Joel Tiffany.

The New York practice : a treatise upon practice and pleadings in actions and special proceedings in the courts of record of the State of New York (Volume 2) online

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Who not entitled to the jail liber-
ties, 75

Wliat amounts to an escape, .... 76
When debtor leaves the limits by
the consent of the creditor, the
escape is excused and debt dis-
charged, 77

Voluntary escape, 77

Sheriff cannot retake, &c., 77

Yoluntary return to custody, ... 73
Creditor may take an assignment
of the bond for the limits when
the debtor has violated the

condition, 78

Discharge under the insolvent

laws, 79

Mode of proceeding thereon, .... SO

The petition of the insolvent, ... 80

Publication of notice of order, &c., 80




Executions — Continued. Page.

Opposing creditor may demand a
jury, 81

Discharge from imprisonment, . . 81

When and for what the discharge
will be void, 81

When the execution is returnable, 8 2

The return must state the facts, . 83

May be amended by leave of
court, 83

Manner of compelling a return, . . 84.

When the judgment is in the na-
ture of a decree, 84

Proceedings supplementary to,

&c., 85

(See Proceedings supplementary to

Must have been returned before
commencing proceedings sup-
plementary to executions, .... 90

Except under the 2d part of §
292 of the Code, 90

May be returned within the sixty



Not reviewable in the court of
appeals, 112

The final determination of, be-
longs to the supreme court, ... 112


How reviewed, 114

How, without an appeal, .. 114, 115

(See Mortgages^ forchsure o/,) ... 259


Tlie nature and object of the writ, 206

Who are entitled thereto 206

Who are not 206

For what purpose it is issued, . . . 207
Will not lie to review a judg-
ment or decision of a court or

Habeas Corpus — Continued. Page,
officer having competent juris-
diction, 207

Not the proper writ to try the
right to the guardianship of an

infant, 207

The application for the writ, 208

To whom and how made 208

What is requisite when the ap-
plication is to an officer resid-
ing out of the county, 208

In what cases, &c., application
must be in the county where

the prisoner is detained, 208

What the petition must contain, . 209
Form of the writ, to whom di-
rected, 209

When copy of papers, &c., must

be annexed, 210

The application must be to the

supreme court, when, 210

To determine the rightful custody

of the infant 210

Writ, to be under the seal of the

court, 210

The indorsement thereon, 211

How and by whom the writ to be

served, 212

Proceedings in case of disobedi-
ence 213

The return of the writ, 214

Proceedings after such return,.. 215
When the prisoner is in custody
on civil process, &c., when and
how he may be discharged, . . . 217
The examination, and duty of of-
ficers, &c., 217


What may be inquired into on

the return of the writ,. . 218, 219
He may impeach the legality of

his imprisonment, 218

Diverse ways, &c., 218, 219

Construction of the stat\ite au-
thorizing the prisoner to deny
any material facts alleged, &c., 219

Evidence on such hearing, 220

How far decision is conclusive, . . 220
Penalty for concealing a prisoner
with intent to elude service of

the writ, 221

Proceedings in respect to infants, 222
Statutory provisions in respect
thereto, 223



Habeas Corpus, &c.— Continued. Page.

By what the courts are governed
in determining the custody of
infants, 224

"When the writ should be certio-
rari, 225

Persons discharged not liable to
re-arrest for same cause, .... 225

What not deemed to be same
cause, 226

Appeal, (fee, 228



Of a person dying intestate, must
be sued jointly, when sued for
the debts of the intestate, 5

