§ 65. Powers of justice of supreme court. Any justice of the supreme court power to hold a special or trial term of the supreme court [in any county] for whole or any portion of the term, and to act upon any business which regularly cor before the term in which he is sitting, except where he is personally disqualified fr sitting, in a particular action or special proceeding. Each justice, at all reasona times, when not engaged in holding court, must transact such judicial business as m be done out of court. Source CCP 235, amended by adding the words "in any county" in accordance with the decisions and § 6 of art 6 of the constitutionRevisers' Note. Star (*) means read Not into note heading. What terms justice may hold-Criminal term Appellate Division, tho not member of Appellate Division (People 149 NY 190). Business on which justice may act-Commit for contempt (PxPost 50 Hun 243, 3 NYS 142). Compel surgical examination of plaintiff su for personal injury in advance of trial (Q Quigan 129 NY 50). Correct error in valuat of property sought in condemnation proceedi (LongIsland 24 NYS 807, 30 AыNC 59). junction order in action pending in one judic district to restrain proceeding pending another (Platt 61 NY 378). Modify errone order (Salmon 75 NY 479). Stay proceedin pending appeal (Hull 27 Hun 21). CASES NCE CIVIL PRACTICE ACT IN EFFECT JUDICIAL BUSINESS OUT OF COURT outside county, valid (PvJackson 205 indictment during adjournment: justice out- 202, 199 NYS 870). § 66. Grant by appellate division of orders refused by court or justice. [The app late division] may grant any order or provisional remedy which has been applied f without notice to the adverse party and refused by the supreme court or a justi thereof. Source CCP 1348, last clause, substance unchanged-Bevisers' Note. Star (*) means read Not into note heading. Orders granted-Approval of order made by state lunacy commission vacation (Board 76 Hun 74, 27 NYS 856). *Certiorari, vacation (PxJoline 129 AD 267, 113 NYS 861, afd 194 NY 383). Costs retaxed (Campbell 46 MIS 409, 92 NYS 413). Demurrer stricken as frivolous (Galit 24 How 193). Exceptions required to be heard (Dickson 45 Mis 572, 91 NYS 36). Executrix required to account (Callahan 66 Hun 118, 20 NYS 824). Injunction corrected (Marty 66 AD 527, 73 NYS 369). In special proceedin (Moschell 66 Hun 567, 21 NYS 683). Interr gatories settled (Uline 79 NY 175). Luna proceedings stayed (Dunn 14 NYS 14). Procee ings to enforce default judgment, vacating st (Bimboni 157 NYS 299). Referee's report divorce suit confirmed (Uhlmann 17 AbNC 236 Staying trial until order for examinatio obeyed (Palmer 178 NYS_908). Supplement proceedings (PxGrant 51 Hun 53, 3 NYS 768 Constitutional jurisdiction-Not curtailed section (Mitchel 177 AD 663, 164 NYS 336). CASES SINCE CIVIL PRACTICE ACT IN EFFECT ORDERS GRANTED— ordered returned (Both 200 AD 423, 19 NYS 822). § 67. Jurisdiction of county court. The jurisdiction of each county court extend to the following actions and special proceedings, in addition to the jurisdiction, powe and authority conferred upon a county court in a particular case by special statutor provision: 1. To an action for the partition of real property; for dower; for the foreciosur redemption or satisfaction of a mortgage upon real property; or for the foreclosure a lien arising out of a contract for the sale of real property, or to procure a judgmen requiring a specific performance of a contract relating to real property, where the re property to which the action relates is situated within the county; or to foreclose a lie upon a chattel in a case specified in section two hundred and six of the lien law wher the lien does not exceed one thousand dollars in amount and the chattel is found withi the county. [Am'd by L. 1924, ch. 157, in effect Sept. 1.] 2. To an action in favor of the executor, administrator or assignee of a judgmen creditor, or in a proper case in favor of the judgment creditor. to recover a judgmen for money remaining due upon a judgment rendered in the same court. 