satisfied, by their examination, or by other proof, respecting their sufficiency. The undertaking must be to the effect that the defendant will, at all times, render himself amenable to any mandate which may be issued, to enforce a final judgment against him in the action. Article fourth of title first of chapter seventh of this act, applies, where bail is given as prescribed in this or the last section. § 3183. Unless bail is given, or a deposit is made, as prescribed in the last three sections, the defendant must remain in the jail by virtue of the order of arrest, until final judgment in the action; and, if the judgment is against the defendant, until the return of an execution against property, issued thereupon. But the court must direct him to be brought into court, at the time of the trial; and it may, in its discretion, direct him to be brought into court at any other time. In either case, he must be taken from the jail, and brought into court accordingly. § 3184. The sheriff, after serving the summons and executing the order of arrest, must make a full return of his proceedings thereupon, to the court at chambers. The return must be made forthwith, unless the court is not § 1257, Consol. Act. $1258, Consol. Act. $1259, Consol. Act. $1260, Consol. Act. $1261, Con1. Act. then in session at chambers; in which case it must be made immediately after the opening of the court, on the first day thereafter, when it is there in session. If the defendant has given bail, the undertaking of the bail must be returned, to be delivered to the plaintiff when the court so directs. § 3185. Unless both parties sooner appear, the court must wait one hour after the return; or, if the defendant has given bail, one hour after the opening of the court. As soon after the parties appear, or after the expiration of the hour, as the business upon which the court is then engaged will permit, the court must take up the cause. If the plaintiff does not then appear, a judgment dismissing the complaint, with costs, must be rendered. If the defendant does not then attend in person, the plaintiff must then make his complaint, and the defendant's default must be entered. If the plaintiff appears and the defendant attends in person, the pleadings must then be made, and issue must be joined. The pleadings may be oral or writ ten; if they are oral, the clerk must enter the substance thereof in the minutes. If either party desires a trial by a jury, he must demand the same, at the time of the joinder of issue; otherwise the issue must be tried by the court, without a jury. § 3186. Where a trial by jury is duly demanded, the court at chambers must direct the issue to be tried, at a trial term, upon such notice as it deems proper, or without notice, it may also direct that the action have a preference upon the day calendar, either generalry or for a particular day; and it may give such-direction as it deems proper, with respect to filing a note of issue. Where a trial by jury is not duly demanded, or where the defendant is in default, the evidence must then, or at such subsequent time, either at chambers or at a trial term or special term, as the court at chambers appoints, be given; and thereupon final judg ment must be rendered. But the issue must be appointed to be tried, within six days after the joinder thereof, unless both parties assent to a longer time; or a trial by jury is demanded, and there is no term of the court, at which it can be had, within that time. The trial cannot be adjourned, without the consent of both parties, beyond three calendar months from the joinder of issue. § 3187. This article does not prevent the plaintiff from commencing, and conducting in the ordinary manner, an action, for a cause specified in subdivision second of section three hundred and seventeen of this act. § 3188. An appeal, to the general term of the court, $$1206, 1278 may be taken from a final judgment rendered therein, in Consol.Act a case where an appeal may be taken to the general term of the supreme court, from a final judgment rendered therein, as prescribed in section one thousand three Hundred and forty-six of this act. § 3189. An appeal, to the general term of the court, § 1257, Conmay also be taken from an interlocutory judgment ren- sol. Act. ered, or an order made, at a special term or a trial term thereof, or an order made by a justice thereof, out of court, in a case, where an appeal may be taken to the general term of the supreme court, from an interlocutory judgment rendered, or an order måde, in like manner, as prescribed in sections one thousand three hundred and fortyseven, one thousand three hundred and forty-eight, and one thousand three hundred and forty-nine of this act. § 3190. An appeal, authorized by the last section, must § 1268, Conbe taken within ten days after service of a copy of the sol. Act. judgment or order appealed from, and a written notice of the entry thereof. In every other respect, titles first and fourth of chapter twelfth of this act, apply to and govern an appeal, taken as prescribed in either of the last two sections. § 3191. [Am'd 1882.] An appeal may be taken to the court of common pleas for the city and county of New York, from an actual determination, made by the marine court of the city of New York, at a general term thereof, in either of the following cases: 1. Where a final judgment has been rendered, upon an appeal taken to the general term. 2. Where an order has been made, granting a new trial. But an appeal cannot be taken, from an order granting a new trial, upon a case or exceptions, unless the notice of appeal contains an assent, on the part of the appellant, that if the order is affirmed, judgment absolute may be rendered against the appellant. 3. Where an order has been made which grants, refuses, continues, or modifies a provisional remedy; or, where it involves some part of the merits, or where it affects a substantial right, or where, in effect, it determines the action and prevents a judgment from which an appeal might be taken. $1269, Con sol. Act. 431. $1270, Consol. Act. § 1271, Consol. Act. § 1273, Consol. Act. § 1274, Consol. Act. SS 3192, 3198 § 3192. Titles first and third of chapter twelfth of this act apply to and govern an appeal, taken as prescribed in the last section, except as otherwise expressly prescribed in the next two sections. § 3193. An appeal, authorized by the last section, must be taken within twenty days after service of a copy of the judgment or order appealed from, and a written notice of the entry thereof. The appeal must be heard at a general term of the appellate court. 3194. The judgment or order of the appellate court must be remitted to the court below, to be enforced according to law. Upon an appeal from an order granting a new trial, on a case or exceptions, if the appellate court determines that no error was committed in granting the new trial, it must render judgment absolute upon the right of the appellant; and thereupon an assessment of damages, or any other proceeding, requisite to render the judgment effectual, may be had in the marine court. § 3195. Upon an appeal to the court of appeals, the notice of appeal and undertaking must be filed with the clerk of the marine court, who must transmit the necessary papers to the court of appeals; and the judgment or order of the court of appeals must be remitted to and enforced by the marine court. TITLE II. The mayor's court of the city of Hudson, and the recorder's courts of the cities of Utica and Oswego. § 3196. Civil jurisdiction pre scribed. 8197. Certain pending actions, 3198. Id.; certain papers, etc., § 3199 Power of supreme court, in actions, etc., so transferred. 3200. Proceedings in case of judge's disability. 3201. Services of subpoenas. 3202. Effect of this title limited. § 3196. The civil jurisdiction of the mayor's court of the city of Hudson, the recorder's court of the city of Utica, and the recorder's court of the city of Oswego, extends only to an action whereof jurisdiction is expressly conferred upon the court, by a provision of a statute incorporating, or otherwise specially relating to the government of, the city wherein the court is located. § 3197. Every civil action, now pending in either of those courts, other than an action specified in the last section, is hereby transferred to the supreme court; and the subsequent proceedings therein, before and after the judg ment, must be the same, as if the action had been commenced in the supreme court. § 3198. All judgment-rolls, and other records, and all books and papers, relating exclusively to civil actions, other than an action specified in the last section but one, now remaining in either of those courts, must be delivered by the |