Their interests are several, &c., . 5

Court may decree that debt be
levied of the lands of the tes-
tator, &c., 8

Entitled to redeem mortgaged
premises, 261

Must have notice of foreclosure,

265, 266

May apply to have dower ad-
measured, 278


Execution against, <fec., 31


Proceedings for the appointment

of a committee in the case of, . 295
Who have jurisdiction in such

cases, 295

Who are the persons contemplat-
ed by the statute, 296

Who is an idiot, 296

Who is lunatic, 296

Who a person of unsound mind, 296
What mind held to be sound by

the law, 296

Finding of a jury not necessary

to determine the fact, 297

Habitual drunkard, who is, 297

Application for a committee 298

How made and by whom, 298

Idiots, &c.— Continued. Page*

Where to be made, 299

The proceedings thereon, 299

The making and entry of the

order, 299

Persons not to deal with the party
after the issuing of the commis-
sion, 299

The return of the commission is
a judicial determination 299

Execution of the commission, . . . 299

The proceedings for that purpose, 300

Precept to the sheriff, 300

The manner of executing the
same, 300

Notice thereof, 300

Duty and power of the commis-
sioners, 301

The inquisition, 301

The finding must be in the lan-
guage of the statute, 301

The usual practice in respect

thereto, 301, 302

Petition for the appointment of

the committee 302

Notice, to whom given 302

Selection of the committee, 302

What considerations to govern

therein, 302

Wishes of lunatic to be consulted, 302
Care of married persons, how
given, 302

Reference may be ordered on ap-
pointing the committee, 302

When the appointment is contest-
ed, 303

Order of reference, how executed, 303

Practice thereunder, 303

One committee for the person and
another for the estate may be

appointed, 303

Of the effect of the finding of an

inquisition, 304

Of the allowance for support, . . . 305
What principles govern therein, . 305
Of actions by and against luna-
tics, &c., 306

After the appointment of a com-
mittee, 307

Of traversing the inquisition, . . . 308

Who may apply for leave, 308

Notice of the application, 308

The order allowing the same, .... 309



Idiots , &o — Continued. Page

Cost of such traverse, 309

Bond by the committee and sure-
ties, 309

To whom made, and the condition

thereof, 309

Power, duties, liability, compen-
sation, &c., of the committee,. 310
The estate of the committee, ... 311
What determines the authority of

the committee, 311

Committee to make and file an in-
ventory, 311

The same to be repeated annually, 311
Compensation of the committee, . 312
Proceedings to lease, mortgage or

sell, 312

Proceedings under the Revised

Statutes, 313

The application, how made, 314

The matter will be referred, .... 314

Duty of the referee, 314

Proceedings under such reference, 315
Proceedings under the act of 1864, 315

Removal of the committee, 316

For what cause, 316

The appUcation for removal, .... 316
Setting aside the inquisition, .... 317

The application, how made, 317

Suspending the inquisition, 317

Power of the court, 317

Discharging the commission, .... 317

For what causes, 318

The matters of evidence, &c., . . . 318


Special proceeding by and against, 319

The appointment of guardian, . . , 319

By whom made, 319

The power of the court in respect
thereto, 319

The mode of appointing a guar-
dian, 319

To whom this guardianship be-
longs, 320

Proceedings to appoint a general
guardian, 320

The petition, and where presented, 320

The proceeding of the court
thereon, 320

Their method of determining facts,
&c., 321

Referee may be appointed, 321

Infants — Continued. Page.

His duty and his report, 321

Not required to give notice, &c., . 321
When his report will be con-
firmed, 321

When the appointment of general

guardian becomes complete, . . 321
The security to be given, what, . 32 1
Powers and duties of the general
guardian, 322

What acts binding on their wards, 322
What void and what voidable,

322, 323
Must keep his own funds sepa-
rate, 323

Must invest within a reasonable

time, 323

Must make suitable provision, &c., 323
Must not draw from the princi-
pal, &c., 323

Must make inventory of personal

estate, 324

May be called to account at any

time, 324

Proceedings for sale, mortgage or
lease, &c., of infants' real es-
tate, 324

Jurisdiction in such cases, 324

Proceeding is by petition, 324

Appointment of special guardians

for such proceedings, 325

The petition and its requisites, . . 325

Who should join, 325

The appointment, &c., 325

The rule of the court thereon, . . 326
Provision of the statute respect-
ing same, 326

Bond and sureties in such cases, 327
Reference under the rule of court, 327
Guardian to produce certificate
of clerk, Sec, before referee to
proceed, 327

Substance of such certificate, . . . 327

Proceedings by the referee, 327 •

His report, 327

Guardians' contracts of sale to be

in writing, 327

Cannot execute same until he has
made his report, and it is ap-
proved, &c., 323

His report, how made, 328

The order of the court thereon, . 328
Dower in such cases, 328



Imfants — Continued. Page.

Fiual report of guardian, 328

Proceedings to obtain specific per-
formance, by infant lieir, of the

contract of ancestor, 329

By petition only 329

What court has jurisdiction, 330

When a specific performance will

be compelled, 330

The principle governing in such

case, 330

Court will exercise a judicial dis-
cretion in such cases, 330

By whom petition to be filed, ... 331
What the petition should set

forth, 331

The presentation and hearing of

the same, 332

Where the petition is to be pre-
sented, 332

Proceedings to compel an infant
trustee or mortgagee to con-
vey, 332

Proceeding by petition 333

By whom filed, 333

What the petition must state, . . . 333
When a guardian ad litem must

be appointed, 333

(See Habeas corpus ; Partition.)