3. To an action for any other cause, where the defendant is, or if there are two more defendants, where all of them are, at the time of the commencement of the action residents of the county, and wherein the complaint demands judgment for a sum money only not exceeding two thousand dollars; or to recover one or more chattels th aggregate value of which does not exceed one thousand dollars with or without damage for the taking or detention thereof. 4. To the custody of the person and the care of the property, concurrently with th supreme court, of a resident of the county, who is incompetent to manage his affairs reason of lunacy, idiocy or habitual drunkenness, or [by reason of] imbecility arisin from old age or loss of memory and understanding or other cause; and to every specia proceeding which the supreme court has jurisdiction to ente tain for the appointme ofs committee of the person or of the property of such an incompetent person or for the sale or other disposition of the real property situated within the county of a person wherever resident who is so incompetent for either of the reasons aforesaid, or who is an infant; or for the sale or other disposition of the real property, situated within the county, of a domestic religious corporation. Searce CCP to 340 unchanged-Revisers' Note. | unwritten mortgage (Thomas 122 NY 84, afg Star () means read Not into note heading. 46 Hun 75), to reform, tho foreclosure also Constitutionality-L 1880 c 480 increasing sought (Thomas 122 NY 84, afg 46 Hun 75; Jurisdictional amount from $1000 to $3000 was Avery 24 Hun 548). Mechanics' lien, to foreconstitutional (Buckhout 28 Hun 484). close (Raven 148 NY 415, afg 71 Hun 197, 24 Powers possessed Amendment of complaint NYS 601). Rent payable in farm products, to reducing demand to jurisdictional amount, recover (Lake 18 NYS 342). Partition, may permit (Heffron 66 AD 443, 73 NYS 410). cancel deed and determine conflicting claims Appointment of ccmmittee for lunatic, where (Bell 9 NYS 400). Realty, to return possesfading of inquisition authorizes appointment, to sion of (Wilkins 3 NYS 897, 15 CivP 168). Spedismiss proceedings for (Wells 57 AD 5, 67 NYS cific performance: of contract for sale of land 681, afd 169 NY 595, 175 NY 139, rvg 77 AD (Adams 46 Hun 105), of incomplete contract 633, 79 NYS 1129). Attorney's expenses in- (Thomas 122 NY 84, afg 46 Hun 75). Supplecurred in defense of actions against him on mentary proceedings, by receiver in, to set aside account of services rendered incompetent, to transfer of debtor's property (Ward 157 NY low (Haslett 188 AD 208, 176 NYS 800). 301). Foreclosure, to pass on defense of infancy of mortgagor's grantor (Oneida 179 AD 282, 166 NTS 280). Judgment: in tort action, to render against resident defendants, tho non-residents amed in summons and complaint (Weldman # NYS 1057), obtained by improper evidence, to vacate (Wood 75 Mis 521, 135 NYS 876). Leave to sue committee of lunatic in supreme court, to grant (Kent 16 AD 496, 44 NYS 901, 154 NY 749). Partition suit, to substitute ey paid by purchaser for interests of perwhose title he did not acquire under executur's deed (Stappenbeck 73 Mis 434, 133 NYS 2). Sewer assessments, to affirm (Klock 30 AD 2451 NYS 897). Title to dam in action for Boding land (Shaver 38 Hun 632.) Actions within jurisdiction-Accounting be- Special proceedings within jurisdiction-Accounting by executor (Pond 40 Mis 66, 81 NYS 397, 40 NYS 847), committee of incompetent (Maxwell 218 NY 88), guardian appointed to sell infant's realty (Brown 57 NY 286). Payment of lunatic's debts (Wing 83 Hun 284, 31 NYS 941). Under writ de lunatico inquirendo (VanDusen 51 NY 378). County residence necessary-Action against New York City (Maisch 193 NY 460, afg 127 AD 424, 111 NYS 645; Eldred 159 AD 301, 144 NYS 402). Appointment of committee of lunatic (Kent 33 AD 112, 53 NYS 244). Assumpsit (Frees 6 NY 176). Contract, action on, all defendants jointly liable (Kortvellyeszsy 162 AD 285, 147 NYS 586). Conversion, action for (Dakin 68 Mis 423, 125 NYS 44). •Money only, action for, removed from New York City Municipal Court (Raynes 44 Mis 81, 89 NYS 732). Penalty action for under Agricultural Law (People 120 NYS 618). Personal injury ac tion against corporation having principal place of business in another county (Heenan 34 Hun 602). Complaint sufficient-Defendants residence stated (Curran 141 AD 38, 125 NYS 758). Defendant's