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§ 26. Section 202 is amended, so as to read as follows:
§ 202 Judgment may be had, if the defendant fail to answer the complaint, as follows:
1. In any action arising on contract, for the recovery of money only, the plaintiff may file with the clerk, the summons and complaint, with proof of service, and that no answer has been received. The clerk shall thereupon enter judgment for the amount mentioned in the summons.
2. In other actions, the plaintiff may, upon the like proof, apply to the court, at the time and place specified in the summons, for the relief demanded in the complaint. If the taking of an account or the proof of any fact be necessary to enable the court to give judgment, or to carry the judgment into effect, the court, instead of taking the account or hearing the proof, may, in its discretion, order a reference for that purpose to any person, free from all exception, to be named by the plaintiff. And where the action is for the recovery of money only, the court, if the plaintiff require it, shall order the damages to be assessed by a jury, or if the examination of a long account be involved, by a reference as above provided.
If a demurrer or answer be frivolous, the plaintiff, upon a previous notice of five days may apply to a judge of the court, either in or out of the court, for judgment thereon, and judgment may be given accordingly.
Intended to prevent frivolous demurrers and answers by taking from the defendant any advantage he may expect from them.
§ 27. Section 212 is amended, so as to read as follows:
§ 212. The issues on the calendar shall be disposed of in the following order, unless, for the convenience of parties, or the despatch of business, the court shall otherwise direct:
1. Issues of fact, to be tried by a jury ;
When, however, in respect to all the material allegations of the complaint, the answer contains a denial of knowledge thereof suffi-cient to form a belief, the case shall have preference upon the calendar, and may, with leave of the court, be called for trial or any day of its session. The affidavit of merits heretofore required is abolished.
To prevent delays by evasive answers.
§ 28. Section 230 is amended, so as to read as follows:
§ 230. Judgment may be given, for or against one or more of several plaintiffs, and for or against one or more of several defendants, and it may determine the ultimate rights - of the parties on each side, as between themselves. In an action against several defendants, the court may, in its discretion, render judgment against some of them, leaving the action to proceed against the others, whenever a several judgment may be proper. The court may also dismiss the complaint, in favor of one or more defendants, in case of
unreasonable neglect on the part of the plaintiff to serve the summons on other defendants.
To remove a doubt sometimes entertained,
§ 29. Section 233 is amended, so as to read as foldows : § 233. Judgment upon an issue of law or of fact, or upon confession, or upon failure to answer, (except where the clerk is authorized to enter the same by the first subdivision of section 202, and by section 337,) shall, in the first instance, be entered upon the direction of a single judge, subject to review at the general term, on the demand of either party, as herein provided. But where a reference has been had, and the report of the referees is to stand as the decision of the court, judgment may be entered
upon the filing of the report, subject to review, in like
This may be done now, but as a doubt has been expressed, it may be well to remove it.
§ 30. Section 236 is amended, so as to read as follows: $ 236. The clerk, immediately after entering the judgment, shall attach together and file the following papers, which shall constitute the judgment roll.
1. In case the complaint be not answered, the summons and complaint, proof of service, and that no answer has been received, the report, if any, and a copy of the judgment
2. In all other cases, the summons, pleadings, and a
copy of the judgment, with any verdict or report, the offer of the defendant, case, exceptions, and all orders relating to a change of parties, or in any way involving the merits, and necessarily affecting the judgment.
When the defendant shall be entitled to judgment, if the plaintiff shall not have filed the summons, with proof of service and the pleadings on his part, the copies of summons and pleadings, served on the defendant, may be substituted therefor in making the judgment roll, ar the plaintiff may at the instance of the defendant, be ordered by a judge forthwith to file such papers.
$ 31. Section 239 is amended, so as to read as follows: $ 239 After the lapse of five years from the entry of judgment, an execution may be issued only by leave of the court on motion, with notice to the adverse party. Such leave shall not be given unless it be established by the oath of the party or other proof that the judgment or some part thereof remains unsatisfied and due.
When the judgment shall have been rendered in a court of a justice of the peace, or in a justice's or other inferior court in a city, and docketed in the office of the clerk of the county, the application for leave to issue execution must be to the county court of the county where the judgment was rendered, or in the city and county of New-York to the court of common pleas of that city and county.
§ 32. Section 217 is amended, so as to read as follows: § 247. When an execution against property of the judgment debtor, or of any one of several debtors in the same judgment issued to the sheriff of the county where he resides, or if he do not reside in this state, to the sheriff of the county where the judgment roll is filed, shall be returned unsatisfied in whole or in part, the judgment creditor may obtain an order from a judge of the court or a county judge of the county to which the execution was issued, requiring such judgment debtor to appear and answer, concerning his property, before such judge or a referee appointed by a judge of the court, pursuant to section 255, at a time and place specified in the order.
After the issuing of an execution against property, and upon proof by affidavit, to the satisfaction of the court, that any judgment debtor has property, which he unjustly refuses to apply towards the satisfaction of the judgment, a judge of the court or a county judge may, by an order, require the judgmen debtor to appear at a specified time and place, to answer concerning the same, and such proceedings may thereupon be had, for the application of the property of the judgment debtor towards the satisfaction of the judgment, as are provided, upon the return of an execution.
Instead of the order requiring the attendance of the judgment debtor as provided in this section, the judge may, is it appear to him that there is danger of the debtor's absconding, issue a warrant under his hand, requiring the sheriff of any county where such debtor may be, to arrest him and bring him before such judge. Upon being brought before the judge, he may be examined on oath, and ordered to enter into an undertaking with one or more snreties, that he will attend from time to time before the