In case of idiots, lunatics, &c., . . 301


Discha/rge thereunder, 79

What will vitiate a judgment, ... 14
What will not vitiate, Ac, 15



What they are, 73

Who is entitled to the liberties, . . 73

Bond for, and its requisites, 73

Liberties, how ascertained and

defined, 74

How published, 74, 75

Who not entitled to, 75

What constitutes a breach of the

bond, for, 76

Jael liberties — Continued. Page.

What escape from, renders the
sheriff liable 76


Of supreme court, in proceedings
supplementary to execution,

his jurisdiction, 86

The authority of, personal, . . 87, 93
Except in 1st judicial district, ... 87
In what case he has no jurisdic-
tion, 88, 93

What gives him jurisdiction, Ac, 88

County judge, when authorized to
take cognizance of these pro-
ceedings, 88


For and against one or more par-
ties, 1

When a second judgment may be
rendered, I

When the contract is on its face
joint, but in fact several, 1

When a separate judgment
against husband and wife can-
not be given, 3

When reversed, the cause will
not be dismissed when some of
the defendants are liable, .... 3

Wlien it has the substance and
scope of a decree, 4

A several judgment cannot be
pronounced against a defend-
ant only jointly liable, 5

How to be pronounced, in case
the cause of action is only
joint, 5

Against executors, 6

Must be special, 6

For equitable relief, or decree, . . 6

Jn actions for the recovery of
personal property, 8

When the plaintiff is already in
posssession, 8

When must be in the alternative, 8

For defendant must be in alter-
native, 9

When complaint is dismissed for
defect of evidence, 9

In actions for the recovery of
real property, 9

What it must contain, 10

When the rights of the plaintiff
cease during the pendency of
the action, 10



JOBOMENTS— Continued. • Page.
In actions in the nature of waste, 10
In actions in the nature of nui-
sance, 10

Against corporations, 10

Amendments of, 11

Motion to set aside judgments,

when made, 16

Who can make the motion, 16

When motion to set aside judg-
ment in case of publication of

notice to be made, 17

Satisfaction of judgment, 17

How canceled and discharged by

the clerk, 17

When satisfied by the satisfaction

of the execution, 18

When not, 18

Of a justice of the peace, when a
judgment of the county court, . 26

Appeal from, Ill

On appeal 116

Prom what an appeal lies, 118

Must be final, 118

When final 118

Must be actual and not formal

merely, 118

When it directs the sale of perish-
able property, what on appeal, 122


Sheriff's jury, to try title to pro-
perty, 47

In case of proceedings against
idiots, &c., 300



Of an execution upon personalty,
how far a satisfaction of the

judgment, 18

How far not, 18

Upon land, effect of, 18

Effect of a levy and the proceed-
ing thereunder, 42

One levy may answer for two or

more executions 42

What constitutes a levy as to

third parties, 43

What as between the parties, 43, 44
Formal levy upon land unneces-
sary, 44

U— 60

Lett — Continued. Page-

Custody of property after levy, . . 45
Latest period for making a levy, . 52


Of execution upon property, .... 40

Priority of, in case of several exe-
cutions, 52

Extinguished by sale ou senior
judgment, &c., 60

Redemption by debtor restores
the liens, 64

None created by granting an or-
der in supplementary proceed- "
ings, 94

But will relate back on the ap-
pointment of a receiver, 94

Of mechanics, general laws of, &o., 284
(See Mechanics' general lien laws.)


Proceedings in case of, &c., 295

(See Idiots, lunatics, &c.)


General observations in respect

thereto, 183

In what cases it will not be is-
sued, 183

Against whom and when it will

issue, 184

Against inferior courts, 185

What it will and what it will not

require, 185

The mandate of the writ when

directed to judicial officers, . . . 185
Will not issue to control the dis-
cretion, &c., 185

Affainst corporations, 186

In what cases it lies against them, 186
Against officers, ministerial, &c., . 187
Against supervisors of the county, 187
Against commissioners of high-
ways, 188

Against overseers of the poor, . . 188

When allowable generally, 188

For restoring an individual to an

office, 189

Against private persons and offi-
cers of corporations, 190



Makdamus — Continued. Page.