residence not stated (Gilbert 111 NY 494, afg 41 Hun 594; Frees 6 NY 176; Maltin 147 NYS 545). Incompetency to manage affairs by reason of lunacy shown (Clark 175 NY 139). Part of defendants non-residents of county shown (Sivaslian 166 NYS 535). Unsoundness of mind shown (Jackson 37 Hun 306). Objection on ground of non-residence waived--By general appearance (Bunker 76 Hun 543, 28 NYS 210; Ross 17 StR 465, 2 NYS 169), after service of summons alone (Kessler 175 NYS 283), and pleading to merits (Holbrook 16 Hun 176; Dake 15 Hun 356: McMahon 14 StR 637). without raising objections (People 120 NYS 618; Dakin 68 Mis 423, 125 NYS 44). Cited but not applied-Adams 8 NYS 17. CASES SINCE CIVIL PRACTICE ACT IN EFFECT BECTION CONSTRUED GENERALLY Notti 206 AD 368, 201 NYS 241). Interest: accruing after action commenced, total amount over $2,000 (Tappin 117 Mis 757, 192 NYS 196). COMPLAINT SUFFICIENT Defendant's residence: not stated in complaint (Gardner 117 Mis 97, 190 NYS 756). FOR NONRESIDENCE Amonat demanded in complaint: is the test OBJECTIONS (Tappin 117 Mis 757, 192 NYS 196). trust on the property (Rohssler 120 Mis| 569, 199 NYS 830). WAIVED General notice of appearance: jurisdiction of person (Gardner 117 Mis 97, 190 NYS 756). 68. When domestic corporation or joint stock company deemed resident for determining jurisdiction of county court. For the purpose of determining the jurisdiction of a county court in either of the cases specified in the last section, a domestic corporaSon or joint-stock association whose principal place of business is established by or Puant to a statute or by its articles of association, or whose principal place of busior any part of its plant or plants, shops, factories or offices is actually located within the county, or in case of a railroad corporation where any portion of the roa operated by it is within the county, it is deemed a resident of the county; and person service of a summons, made within the county, as prescribed in this act, or person service of a mandate whereby a special proceeding is commenced, made within th county, as prescribed in this act for personal service of a summons, is sufficient servi thereof upon a domestic corporation wherever it is located. A city which shall includ within its boundaries, however, more than one county shall not be deemed a domest corporation resident of any county so included, for the purpose of conferring juri diction on a county court. Source CCP 341 unchanged-Revisers' Note. Star (*) means read Not into note heading. Domestic corporation-New York City (Maisch 193 NY 460). Domestic corporation county resident-Manufacturing corporation, where principal place of business established (Meyers 201 NY 163, afg 140 AD 882, 124 NYS 1122). New York City, of New York County (Maisch 193 NY 460, afg 127 AD 424, 111 NYS 645), of Queens County, having part of its offices therein (Eldred 159 AD 301, 144 NYS 402). Of every county in which officer resides or travels (Revere 20 AD 16 46 NYS 989). Railroad where principal place business established (Heenan 34 Hun 602, HowNS 53; Galt 18 AbNC 443). Street ra road, where general business transacted (Irw 54 NYS 195). Surety company having place f transaction of business (Perlman 41 Mis 16 83 NYS 986). Railroad corporation county resident-Operati of street railroad (Johnson 162 AD 753, 147 N 965; NYCity 31 Mis 451, 64 NYS 483). Pa of line within county (Heenan 6 CivP 351). Whe § 69. When jurisdiction of county court co-extensive with supreme court. a county court has jurisdiction of an action or a special proceeding, it possesses th same jurisdiction, power and authority in and over the same, and in the course of th proceedings therein, which the supreme court possesses in a like case; and it may rend any judgment, or grant either party any relief, which the supreme court might rend or grant in a like case, and may enforce its mandates in like manner as the suprem court. Source CCP 348, first sentence unchanged -Revisers' Note. Last sentence is CPA § 74. Star (*) means read Not into note heading. Actions or proceeding within jurisdiction of county court Adjudicate on rights of infant grantor of mortgagor in foreclosure suit (Oneida 179 AD 282, 166 NYS 280). Amend