as to criminal proceedings and is inserted here to take care of its application to civil matters. 9. § 961b. This statute consists of two sections, one of which appears in the text and the other of which provides when the act shall take effect. The word " criminal" is not necessary, as the rules of evidence in civil cases are applicable to criminal cases except as otherwise provided in the Code of Criminal Procedure (Code of Criminal Procedure, § 392). 10. § 961c. This section is a consolidation of L. 1884, Ch. 376, §§ 1, 2. It is the whole of the statute and the only change made is the change of the word "act" to section." The statute relates to the subject of evidence which is treated in the Code and has been consolidated therefore in the Code. The second section of the act is the last sentence of the section as incorporated in the text. 11. § 961d. This statute has not been inserted in the Code of Criminal Procedure because the rules of evidence in civil cases apply to criminal cases (Code of Criminal Procedure, § 392). The last sentence has been omitted as having no practical use, the statute having been enacted in 1888. 12. § 961e. This section is the whole of L. 1890, Ch. 158, section 2 of the statute being the clause relating to when the statute shall take effect. It is a provision relating to evidence, and as these provisions are now contained in the Code of Civil Procedure the statute has been incorporated under its appropriate head in the Code of Civil Procedure. 13. § 961f. The statute incorporated in the text consists of two sections. The second section provides for the taking effect of the statute and has been omitted as unnecessary. The whole of the first section has been consolidated as a part of the Code of Civil Procedure relating to evidence. 14. § 1323a. This section is the fourth section of Code of Civil Procedure, § 83. The remainder of the section is consolidated in Judiciary Law, §§ 14, 24, 295–297, 301. The word "such" in the section as contained in the Code of Civil Procedure relates to "the presiding" judge, and by reason of the removal of the balance of the section it becomes necessary to insert the words "the presiding" in place of the word such." This provision has been retained in the Code of Civil Procedure as practice matter, while the remainder of the section relating to court stenographers has been placed under appropriate heads in the Judiciary Law. 15. § 1404a. The provision incorporated in the text is L. 1880, Ch. 393. Section 2 of the statute is the provision relating to the time when the statute shall take effect, and has been omitted as unnecessary. The statute relates to the exemption of exhibits at exhibitions and as similar provisions are in the Code of Civil Procedure the statute has been placed in its appropriate surroundings. 15a. § 2344a. This section. relating to the power of the snpreme court to compel the performance of certain contracts made by incompetent persons while capable of contracting, has been inserted in the Code of Civil Procedure, since it deals with the power of the court and has no other proper classification. The matter embraced in the section is that contained in L. 1880. Ch. 423, as amended by L. 1885. Ch. 267. § 2. The statute of 1880 amended R. S., Pt. 2. Ch. 5. Tit. 2. § 22. by changing the reference to the court of chancery to the supreme court and adding certain new matter. This statute seems to be alive, since the amendment was passed subsequent to but at the same session as the Code of 1880, and was subsequently recognized and amended by the Legislature by L. 1885, Ch. 267, § 2. Throop in his note to § 2345 says with reference to the amendment made by Ch. 423: "It is supposed that this amendment fell with the repeal of this section of the revised statutes which took effect September 1, 1880," and in a later edition says that Ch. 423 is substantially embodied in the amendment of Code, § 2346, made by L. 1882, Ch. 399, which is the last sentence of § 2346 of the present Code. There is some variation and it has been deemed best to preserve the provision of the Revised Statutes as consolidated in the text. In connection with this section see Code of Civil Procedure, chapter 17, title 7, relating to the disposition of the real property of an infant, lunatic, idiot or habitual drunkard. Section 22 of the Revised Statutes incorporated provides that the court of chancery (changed by the amendment of 1880 to supreme court) "shall have authority to decree and compel the specific performance of any bargain, contract or agreement which may have been made by any lunatic or other person specified in the first section of this title." The first section referred to provides that the chancellor shall have the care and custody of "all idiots, lunatics and persons of unsound mind and persons who shall be incapable of conducting their own affairs in consequence of habitual drunkenness." Idiots, lunatics and habitual drunkards are expressly mentioned in the section as incorporated in the text which is sufficient to cover other persons of unsound mind, since the General Construction Law, § 28 (Statutory Construetion Law, § 7) defines lunatic as follows: The terms lunatic and lunacy include every kind of unsoundness of mind except idiocy." 16. § 2408a. This section contains the whole of L. 1902, Ch. 223. The second section relates to the time when the statute shall take effect. The statute has reference to foreclosure of mortgages by advertisement and properly belongs in the Code of Civil Procedure where that proceeding is now contained. 