the defendant from the jail, and bring him before the court. See note to last section, § 3180. Id.; bail or deposit before return. - The defendant may give bail, by delivering to the sheriff a written undertaking to the plaintiff, in the sum speci fied 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. See note to 3178, ante. 3181. The same.— Where bail is given, as prescribed in the last section, the officer taking the acknowledgment of the 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 expira tion 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 3164 of this act. See note to 3178, ante. § 3182. Id.; bail or deposit after return. At any time after the return of the sheriff, and before 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. See note to 3178, ante. 3183. Id.; when and how defendant to remain in custody. 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 ac cordingly. See note to 3178, ante. 3184. Id.; return of summons, etc.-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 forth with, unless the court is not 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. See note to 2 3178, ante. 3185 Id.; proceedings after return.- 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. Assoon 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 written; 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. See note to 3178, ante. § 3186. Id.; trial. 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 generally 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 terin, as the court at chambers appoints, be given; and thereupon final judgment 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. Lee note to 3178, ante. § 3187. Ordinary action may be brought for like cause. 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 317 of this act. See note to 8 3178, ante. ARTICLE FOURTH. APPEALS TO AND FROM THE GENERAL TERM OF THR COURT. SEC. 3188. Appeal to general term, from a judgment. 3189. Id.; from an order. 3190. Time to appeal from order; proceedings thereupon. 3191. Appeal from genera term to supreme court; in what cases. SEC. 3192. Id.; proceedings regulated. 3193. Id.; within what time; where heard. Id.; § 3188. [Amended, 1895.] Appeal to general term, from a judgment.—An appeal, to the general term of the court, may be taken from a final judgment rendered therein, in a case where an appeal may be taken to the appellate division of the supreme court, from a final judgment rendered therein, as prescribed in section 1346 of this act. In effect Jan. 1, 1896; L. 1895, ch. 946. L. 1853, ch. 617, § 5; L. 1872, ch. 629, §§ 9 and 11. 3189. [Amended, 1895.] Id.; from an order.An appeal, to the general term of the court, may also be taken from an interlocutory judgment rendered, or an order made, at a special term or a trial term thereof, or an order made by a judge thereof, out of court, in a case, where an appeal may be taken to the appellate division of the supreme court, from an interlocutory judgment rendered, or an order made, in like manner, as prescribed in sections 1347, 1348, and 1349 of this act. In effect Jan. 1, 1896; L. 1895, ch. 946. L. 1972, ch. 629, §§ 9 and 10. Leland v. Smith, 3 Daly, 309. § 3190. Time to appeal from order; proceedings thereupon.-An appeal, authorized by the last section, must be taken within ten days after service of a copy of the 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. See note to last section. 3191. [Amended, 1895.] Appeal from general term to supreme court; in what cases.-An appeal may be taken to the supreme court, from an actual determination, made by the city 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 ar 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. Such appeals shall be heard in such manner and by such justice or justices as the appellate aivision of the supreme court in the first department shall direct. In effect Jan. 1, 1896; L. 1895, ch. 946. Code of Proc. 352, L. 1874, ch. 545, 9. Hoffenberth v. Muller, 12 Abb. N. S. 221; Mc Eteere . Little, 7 Abb. N. C. 374; McMahon v. Rauhr, 47 N. Y. 67; Whitlock v. Joseph, 14 Abb. 342; Howe . Julien, 2 Hilt. 453: Mitchell v. Westchester Fire Ins. Co., 6 Daly, 452; Hone v. Julien, 9 Abb. 193; Man. and Build. Bank v. Kiersted, 6 Daly, 160; McIntyre v. Hernandez, 7 Abb. N. S. 214; Bamberg v. Stern, 76 N. Y. 555; Harper v. Hall, I Daly, 498; Farrington v. O'Conner, 6 d 209; Gordon v. Hartman, 9 Week. Dig. 293; Merceron v. Fowler, 9 Reporter, 257; Farley v. Lyddy, id. 257; Lesser v. Wander, id. 416; Raymond v. Belcher, 1 Law. Bull. 62: Badgley v. Brown, 3 E. D. S. 66; McCunn v. Burnett, 2 id. 521; Martin 2. Mayor, 20 How. 86; Brown v. Jones, 1 Hilt. 204; Michell v. Menkle, id. 142; Smith v. American Inst., 7 Daly, 526; Gordon v. Hartman, Week. Dig. 293. 3192. Id.; proceedings regulated. - Titles first and third of chapter twelfth of this act apply to and govern an appeal, taken as prescribed in the last sec tion, except as otherwise expressly prescribed in the next two sections. See L. 1874, ch. 545, 29. Smith v. American Institute, etc., 7 Daly, 526. § 3193. [Amended, 1895.] Id.; within what time; where heard.-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 a written notice of the entry thereof. In effect Jan. 1, 1896; L. 1895, ch. 946. § 3194. Id.; determination upon appeal, how enforced. Id.; where new trial was properly granted. 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. See note to 3192, ante. § 3195. [Repealed Jan. 1, 1896; L. 1895, ch. 946.] *So in original. |