The writ aad the proceedings

thereou, 190

The appUcatioa therefor, 191

The affidavit, 191

It should not be entitled, 191

The order granting the writ, .... 193

Alternative mandamus, 193

The nature thereof, 194

What it must set forth, 194

To whom directed, 195

How served, 196

When it may be amended, 196

Motion to quash, &c., . . . , 196

Proceedings when the defendant

fails to make return, 197

The attachment in such cases, . . 197

The return of the mandamus, . . . 198

What the return should show, . . 198

What it may contain, 198

The pleadings in mandamus, 199, 200

The practice therein, <fec., . . 199, 200

Plea and demurrer, 200

Issues and findings thereon, .... 201

Finding and judgment, 202

Costs, &c., 202

Enforcement of writ, 202

Appeal, 203

Prohibition :

The nature and object of the writ,

20.3, 204

Caa be issued only by the su-
preme court, 204

To whom directed, 204

How served, 204

The notice and its service upon
the relator, 204

Judgment, &c., 205


Execution on judgment against, . 33
May confer on a mortgagee power
to sell, &c., 267

In what cases, and how the lien

is created, 284

Where the lien attaches, 285

The meaning of the word "own-
er" within the statute 285

The right to acquire a lien does
not extend to an assignee 285

Mechanics'' leen law — Continued. Page.
When the labor, &c., is furnished

on the credit of the contractor, 286

Lien, how created, 286

The notice and its requisites, .... 286
Its entry in the lien docket, .... 286

Within what time to be filed, 287

Statute must be strictly followed, 287

Continuance of the lien, 287

How it may be discharged, 287

Where and how enforced, 288

The parties thereto, 288

Proceedings in justice's court, . . , 288

Action, how commenced, 289

A bill of particulars, &c., to be

filed, 289

Notice and bill may be personally

served anywhere within the

state, 289

Or by leaving a copy, &c., when
owner cannot be found or is

not in the state, 289

Proceedings in such case, Ac, . . . 289
Proceedings where the owner
does not appear, 289

Proceedings where he does ap-
pear, 290

Action, how commenced in su-
preme court, 290

When to be brought there, 290

Notice, how to be served, 290

New party, how brought in,. . . . 291

Proceedings in case of default,. . 291
Requisites where service is by

publication, 291

The appearance of the defendant, 291

The issue, how formed, 292

Proceedings after issue, 292

Judgment, 293

Execution, 294

Costs and disbursements, 294

Appeal, 294


Who may execute with power of

sale, 259

Wlio may foreclose the same, . . . 260
Payment of, extinguishes the
power of sale, 270

Foreclosure of, by advertisement, 258



MoBTOAOE, &c. — Continued. Page.
Not a remedy in a court of jus-
tice, 258

Strictly a statutory remedy, 258

Provisions of the statute, 259

Authority to sell, &c., is a matter

of contract, 259

Who may execute such mortgage
and power, 259

The power of sale applies solely

to the remedy, 260

Such power of sale passes by as-
signment, &c., 260

Who to foreclose such mortgage, 260

Who to join in the same, 260

Necessary prerequisites to such
foreclosure, 260

Nature of the equity sought to

be foreclosed, 261

It is equal to an estate in fee, . . . 261
The holder thereof may redeem, . 261

And must be notified, 261

Notice of foreclosure, how given, 261

What each must specify, 262

Essential requisites of, 263

Length of such notice 263

Where to be pubHshed, 264

Upon whom to be served, 265

How served, 267

When service may be dispensed

with, 267

How, where service is by mailing, 267
Postponement of sale, how made, 268

The sale, &c., 268

Not a judicial sale, 269

Valid though made on Sunday, . 269
Premises consisting of distinct
farms, &c., to be sold separate-
ly, 269

Divisions made subsequent to the

mortgage not included, 269

Efifect of selling for only what is
due at the time of the sale, . . . 269

The proper mode of selling, 270

Power to sell is extinguished by

payment of the mortgage, .... 270
Surplus money arising from the

sale, how disposed of, 271

Effect of such sale, 271

Effect of a statute foreclosure

and sale, 272

Sale void as to persons in adverse
interest who are not notified,. 272

MoBTOAGE, &c. — Continued. Page.

The affidavit of sale, 273

Substitute for a deed, 273, 274

By whom taken and certified, ... 273
Must be recorded at length by

the clerk of, &c., 273

What the affidavit must state, . . . 274.