17. § 2481, subd. 12. The provisions of L. 1884, Ch. 309, as amended by L. 1900, Ch. 309, seem not to be included among the powers of a surrogate as defined in the Code of Civil Procedure. Hence the insertion of § 1. Section 2 is a validating provision applicable to acts done prior to 1884 and has been treated as special and left unrepealed. 18. § 2509, subd. 7. This subdivision is part of L. 1889, Ch. 330, as amended by L. 1895. Ch. 544. Section 1 of the statute is in the County Law (§ 168) and § 2 has been incorporated as a part of the Code of Civil Procedure as § 3306a. It is a matter that relates to the surrogate court and therefore has been placed In chapter 18 of the Code of Civil Procedure where the practice in such courts is found. The statute should not be allowed to exist as an independent statute but should be consolidated as a part of the surrogate court provisions in the Code of Civil Procedure. 19. § 2513a. This section is the portion of Code of Civil Pro cedure. § 260, not embraced in Judiciary Law, $$ 198, 382-383. The section would be out of place under title 5 of chapter 3 of the Code, entitled "County Courts," and hence it has been transferred to chapter 18, which relates to surrogate courts. The surrogate court practice, while mainly found in chapter 18 of the Code of Civil Procedure, is by no means all contained in Other sections of the Code are incorporated by that chapter. reference and other sections are by their terms made applicable. In cases where a part of a section was removed to the Judiciary or other consolidated law and the remainder of the section related to surrogate courts alone, the part remaining has been placed in its appropriate chapter in the Code of Civil Procedure relating to surrogate courts instead of being allowed to remain isolated in another part of the Code of Civil Procedure. This statement applies to $2513a found in the text and generally, to other similar cases. 20. § 3306a. The matter inserted in this section is necessitated by the omission of the word "such" and the incorporation of L. 1889, Ch. 330, § 2, as an independent section of the Code of Civil Procedure. The provision incorporated in the text is a part of the statute, a portion of which has been consolidated in the surrogate court practice as subd. 7 of § 2509. 21. § 3331a. The new words inserted in this statute are made necessary upon the consolidation of the statute into the Code of Civil Procedure because it applies to "all jurors," and § 3332 of chapter 15, title 5, excludes from the application of the title services rendered in a criminal action or special proceeding in a court or before an officer "except as otherwise expressly preThe inserted words leave the statute to apply scribed therein." as broadly as its language imports and prevents the limitation of the consolidation of civil actions and proceedings. 25. Article 8, § 2705. This statute (L. 1894, Ch. 731) exists as an independent statute apart from the Code of Civil Procedure. It relates to the probate in this country of foreign wills and should find a place in the Code of Civil Procedure. It has been made a separate article rather than a section of chapter 18, "Foreign Wills; ancillary title 3. art. 7 of the Code relating to letters," because it provides a proceeding of its own which differs from that provided in that article for probating a foreign will. Whether or not the provisions of that article apply in any respect to probate and letters testamentary under this statute is a matter for judicial construction which will not be anticipated if the The courts can then say to statute is made a separate article. what extent the provisions of article 7 apply to the provisions of the new article and their relation will be the same as if the new article had remained an independent statute. If the statute was made a section in article 7 the present relationship would be disturbed and judicial judgment would be anticipated, for throughout article 7 reference is had to conditions and proceedings prescribed therein. Section 2702 of article 7 provides that the provisions of chapter 18 relating to the rights, powers, duties and liabilities of an executor or administrator apply to a person to 66 as prescribed in this article," whom ancillary letters are granted etc. 99 sec26. 1. The reference in this section to "the next two tions has been changed to sections "two and three of the judiciary law" because Code Civil Procedure, §§ 1, 2, are contained in Judiciary Law. §§ 2, 3. now 27. § 34. Some alterations in phraseology were made necessary in the portion of the section retained in the Code of Civil Procedure. Such changes are not intended to change the present law in any way. The provisions removed from this section relate 967 to the adjournment of a term of court which is something apart from the actual trial of a cause and to the drawing and notifying of jurors for an adjourned term which precedes the actual drawing of the jury for the trial of a cause. 28. § 41. A portion of this section has been removed to the Judiciary Law (§ 10). The provision thus removed from the Code of Civil Procedure relates to the adjournment of a term of a court of record because of certain conditions, such adjournment resting in the discretion of the court. The provision that has been allowed to remain in the Code of Civil Procedure has been retained because it is a matter of practice. The words of record" have been inserted in the portion of the section retained in the Code of Civil Procedure because the preceding portion of the section which has been removed to the Judiciary Law (§ 10) made the section applicable to a court of record. 