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presentation of the submission; and thenceforth tho controversy becomes an action ; and each provision of law, relating to a proceeding in an action, applies to tho subsequent proceedings therein except as otherwise prescribed in the next section.

(1) New. Beinander 1s substituted for Co. Proc., 371, and part # 372 and 373.

S 1281. [Amended, 1995.] Subsequent proceedings regulated.- An order of arrest, an injunction, or a warrant of attachment, cannot be granted in such an action; the costs thereof are always in the discretion of the court, but costs cannot be taxed, for any proceedings before notice of trial; the action must be tried by the court, upon the case alone; and the case, submission, affidavit, and a certified copy of the judgment, and of any order or paper, necessarily affecting the judgment, constitute the judgment-roll. If the action is in the supreme court it must be tried and judgment rendered by the appellate division thereof, and if in the city court of the city of New-York, it must be tried, and judgment rendered, at the general term thereof. If the statement of facts, contained in the case, is not sufficient to enable the court to render judgment, an order must be made dismissing the submission, without costs to either party; unless the court permits the parties, or, in a proper case, their representatives, to file an additional statement, which it may do, in its discretion, without prejudice to the original statement. In effect Jan. 1, 1896; L. 1895, ch. 946.

TITLE III.

Vacating or setting aside a judgment, for irregularity or

error in fact. huo. 1282. Motion to set aside judgment for Irregularity; when it may

be heard. 1283. Motion to set aside Judgment for error iu fact; whon it may

be made by party.
124. Id.; after a party's death
1285. Id. by a person pot a party.
1386. Id.; when several parties are entitled to move
1287. To whom notice of the motion must be given.
1988. Id.; when real property recovered by the judgmoet het bede

conveyed.
1930. How notice given under this title.

SBO. 1290. Within what time motion to be made.

1291. Exceptions in cases of disability.

1292. Restitution; when directed. $ 1282. Motion to set aside judgment for irrega. larity; when it may be heard. - A motion to set asido a final judgment, for irregularity, shall not be heard, after the expiration of one year since the filing of the judgment-roll; unless notice thereof is given for a day within the year, and either the hearing is adjourned, by one or more orders, until after the expiration of the year; or the term, for which it is thus noticed, is not held. In the latter event, the motion may be re-noticed for, and heard at, the next term at which it can be made, held not less than ten days after the day, when the first term was appointed to be held.

2 R. 8. 359, 2 (2 Edm. 371), remodelled. Cooko. Dickerson, 1 Duer, 579;

Whitehead v. Pecare, 9 How. 35; Pettigrew v. Mayor of N. Y., 17 id. 496; Park v. Church, 5 id. 381; Dederick's Adm’rs v. Richley, 19 Wend. 108; Manufacturers and Mechanics' Bank v. Boyd, 3 Den, 257; Halletto. Righters, 13 How. 43; Chappel v. Chappel, 12 N. Y. 216 ; Bon. Dell v. Henry, 13 How. 142; Harris v. Warren, i id. 139; Lucas v. Second Baptist Church, 4 id. 353.

$ 1283. Motion to set aside judgment for error in fact; when it may be made by party. - A motion to set aside a final judgment, rendered in a court of record, for error in fact, not arising upon the trial, may be made by the party against whom it is rendered ; or, if an ex. ecution has not been issued thereon, and the judgment bas not been wholly or partly satisfied or enforced, by the party in whose favor it is rendered.

2 R. S. 591, parts of & 2 and 3 (2 Edm. 613), consolidated and am'd. Overseers of the Poor of Clayton o. Beedle, 1 Barb. ll; Jaqueth o. Jack. von, 17 Wend. 434. See McMurray v. McMurray, 9 Abb. N. S. 315.

§ 1284. Id.; after a party's death. A like motion may be made, after the death of a party entitled to make it, as prescribed in the last section, by the following persons :

1. Where the judgment awards a sum of money, or a chattel, or an interest in real property, which is do clared by law to be assets, the motion may be made by his executor or administrator.