complaint on appeal by increasing amount sued for (Simpson 48 Hun 113). Cancel deed in partition suit (Bell 9 NYS 400), transcript of justice's judgment (Daniels 23 Mis 235, 51 NYS 1136). Grant equitable relief in partition suit (Stappenbeck 73 Mis 434, 133 NYS 482), new trial (Kilmer 13 Hun 224). Over resident tort feasors where liability severable from nonresidents (Weidman 16 AD 616, 44 NYS 1057). Reform bond in suit to foreclose mortgage securing same (Mead 56 Hun 279, 9 NYS 586), mortgage (Thomas 122 NY 84, afg 46 Hun 75; Avery 24 Hun 550). Substitute trustee in mortgage foreclosure action (People's 43 AD 34 60 NYS 178). Try question of title on appe (Gould 87 Hun 533, 34 NYS 289). Vacate ju tice's judgment (Daniels 36 AD 540, 55 NY 692), Execution on justice's judgment (Rowe AD 173, 51 NYS 889). Judgments which county may render-Award possession to vendor in action by vendee f damages (Andrews 66 Mis 66, 120 NYS 431 Deficiency judgment in mortgage foreclosu suit (Hawley 64 Hun 550, 19 NYS 521).. C counterclaim for over $2000 (Howard 176 NY rvg 81 AD 386). Order in supplementary pr ceedings requiring judgment debtor make di covery concerning property (Ackerly 14 NY |466). *Order requiring assignee for credito to ray over amount wrongfully converted by hi (Witmer 40 Hun 66). Subrogation of mortgag to the rights of holder of discharged mortga (Bussing 177 AD 95, 163 NYS 982). CASES SINCE CIVIL PRACTICE ACT IN EFFECT· JUDGMENT WHICH COUNTY COURT! Counterclaim in partition: impress impli MAY RENDERtrust on the property (Rohssler 120 M 569, 199 NYS 830). § 70. Sessions of county court. The county court is always open for the transactic of any business for which notice is not required to be given to an adverse party, exce where it is specially prescribed by law that the business must be done at a stated terr Source-CCP 355 unchanged-Bevisers' Note. Court properly convened.-Order made by cou Business for which notice not required-Execu- instead of judge (PvNugent 67 NYS 1033). tion of certificate that title to realty in ques- Cited but not applied-Johnson 30 Hun 166. tion (Lillis 8 Hun 280). § 71. Application of provisions to county court. Each provision of [law or rule conferring power upon or authorizing a proceeding to be taken at a [specified] ter [of court, if the provision be] applicable to a county court, is to be construed as appl ing to any term of the county court held pursuant to an appointment made as pr scribed by law. Source CCP § 3342, substance unchanged- tice of peace (Bumpus 49 Mis 417, 99 NI § 72. Service of execution or process of county court in any county. A county cou has power in an action or special proceeding of which it has jurisdiction to send i process and other mandates into any county of the state for service or execution, and to enforce obedience thereto, with like power and authority as the supreme court. Source-CCP $ 347 unchanged-Revisers' Note. lien foreclosure out of city for service (McCann 29 Mis 283, 60 NYS 467). Cited but not applied-Tausant 33 Mis 587, 68 NYS 77; Irwin 25 Mis 187, 54 NYS 195. § 73. Incapacity of county judge or special county judge. If the county judge is for y cause incapable to act in an action or special proceeding pending in the county court, or before him, he must make, and file in the office of the clerk, a certificate of the fact; and thereupon the special county judge, if any, and if not disqualified, must act a county judge in that action or special proceeding. Upon the filing of the certificate, where there is no special county judge or the special county judge is disqualified, the action or special proceeding is removed to the supreme court, if it is then pending ir the county court; if it is pending before the county judge it may be continued before Ey justice of the supreme court within the same judicial district. Source CCP 342, first two sentences un-judge (Queens-Nassau 157 AD 489, 142 NYS anged-Revisers' Note. Last two sentences 589; Reddish 2 NYS 260; Rhinebeck 19 Hun 17 CPA 190.346). Judge not disqualified-By mere absence from Cited but not applied-Humphrey 157 NYS 807; Munson 88 NYS 509; McLaughlin 3 Hun 250. CASES SINCE CIVIL PRACTICE ACT IN EFFECT REMOVAL TO SUPREME COURT PROPER- complaint