29. $60. Part of this section has been removed to the Judiciary Law (§ 470), because it relates to the right of an attorney and counselor to practice in the courts of record of the state although a resident of an adjoining state. The balance of the section which has been retained relates to the service of a paper upon him which is a practice provision and therefore has been retained in the Code of Civil Procedure. The words inserted in the portion retained in the Code of Civil Procedure are made necessary by reason of the removal of the first portion of the section and are merely a repetition of the necessary part of the portion of the section removed. 30. § 110. Section 110 of the Code of Civil Procedure refers to the "next two sections." Of these two sections, § 111 remains in the Code of Civil Procedure and § 112 has become § 240, subd. 19, of the County Law. Hence the change made in this section. 31. 127. Section 127 of the Code of Civil Procedure contains in its first sentence substantive matter and in its second sentence practice matter. The first portion of the section which relates to the removal of a sick prisoner from a jail to a hospital has no connection with an action. It has, therefore, been placed in the Prison Law ($ 385). The last sentence relates to the issuance of an execution where a prisoner escapes while going to, remaining at, or returning from a hospital to which he has been ordered removed. It is. therefore, a practice provision and has for that reason been retained as a part of the Code of Civil Procedure. 32. §§ 138. 140, 141. Sections 138-142 of article 3. title 2, chapter 2 of the Code of Civil Procedure, have been retained in the Code because containing matter in the nature of procedure. Sections 138, 140, 141 are amended in the text merely to correct references made necessary by the removal of certain substantive provisions from the Code of Civil Procedure to consolidated laws. 33. § 220. The first portion of this section down to and including the sentence "whenever the appellate division," etc., has been placed in the Judiciary Law as well as the last two sentences beginning "It shall have power to appoint." etc. The two sentences in the middle of the section beginning "No justices of the appellate division." etc., have been retained in the Code of Civil Procedure. The first part of the section which has been consolidated in the Judiciary Law relates to the makeup of the appellate division, the number that shall constitute a quorum, how many justices shall sit in any case, the designation of justices of the appellate division by the governor, the terms of office of the justices, the filling of vacancies, residence of the jus- 34.229. This section of the Code of Civil Procedure (§ 229) is amended because of the removal to the Judiciary Law of the first sentence, which provides that "A special term or a trial term of the supreme court must be held by one judge." This is not a practice provision and therefore has been placed in the Judiciary Law. 35. § 235. The last sentence of this section provides that the justices of the supreme court in the eighth judicial district may adopt and amend rules and regulations for making calendars of The cases and has been removed to the Judiciary Law where similar matters applicable in other cases have been consolidated. first two sentences of the section relate to the power of a justice of the supreme court to hold a special term, to act upon any business except where he is disqualified and to the transaction of These are all matters relating judicial business out of court. to the general subject of the powers and jurisdiction of the courts and like such matters elsewhere found in the Code of Civil Procedure have been retained in the Code, as closely related to the actual conduct of an action in court. 36. § 239. The last sentence has been removed as substantive It relates to the attendance upon matter to the Judiciary Law. the court of certain officers, such as clerks, sheriffs, criers and constables. The remainder of the section relating to the adcase upon the journment of a special term and the trial of a calendar of a term which has been adjourned, has been retained in the Code of Civil Procedure because associated with the practice in a cause. 37. § 269. Section 66 of the Code of Civil Procedure referred to in this section relates to the compensation of attorneys and counselors and their liens in actions and special proceedings and has been consolidated in the Judiciary Law under article 15, relating to attorneys and counselors. These provisions are purely substantive. The change, therefore, made in this section in the text is merely one of reference. 37a. 274. The new matter inserted in this section is L. 1884. Ch. 336, § 3. Section 3 is an express provision relating to allowances for expense of abstracts of title in certain awards by the Court of Claims and is therefore preserved. Section 274 of the Code which prohibits the allowance of disbursements in an action in the Court of Claims might be construed to refer only to Section 3 is preserved to disbursements in the course of action. The section conmeet cases where abstracts are required as a necessary expense incident to the appraisement of the damages. solidated was passed in 1884. The Code section was originally 969 |