§ 3324. Id.; affidavit upon claim for travel fees.

A constable, who charges any traveling fees, must show, by affidavit, that the travel was necessary to perform the service with respect to which it is charged; that no more miles are charged for, than were actually and in good faith traveled for that purpose: that he had at the time no other official or private business upon the route so traveled; and that the traveling fees are charged upon one mandate only, which must be attached to or described in the affidavit. The justice taxing the fees must be satisfied that the miles charged for were actually and necessarily traveled as stated in the affidavit.

From ch. 820 of 1869, § 2 (7 Edm. 480),

§ 3325. Justice's court, fees upon a commission.

A party recovering costs in an action before a justice of the peace, in whose behalf a commission has been issued, and who introduces in evidence a deposition taken thereunder, is entitled to recover his actual disbursements thereupon, not exceeding the following sums: commissioner's fees for taking and returning testimony, one dollar; each subpœna issued, or oath administered, by the commissioner, six cents; expense for serving subpoena, twenty-five cents; each witness's fees for each day's attendance before the commissioner, twenty-five cents; postage for sending and returning the commission and papers annexed thereto, one dollar.

From ch. 138 of 1841, § 3 (4 Edm. 546).

§ 3326. Id.; jurors' fees.

Except as otherwise specially prescribed by law, a person. notified to attend as a juror, is entitled to twenty-five cents, for attending and serving, upon the trial of an action or the hearing of a special proceeding, before a justice of the peace; and to ten cents for attending to serve, where he is not sworn.

From 2 R. S. 265, § 228 (2 Edm. 273); ch. 692 of 1866, § 9 (6 Edm. 806).

§ 3327. Id.; witnesses' fees.

A witness is entitled to twenty-five cents, for each day's actual attendance, before a justice of the peace, in an action or a special proceeding, or before a commissioner appointed by a justice of the peace, or before a justice of the peace taking a deposition to be used in a court, not of record, of another State, or a territory of the United States.

From Id., part of § 228, ch. 692 of 1866, § 10.

§ 3328. Id.; fees to be paid before services rendered. A justice of the peace or a constable, juror or witness before a justice of the peace, is not obliged to render any service specified in this title, without the previous payment or tender of his fee therefor.

From 2 R. S. 650, § 6 (2 Edm. 670).

§ 3329. Id.; by whom fees to be paid.

In an action before a justice of the peace, if any services are rendered for a party, and he neglects to pay the fees allowed therefor by law, the other party may pay those fees, and the amount thereof must be taxed as part of his costs, if he recovers costs.

title.

3330. Certain special provisions excepted from this

The allowance of a fee, by this title, does not apply to a case, where special provision is otherwise made by statute for compensation for a particular service.

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§ 3331. Provision as to change in fees.

Where an officer has, when his title takes effect, commenced the performance of a service, for which a fee is allowed by the statutes heretofore in force, he is entitled to the fee so allowed, for the completion of that service, and he is not entitled to the fee for the same, or a corresponding service, allowed by this title.

§ 3332. This title applies to civil cases only.

Except as otherwise expressly prescribed therein, this title does not apply to a service rendered in a criminal action or special proceeding, in a court, or before an officer.

CHAPTER XXII

Definitions and Regulations Concerning the Construction,
Effect, and Application of this Act.

TITLE I-General definitions, and rules of construction.
TITLE II.—Provisions regulating the effect and application of this

act.

TITLE I.

General definitions, and rules of construction.

SEC. 3333. Definition of "action."

3334. Id.; "special proceeding."

3335. Division of actions into civil and criminal.

3336. Definition of "criminal action."

3337. Id.; "civil action."

3338. Parties to a civil action.

3339. Only one form of civil action.

3340. Rule of construction as to publication, etc., in certain cases.

3341. Id.; as to certain special provisions relating to New York city.
3342. Id.; as to county court.

3343. Miscellaneous general definitions and rules of construction.

§ 3333. Definition of "action."

The word "action." as used in the New Revision of the Statutes, when applied to judicial proceedings, signifies an ordinary prosecution, in a court of justice, by a party against another party, for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence.

From Co. Proc. § 2.

§ 3334. Id.; "special proceeding."

Every other prosecution by a party, for either of the purposes specified in the last section, is a special proceeding.

From Co. Proc. § 3.

§ 3335. Division of actions into civil and criminal. Actions are of two kinds:

1. Civil.

2. Criminal.

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From Co. Proc. § 4.

§ 3336. Definition of "criminal action."

A criminal action is prosecuted by the people of the State, as a party, against a person charged with a public offence, for the punishment thereof.

From Co. Proc. § 5.

§ 3337. Id.; "civil action.”

Every other action is a civil action.

From Co. Proc. § 6.

§ 3338. Parties to a civil action.

The party prosecuting a civil action is styled the plaintiff; the adverse party is styled the defendant.

From Co. Proc. § 70.

§ 3339. Only one form of civil action.

There is only one form of civil action. The distinction between actions at law and suits in equity, and the forms of those actions and suits, have been abolished.