entitled in county court (*RetSupreme court answer served summons and ting 120 Mis 650, 200 NYS 252). $74. Power of county judge in matters before county court. [Where a county ourt has jurisdiction of an action or special proceeding,] the county judge possesses the same power and authority in the action or special proceeding which a justice of the preme court possesses in a like action or special proceeding brought in the supreme Searce CCP $348, last sentence, substance | unchanged-Revisers' Note. CASES SINCE CIVIL PRACTICE ACT IN EFFECT POWERS POSSESSED— commenced (Tappin 117 Mis 757, 192 NYS Judgment over $2,000: amount demanded 196). ncreased by interest accruing after action 75. Power of county judge in special proceedings. The county judge also possses the same power and authority, in a special proceeding, which can be lawfully inEtated before him, out of court, which justice of the supreme court possesses in a ike special proceeding, instituted before him in like manner. Srce CCP 349 unchanged-Revisers' Note. | supplementary proceedings (Ackerly 14 NYS 460). Jame power as supreme court justice-Over 76. Power of county judge when holding court in another county. During the period that any county judge shall be in a county other than his own, for the purpose of balding courts therein, he may exercise all the powers and perform all the duties of the County judge of such other county, which said last-mentioned judge is by law authorized to exercise and perform out of court or in vacation; provided, however, that nothing berein contained shall empower him to perform the duties of surrogate in such other Source CCP 356 unchanged-Revisers' Note. 77. Power of county judge to perform duties of justice of supreme court at chamb. A county judge within his county possesses and upon proper application must ercise the power conferred by law in general language upon an officer authorized to perform the duties of a justice of the supreme court at chambers or out of court. Source CCP $ 241 unchanged-Revisers' Note. | 181, 19 CivP 91, 10 NYS 684, afd 132 NY 403), Star (*) means read Not into note heading. order to show cause why should not issue (BabPowers included-Infants, care, custody, and cock 23 Hun 391), in action pending in sutrol of (PxWilliams 46 Hun 408; PXRhoades preme court (PvWindholz 68 AD 552, 74 NYS Barb 521; PxWard 59 How 174 PxHoyle 6 241). Review determination of county clerk on Cap 299). Examination before referee, requir- filing certificates of nomination (Cuddeback 39 submission to (Graves 12 CivP 165). Garn- NYS 388). Security for costs requiring in execution against supreme court judgment action in supreme court (Gates 171 NYS 1037; Purkman 177 NYS 589). Habeas corpus Longstreet 15 NYS 608, 21 CivP 16). ShortPhilds 187 AD 604, 176 NYS 321; Lowman ening time for serving notice of motion in case NYS 826). Irjunction (Aldinger 57 Hun pending in supreme court (Larkin 25 Hun 254). Powers vary-With powers of supreme court | (PvWindholz 68 AD 552, 74 NYS 241). CCP referees justice (PxParr 121 NY 679). 8780 respecting orders to show cause (Larkin Controlled by-8 880 as to injunctions 25 Hun 254). In case § 78. Continuance of proceedings before judges of same court. In the counties within the first and second judicial districts, a special proceeding instituted before a judge of a court of record or a proceeding commenced before a judge of the court out of ecourt in an action or special proceeding pending in a court of record, [or an order made in any such proceeding] may be [amended, the time for service of an order therein, enlarged or extended or the proceeding] continued from time to time [or heard by or]** before one or more other judges of the same court with like effect as if it had been instituted or commenced before the judge who last hears the same. [Any judge of the court shall have power to act in the matter at any stage of the proceeding as if he were the judge before whom the original proceeding had been begun.] Source CCP 26 unchanged-Revisers' Note. ceedings (Woodruff 90 NY 521). To issue subStar (*) means read Not into note heading. pœna in supplementary proceeding which has Section not applicable-To proceedings in dis- lapsed by failure to adjourn (Wilson 150 ADM trict court (Rodding 2 NYS 55). 