Costs in these proceedings, 275

Of appeal:
Must be given within the time

allowed, 115

May be served by mail, 116

But should be personal upon the

clerk 116

Not an original process, 116

Of foreclosure, 261

How to be given, 261

What it must specify, 262

The necessary prerequisites, there-
of, 263

Length of time to be pubUshed, . 263

Upon whom to be served, . . 264, 266

When to be published, 264

How to be served, 267



To sliow cause :

Personal representatives sum-
moned where there is judgment
against the testator or intes-
tate, who has died since its

rendition, 28

Within what time to be sum-
moned, 28

For an examination in supplement-
ary proceedings, 90, 92

Service of such order 94

The order, how applied for, 91

Disobedience thereof, how pun-
ished, 94

The examination thereunder, ... 95

The time and place thereof, 95

How enforced in these proceed-
ings, 108

From what, an appeal will lie,

111, 112



Order — Conti nued Page.
From wliat, no appeal will lie, . . 113
Stay on appeal from, how ob-
tained, 122

(See Mandamus.)


la what case partition may be
had, 353

Proceedings are to be by action, . 353
Proceedings by petition not ad-
visable, 353

What courts have jurisdiction, . . 354
Plaintiff in petition to be of full

age, 354

What must be the plaintiff's title, 354
In respect to what estate, . . 354, 355
Possession may be actual or con-
structive, 355

Commencement of the action, . . . 355

Parties thereto, 355

In case of an infant, what pro-
ceedings, 355, 356

The petition of the infant appli-
cant, 356

The proceedings thereon, 356

Where parties interested are un-
known, 357

Where lands are held by the
state and an individual as ten-
ant in common, 351

Idiots, &c., to be made parties, . . 357
Judgment creditors and mortga-
gees, 358

The action, how commenced, .... 358

The pleadings therein, 358

Appointment of guardian ad litem

for infant defendants, 358

Where the infant resides out of

the state, 359

Within what time to apply for
appointment of guardian ad

litem, 359

Plaintifif must wait after serving

summons, 359

Notice to be given where the in-
fant is under fourteen, 360

The length of such notice, 360

The appointment of special guar-
dian, how made, 361

What the petition should specify, 361

Partition — ■ Continued. Page.
The order appointing such guar-
dian, 361

What it must specify 361

The act of 1852 in this respect,. 362

Its application, 362

The answer and other pleadings, 363
Any party appearing may plead

separately, 363

Default of defendant, 364

When a part answer only, how, . 364

Where none appear, 364

What necessary to entitle plain-
tiff to judgment, 364

Reference, when ordered, 3&5

What it directs, 365

When premises cannot be di-
vided 365

What must be found and re-
turned, 365, 366

Proceedings upon reference, how

governed, 366

Report of referee, what to con-
tain 366, 367

The hearing thereupon, 367

Judgment or order for partition, . 367
Appointment of commissioner to

execute, &c., 369

Their powers and duties, 369

Prerequisites to the execution of

their office, 370

Proceedings in the discharge of

their duties, 370

Must notify all parties interested, 370
Where there is an estate in

dower, or by the courtesy, ... 371
Limit of the powers of the com-
mission, 371

They are to execute the judg-
ment of the court upon the

premises, 371

They have authority to examine

witnesses, 372

How they must perform their du-
ties, 372

What their report must show, . . 372
Effect of setting aside their re-
port, 373

Final judgment upon actual par-
tition, 373

Who bound thereby, 373

Effect of the act of 1847, 374

What this judgment should spe-
cify, 374



Partition — Continaed. Page.

Report that the land cannot be

partitioned 375

When such report to be made, . . 375

Order of the court thereon, 375

Proceedings in respect there-
to 375, 376

Further parties may then be
made, 376

Further reference to be had, .... 376

Notice to be published, 376

Order of sale and proceedings, . . 377

Where there are incumbrances
upon tlie estate affecting any

of the parties 377

Proeeedings in respect to the

same, 377

The application to the court, .... 377

What must accompany it, 377

What notice to be given, 377

Hearing of the application, 377

Order thereupon, 377

Canceling of such incumbrance, . 377

Order of sale by the commission-
ers, 387

What it should embrace, 378

Proceedings of the commissioners

under such order, 378

Notice of sale to be given, 378

Sale, how conducted, 378

Report of sale, 379

Conveyance of the premises, .... 379

Effect of such conveyance, 379

Costs to be deducted, 379

Disposition of the proceeds, 380

Where any of the known parties

are infants, 380

When absent or unknown, 380

Where proceeds belong to tenant

in dower, &c., 380

Investment to be made, 380

In what securities, 380

In whose name security to be
taken, 380

When conveyances to be exe-

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