rendered and enforced, in a court of record, or not of record, as if she was single.

Substitute for Co. Proc., part of 274. Hier v. Staples, 51 N. Y. 136: Vosburg v. Brown, 66 Barb. 421; Andrews v. Montlaws, 8 Hun, 65. See Ainsley v. Mead, 3 Lans. 116; Morris v. Wheeler, 45 N. Y. 708; Baldwin . Kimmel, 16 Abb. 353; and 1 Rob. 109; Corn Exchange Ins. Co. v. Babcock, 42 N. Y. 593.

§ 1207. When judgment for plaintiff not to exceed judgment demanded. Where there is no answer, the judgment shall not be more favorable to the plaintiff, than that demanded in the complaint. (1) Where there is an answer, the court may permit the plaintiff to take any judgment, consistent with the case made by the complaint, and embraced within the issue.(2)

Co. Proc., 275. (1) Andrews v. Montlaws, 8 Hun, 65; Simonson v. Blake, 12 Abb. 331; 20 How. 484. (2) Marquat v. Marquat, 12 N. Y. 341; Kelly . Downing, 42 id. 71; Emery v. Pease, 20 td. 62; Jones v. Butler, 20 How. 189; Smith v. Howard, id. 151; Cowenhoven v. City of Brook lyu, 38 Barb. 9; Hartt v. Harvey, 21 How. 382; Bradley v. Aldrich, 40 N. Y. 510; Armitage v. Pulver, 37 id. 494; 5 Trans. App. 188; Mann v. Fairchild, 2 Keyes, 106; Rome, etc., Bank v. Eames, 1 id. 588; Heywood v. City of Buffalo, 14 N. Y. 540; Weatherby v. Wood, 29 How. 404; Beach . Cooke, 28 N. Y. 508; N. Y. Ice Co. v. N. W. Ins. Co., 23 id. 357; Bldwell v. Astor Mut. Ins. Co., 16 id. 263; Barlow v. Scott, 24 d. 40; Greason v. Keteltas, 17 id. 491; Durand . Hankerson, 39 id. 287; Wright v. Hooker, 10 id. 51; Scott v. Pilkington, 15 Abb. 280: Gordon v. Hostetter, 4 Abb. N. S. 263; Colton v. Jones, 7 Rob. 164; Eldridge v. Adams, 54 Barb. 417; Byxble v. Wood, 24 N. Y. 607; Balley v. Ryder, 10 id. 363; Baltus v. Genin, 3 Bosw. 250; Redmond v. Dana, id. 615; Boardınan v. Davidson, 7 Abb. N. S. 439; Mills v. Van Voorhes, 10 Abb. 160; Salter . Ham, 31 N. Y. 321; Beecher v. Ackerman, 1 Abb. N. S. 141; Simmons . Eldridge, 29 How. 309; Towle v. Jones, 19 Abb. 449; Hotop v. Neidig. 17 Id. 332; Wood v. Brown, 34 N. Y. 337.

§ 1208. Rate of damages. Where either party is entitled to recover damages, he may recover any rate of damages, which he might have heretofore recovered, for the same cause of action.

Id., 276, am'd.

$1209. [Amended, 1877.] Effect of judgment dismissing the complaint.-- A final judgment, dismissing the complaint, either before or after a trial, rendered in an action hereafter commenced, does not prevent a new action for the same cause of action, unless it expressly declares, or it appears by the judgment-roll, that it is rendered upon the merits.

New. Bee Wheeler v. Buckman, 51 N. Y. 391; Freem. on Judg., I

981.

§ 1210. Judgment against a dead person. Where a judgment for a sum of money, or directing the pay.

ment of money, is entered against a party, after his death, in a case where it may be so taken, by special provision of law, a memorandum of the party's death must be entered, with the judgment, in the judgmentbook, indorsed on the judgment-roll, and noted on the margin of the docket of the judgment. Such a judg ment does not become a lien upon the real property, or chattels real, of the decedent; but it establishes a debt, to be paid in the course of administration.

2 R. S. 359, 17(2 Edm. 372), with amendments. Nichols v. Chapman, Wend. 455; Livingston v. Rendall, 59 Barb. 493; Stymets v. Brooka, 10 Wend. 206

§ 1211. Judgment to bear interest. A judgment for a sum of money, rendered in a court of record, or not of record, or a judgment rendered in a court of record, directing the payment of money, bears interest from the time when it is entered.(1) But where a judgment directs that money paid out shall be refunded or repaid, the direction includes interest from the time when the money was paid, unless the contrary is expressed.