2. Where the judgment awards real property, or tho possession thereof, or where the title to or an estate or interest in real property is determined or affected thereby, the motion may be made by the heir of the de rodont, to whom the real property descended, or might

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have descended, or by the person to whom he devised it.

3. Where the judgment is rendered against or in fa vor of two or more persons, the motion may be made, jointly, by the survivor, and the person who would have been entitled to make it, if the judgment had been resdered in favor of or against the decedent only.

2.R. S. 591, 82, subd, 2 and 3, and & 6, consolidatei, Overseen of the Poor of Clayton v. Beedle, 1 Barb. ll.

$ 1285. Id, ; by a person not a party. - A motion may be made, either before or after the death of tho defendant, by a person, who is not a party, to set asido for error in fact, not arising upon the trial, a judgment, rendered in an action against a tenant for life, or for years, awarding real property, or the possession of rea] property, in which the person making the motion has an estate, or interest, in reversion or remainder. Id., 82, subd. 4, remodelled.

$ 1286. Id.; when several parties are entitled to move. - - Where two or more persons are entitled to move to set aside a judgment, as prescribed in the last three sections, one or more of them may move sep& rately; but, in that case, notice of the motion must be given to those who do not join therein, in like manner as if they were adverse parties. Substitute for 2 R. S. 592, 387-17. Fenner v. Bettner, 22 Wend. 521.

$ 1287. To whom notice of the motion must be given. — Notice of a motion to set aside a final judg. ment, for error in fact, not arising upon the trial, inust be given to the adverse party, or, in case of his death, to each person who might have moved, as against the moving party, to set aside the judgment for the same cause, as prescribed in this title.(1) Where the motion is made by the party against whom the judgment is rendered, or by his leir, devisee, executor, or adminis trator, service of the notice, upon the attorney of record for the party, in whose favor the judgment is rendered, bug the like etfect, as if it was served upon the party.(2)

(1) Id., the substance of $ 19, except the last clause of subd. 3 theroot (2) New

§ 1288. Id. ; when real property recovered by the judgment has been conveyed. - Where the judgment awardø real property, or the possoasion thereof,

where the title to, or an estate or interest in, real prop erty is determined or affected thereby, and the real property, or estate or interest therein, has been conveyed, by the adverse party, more than eight days be fore the hearing of the motion, notice of the motion must also be given to each actual occupant of the property, claiming under the conveyance. 2B S. 592, remainder of 8 19.

$ 1289. How notice given under this title. — Notice must be given, in a case specitied in this title, by personal service of a written notice, or of an order to show cause why the motion should not be granted; or, if a person entitled to notice cannot, with due diligence, be found within the State, in any manner which the court, or a judge thereof, directs in an order to show cause, or which the court directs in a subsequent order.

New

$ 1290. Within what time motion to be made. - A motion to set aside a final judgment, for error in fact, not arising upon the trial, shall not be heard, except as specified in the next section, after the expiration of two years since the filing of the judgment-roll, unless notice thereof is given, for a day within the two years ; and either the hearing is adjourned, by one or more orders, until after the expiration of the two years; or the term, for which it is thus noticed, is not held. In the lattor event, the motion may be re-noticed for, and heard at, the next term at which it can be made, held not lesa than ten days after the day, when the first term was appointed to be held. New. See McMurray v. McMurray, 9 Abb. N. 8. 315.

$ 1291. Exceptions in cases of disability. -- If the person, against whom the judgment is rendered, is, at the time of filing the judgment-roll, either

1. Within the age of twenty-one years; or 2. Insane; or

3. Imprisoned on a criminal charge, or in execution, apon conviction of a criminal offence, for & term lesa than for life ;

The time of such a disability is not a part of the time, limited by the last section ; except that the time, within which the motion may be heard, cannot be extended

more than five years by such a disability, nor, in any case, more than one year after the disability ceases. Tom 7 R. 8. 594, & 22 and 24,

$ 1292. Restitution; when directed. Whero a judg. ment is set aside for any cause, apon motion, the court may direct and enforce restitution, in like manner, with like effect, and subject to the same conditions, us wher . judgment le reversed upon appeal. la ta form. Soo { 1323, porta

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