577, 135 NYS 435). To make order in suppleSubsequent judge authorized-To change re- mentary opening debtor's default (Morrison 49 turn day in order for examination in supple- Mis 464, 98 NYS 850). To vacate order in mentary proceedings (Bridges 63 Mis 27, 117 supplementary proceedings (McAlpin 54 Mis 647, NYS 306; *Ward 144 AD 143, 128 NYS 846, afg 105 NYS 9). Where application in condemna70 Mis 506, 127 NYS 713). To entertain motion tion proceedings is made to judge who resigns in supplementary proceedings (Dresser 15 before decision (Mayor 139 NY 140). *Where How 19). To examine debtor in supplementary there is no authority to make the original order proceedings (Dodge 54 Mis 37, 104 NYS 497). in supplementary proceedings (Chesnut 162 NYS To fix sheriff's compensation in attachment pro-137). AR § 79. Vacancies or changes in judges; power of judge out of office. An action ordresley special proceeding, civil or criminal, in a court of record, is not discontinued by a vacancy or change in the judges of the court or by the re-election or re-appointment of a judge; but it must be continued, heard and determined by the court as constituted at s the time of the hearing or determination. After a judge is out of office, he may settled a case or exceptions, or make any return of proceedings, had before him while he was in office, and may be compelled so to do by the court in which the action or special proceeding is pending. Note. Source CCP 25 unchanged-Revisers' Star (*) means read Not into note heading. Action or proceedings continued-Action begun prior to expiration of judge's term continued after his resignation (Kelly 16 Hun 242). *Application in condemnation proceedings before judge who resigned before decision (Mayor 139 NY 140). Settlement of case-Authorized after resignation (Knobloch 103 NYS 713). Not compelled after resignation and removal from state (Jermyn 160 AD 832, 146 NYS 57). Orders not authorized-Denying new trial three years after term expired (Smith 173 AD 524 159 NYS 1035). § 80. Powers of court exercisable by referees. Where the court is authorized to approve an undertaking or the sureties thereto, or to make an examination or inquiry, or to appoint an appraiser, receiver or trustee, it may direct a reference to one or more persons designated in the order, either to make the approval, examination, inquiry or appointment, or to report the facts to the court for its action thereupon. Where, according to the practice of the court of chancery on the thirty-first day of December, eighteen hundred and forty-six, a matter was referable to the clerk or to a master in chancery, a court having authority to act thereupon may direct a reference to one or more persons, designated in the order, with the powers which were possessed by the clerk or the master in chancery, except where it is otherwise specially prescribed by law. Source CCP § 827, substance unchangedRevisers' Note. Star (*) means read Not into note heading. Power to refer-City court of NYCity (Gedney 90 Mis 275, 153 NYS 423; Gillespie 12 Mis 40, 33 NYS 33. afg NYS 754; *Voicly 65 Mis 539. 120 NYS 913). Municipal courts (Mitchell 94 Mis 270, 158 NYS 31). References authorized-Accounting (Fine 105 Mis 318, 173 NYS 137). After issue joined to take testimony or dispose of any issue (Doyle 136 NY 505). After question decided (Francis 88 Hun 325, 34 NYS 752). Attorney to pay over money collected. application to compel (Gillespie, 12 Mis 40, 33 NYS 33, afg NYS 754). Attorney's fee, to ascertain amount (Doyle 26 Mis 61, 56 NYS 441; Amsdell 20 WkD 370). Inventory of safe deposit box (Sanford 176 AD 199, 111 NYS 1026). Royalties on patent and damages, to ascertain amount of (Russell 112 AD 703, 98 NYS 777). Testimony to be used at trial, to take (Farmers 44 Hun 567). *Value of fee and rental loss of land taken, to deter mine (Doyle 1 Mis 376, 20 NYS 865). Chancery practice not followed-Written interrogatories (Dowd 183 AD 580, 170 NYS 164). Reference of part of issues-Note on (Kelly 18 AbNC 416). Controlled by CCP § 873 as to appointment of referees by city court of NYCity (Gedney 90 Mis 275 153 NYS 423). CASES SINCE CIVIL PRACTICE ACT IN EFFECT REFERENCES AUTHORIZED— |