From L. 1844, ch. 324, 1 (4 Edm. 628), as am'd by L. 1869, ch. 807, 1 (7 Edm. 477). (1) De La Vergne v. Evertson, 1 Pai. 181; Stafford Mott, 31d. 100; Ryckman v. Parkins, 5 id. 543; Mower v. Kip, 6 ld. 88 s. o., 2 Edw. 165; Mason v. Sudam, 2 Johns. Ch. 172; Watson . Fuller, id. 283; Mann v. N. Y. C. R. R. Co., 12 Abb. N. S. 380.

ARTICLE SECOND.

MODE OF TAKING, ENTERING, AND ENFORCING A JUDG

MENT.

Bac. 1212. Judgment by default, in certain actions on contract; how taken.

1213. Amount of judgment in such cases; how determined.

1214. Application to court for judgment by default; when necessary. 1215. Proceedings on such an application.

1216. Application for judgment, in case of service by publication,

etc.

1217. Attachment and undertaking for restitution, required in certain actions.

1218. When judgment cannot be taken against infant.

1219. When a defendant in default is entitled to notice.

1220. When action may be severed, if issues of law and .ssues of fact presented.

1221. Judgment how taken, after trial of issues of law and issues of fact, in the same action.

1222. Id.; after trial of issue of law only.

1223. Proceedings upon application under the last two sections. 1224. Id.; upon interlocutory judgment, etc., affirmed at a term of the appellate division of the supreme court. 1225. Judgment, after trial by jury of specific questions of fact. 1226. Id.; after reference to determine specific questions of fact.

1227. Id.; upon motion for a new trial, heard by the appellate division of the supreme court.

1228. Id.; upon trial by court or referee of the whole issue of fact.

Sao. 1229 In matrimonial causes, judgment can be rendered only by the

court.

1230. Final judgment upon decision or report awarding interlocu

tory judgment, etc.

1231. Id.; how final judgment entered and settled in certain cases. 1232. Interlocutory reference or inquisition; how reviewed.

1233. Motion for judgment upon a special verdict, etc.

1234. Id., upon verdict subject to opinion of court.

1235. Interest on verdict, etc., to be included in recovery.

1236. Clerk to keep judgment-book; judgment to be entered therein, 1237. Judgment-roll to be filed; of what it consists.

1238. Id.; by whom prepared.

1239. Time of tiling judgment-roll to be noted.

1240. When a judgment may be enforced by execution.

1241. When a judgment may be enforced by punishment for diso

beying it.

1242. Beai property; how sold

Effect of conveyance.

1243. Security upon sale by referee.

1244. Conveyance to state name of party.

§ 1212. [Amended, 1879.] Judgment by default in certain actions on contract; how taken. In an action specified in section four hundred and twenty of this act, where the summons was personally served upon the defendant, and the copy of the complaint, or a notice stating the sum of money for which judgment will be taken, was served with the summons, or where the defendant has appeared, but has made default in pleading, the plaintiff may take judgment by default, as follows:

1. If the defendant has made default in appearing, the plaintiff must file proof of the service of the summons, and of a copy of the complaint or the notice; and also proof, by affidavit, that the defendant has not appeared. Whereupon the clerk must enter final judgment in his favor.

2. If the defendant had seasonably appeared, but has made default in pleading,(1) the plaintiff must file proof of the service of the summons and of the appearance or of the appearance only; and also proof, by affidavit, of the default.(2) Whereupon, the clerk must enter final judgment in his favor.

If the defendant has made default in appearing or pleading, and the case is not one where the clerk can enter final judgment, as prescribed in either of the foregoing subdivisions of this section, the plaintiff must apply to the court for judgment, as prescribed in section twelve hundred and fourteen of this act.

Substituted for Co. Proc., ? 246, part of subd. 1. (1) Broadhead w Broadhead, 4 How. 308; King v. Stafford, 5 id. 30; Saltus v. Kip, 12 id. 342; 5 Duer, 646; 2 Abb. 332: Huffnung v. Grove, 18 id. 14, 142. (2) Philips v. Prescott, 9 How. 430; Brian v. Casey, 2 Abb. 416; Catlin v. Bil

lings, 4 id. 248; s. c., 13 How. 511; Sluyter v. Smith, 2 Bosw. 673; Ford v. David, id. 570; Jones v. U. S. Slate Co., 16 How. 129; Catlin v. Billings, 16 N. Y. 622; Macomber v. Mayor of N. Y., 17 Abb. 36; Bierce. Smith, 2 id. 411; Hunter v. Lester, 10 id. 260; Collins v. Ryan, 32 Barb. 647; Ross v. Lougmuir, 15 Abb. 326; Griswold v. Stoughton, 1 Cal. 6; Hallett v. Righters, 13 How. 43.