From Co. Proc. § 69.

§ 3340. Rule or construction as to publication, etc., in certain cases.

Each provision of this act, requiring the publication of a summons, notice, or other paper, in one or more newspapers, or authorizing or requiring a court, or a judge, to designate one or more newspapers, in which such a publication must be made, or requiring the posting of a notice or other paper, is to be construed as not affecting any special provision of the statutes, remaining unrepealed after the former provision takes effect, prescribing one or more particular newspapers, in which such a publication must or may be made, or one or more particular places, in which notices or other legal papers must or may be posted, in a particular locality, or in a particular case.

From ch. 449 of 1876, § 9.

§ 3341. Id.; as to certain special provisions relating to New York city.

Each provision of this act is to be construed as not affecting any special provision of the statutes, remaining unrepealed after the former provision takes effect, which is applicable exclusively to an action against the mayor, aldermen, and commonalty of the city of New York, including the recovery, entry, and collection of a judgment in such an action.

From ch. 449 of 1876, § 10; and ch. 646 of 1865, §§ 4 and 5: ch. 876 of 1866, 10: ch. 586 of 1867, § 6; ch. 853 of 1868, § 8; ch. 876 of 1869, § 14; ch. 382 of 1870, § 2; ch. 583 of 1871, § 5, and ch. 514 of 1872, § 1.

§ 3342. Id.; as to county court.

Each provision of this act. conferring power upon, or authorizing a proceeding to be taken at, a general, special, or trial term, which is applicable to a county court, is to be construed as applying to any term of the county court, held pursuant to an appointment made as prescribed by law.

From ch. 449 of 1876, § 10.

\ § 3343. Miscellaneous general definitions and rules of construction.

In construing this act, the following rules must be observed, except where a contrary intent is expressly declared in the provision to be construed, or plainly apparent from the context thereof:

1. [Repealed by ch. 946 of 1895.]

2. The word. mandate. includes a writ, process, or other written direction, issued pursuant to law, out of a court, or made pursuant to

law, by a court, or a judge, or a person acting as a judicial officer, and commanding a court, board, or other body, or an officer, or other person, named or otherwise designated therein, to do, or to refrain from doing, an act therein specified.

3. The word," judge," includes a justice, surrogate, recorder, justice of the peace, or other judicial officer, authorized or required to act, or prohibited from acting, in or with respect to the matter or thing, referred to in the provision wherein that word is used.

4. The word, "clerk." signifies the clerk of the court wherein the action or special proceeding is brought, or wherein, or by whose authority, the act is to be done, wihch is referred to in the provision in which it is used. If the action or special proceeding is brought, or the act is to be done, in or by the authority of the supreme court, it signifies the clerk of the county wherein the action or special proceeding is triable, or the act is to be done.

5. The word, report." when used in connection with a trial, or other inquiry, or a judgment, means a referee's report; and the word, "decision," when used in the same connection, means the decision of the court upon a hearing, or the trial of an issue, before the court, without a jury.

6. [Repealed by ch. 677 of 1892.] 7. [Repealed by ch. 677 of 1892.]

8. [Repealed by ch. 677 of 1892.]

9. A personal injury" includes libel, slander, criminal conversation, seduction, and malicious prosecution; also an assault, battery, false imprisonment, or other actionable injury to the person either of the plaintiff, or of another.

10. An injury to property" is an actionable act, whereby the estate of another is lessened, other than a personal injury, or the breach of a

contract.

11. The word "affidavit," includes a verified pleading in an action, or a verified petition or answer in a special proceeding.

12. A warrant of attachment against property is said to be "annulled," when the action, in which it was granted, abates or is discontinued; or a final judgment, rendered therein in favor of the plaintiff, is fully paid or a final judgment is rendered therein in favor of the defendant. But, in the case last specified, a stay of proceedings suspends the effect of the annulment, and the reversal or vacating of the judgment revives the warrant.

13. The term, "judgment creditor." signifies the person who is entitled to collect, or otherwise enforce, in his own right, a judgment for a sum of money, or directing the payment of a sum of money. 14. A " judgment creditor's action' is an action brought as prescribed in article first of title fourth of chapter sixteenth of this act. or any other action, brought by a judgment creditor to aid the collection of a judgment for a sum of money, or directing the payment of a sum of money.

15. [Repealed by ch. 677 of 1892.]

16. A distinct parcel of real property is a part of the property, which is or may be set off by boundary lines, as distinguished from an undivided share or interest therein.

17. [Repealed by ch. 677 of 1892.]

18. A domestic corporation" is a corporation created by or under the laws of the State or located in the State, and created by or under the laws of the United States, or by or pursuant to the laws, in force in the colony of New York, before the nineteenth day of April, in the year 1775. Every other corporation is a foreign corporation."

19. The terms. "trial juror," and trial jury." are respectively equivalent to the terms "petit juror," and "petit jury," as used in the constitution and laws of the State. The word, notify." as used, with respect to procuring the attendance of a juror. is equivalent to the word, summon." as used in the like connection, in the same constitution and laws.

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