§ 1213. Amount of judgment in such cases; how de termined. Where final judgment may be entered by the clerk, as prescribed in the last section, the amount thereof must be determined as follows:

1. If the complaint is verified, the judgment must be entered for the sum, for which the complaint demands judgment; or, at the plaintiff's option, for a smaller sum; and if a computation of interest is necessary, it may be made by the clerk.

2. If the complaint is not verified, the clerk must as sess the amount due to the plaintiff, by computing the sum due upon an instrument for the payment of money only, the non-payment of which constitutes a cause of action, stated in the complaint; and by ascertaining, by the examination of the plaintiff, upon oath, or by other competent proof, the amount due to him for any other cause of action stated in the complaint. If an instrument, specified in this subdivision, has been lost, so that it cannot be produced to the clerk, he must take proof of its loss and of its contents. Either party may require the clerk to reduce to writing and file the assess ment, and the oral proof, if any, taken thereupon.

Substitute for Co. Proc., 246. part of subd. 1. Hurd v. Leavenworth, 1 Code R. N. S. 279, Amer. Exch. Bank v. Smith, 6 Abb. 1; Van Horne . Montgomery, 5 How. 238.

§ 1214. [Amended, 1877.] Application to court for judgment by default; when necessary. - Where the summons was personally served upon the defendant, within the State, and he has made default in appearing, or where the defendant has appeared, but has made default in pleading; and the case is not one, where the clerk can enter final judg ment, as prescribed in the last two sections, the plaintiff must apply to the court for judgment. Upon the application he must file, if the default was in appearing, proof of service of the summons; or, if the default was in pleading, proof of appearance, and also if a copy of the complaint was demanded, proof of service thereof, upon the defendant's attorney; and, in

either case, proof, by affidavit, of the default which en titles him to judgment.

Substituted for the first sentence of Co. Proc., 216, subd. 2.

$1215. [Amended, 1877.] Proceedings on such an application. The court must thereupon render the judgment, to which the plaintiff is entitled. It may, without a jury, or with a jury if one is present in court, make a computation or assessment, or take an account, or proof of a fact, for the purpose of enabling it to render the judgment, or to carry it into effect; or it may, in its discretion, direct a reference, or a writ of inquiry, for either purpose ;(1) except that where the action is brought to recover damages for a personal injury.(2) or an injury to property, the damages must be ascertained by means of a writ of inquiry. Where a reference or a writ of inquiry is directed, the court may direct, that the report or inquisition be returned to the court for its further* action; or it may, in its discretion, except where special provision is otherwise made by law, omit that direction; in which case, final judgment may be entered by the clerk, in accordance with the report of the referee, or for the damages ascertained by the inquisition, without any further application.

Co. Proc. 246, second and third sentences of subd. 2, am'd. (1) Amer. Exch. Bank v. Smith, 6 Abb. 1; Brush v. Mullany, 12 id. 344; Croden v. Drew, 3 Duer, 652; Hewitt v. Howell, 8 How. 348; Porter v. Lent, a Abb. 115; 4 Duer, 671; Horn v. Doody, id. 92; id. 670; Guilhon v. Lindo, 9 Bosw. 605; Saltus v. Kipp, 2 Abb. 383; 42 How. 342; Warner v. Kenney, 3 1d. 323; Lane v. Gilbert, 9 id. 150; Gilbert v. Rounds, 14 id. 47; Ford v. David, 1 Bosw. 570; Jennings v. Asten, 5 Duer, 695; 3 Abb. 373 (2) Rickards v. Swetzer, 3 How. 413; Dutch Reformed Church v. Wood, 8 Bart 421; Stanley v. Anderson, id. 52; Saltus v. Kipp, 2 Abb. 382; & Duer, 646; 12 How. 342; Dillayev. Hart, 8 Abb. 394: Hays v. Berryman 6 Bosw. 679; Casneau v. Bryant, 6 Duer, 668; 4 Abb. 402; George v. Fisk, 8 Rob. 710.

--

§ 1216. [Amended, 1895.] Application for judg ment. in case of service by publication, etc. Where the summons was served upon the defendant without the State, or otherwise than personally, if the defendant does not demand a copy of the complaint, or plead, as the case requires, within twenty days after the service is complete, the plaintiff may apply to the court for the judgment demanded in the complaint. Upon such an application, he must file proof that the service is complete, and proof, by affidavit, of the defendant's