267. L. 1897, Ch. 403, § 1 pt. Consolidated in Code Civ. Pro. § 941a.

268. L. 1897, Ch. 622. Consolidated in Code Civ. Pro. § 961f.

269. L. 1899, Ch. 150. Sections 1-3 consolidated in Code Civ. Pro. 3331a. Section 4 is a repealing section.

270. L. 1900, Ch. 223. Consolidated in Code Civ. Pro. § 2408a.

271. L. 1900, Ch. 510.

§ 2481, subd. 12.

Consolidated in Code Civ. Pro.

272. L. 1908, Ch. 185, §§ 2, 3. Consolidated in Code Civ. Pro. § 2509, subd. 7.

273. Code Civil Procedure §§ 27 pt., 95 pt., 360 pt. Section 27, part relating to surrogate has been inserted in § 2507. Section 95, part relating to surrogate has been inserted in § 2512. Section 360, part relating to surrogate has been made § 1323a.

274. Code Civil Procedure § 83 pt. The fourth sentence of Code Civ. Pro. is made § 1323a. The remainder of § 83 is in Judiciary Law, §§ 14, 24, 295-297, 301.

275. Code Civil Procedure, article headings of Ch. 1, Tit. 2. This title formerly embraced three articles, including $$ 46–99. Of these sections the ones remaining in the Code are $$ 52, 53, 55, 60 pt., 65. 83 pt., and 95 pt. It has been thought best to remove the article headings and let the title stand without a division into articles.

962

NOTES TO AMENDMENTS TO CODE OF CIVIL PRO

CEDURE.

Made by L. 1909, Ch. 65.

[Prepared by Board of Statutory Consolidation.]

1. 356. This section is inserted in the Code of Civil Procedure because it relates to the powers of county judges and provisions of a similar nature are now in this title of the Code. Former 356 of the Code is recommended for repeal in the Judiciary Law and County Law.

3. § 801a. This section is consolidated in the Code of Civil Procedure, since it deals entirely with practice and has no place in the Partnership Law. L. 1880, Ch. 561, §§ 1-4, were incorporated in and repealed by the Partnership Law enacted in 1897. When L. 1880, Ch. 561, was incorporated in the Partnership Law the section consolidated in the text was left unrepealed in the session laws probably because it contained practice matter. is now placed in the Code of Civil Procedure with a proper reference to $20 and 21 of the Partnership Law where the remainder of the statute is to be found.

It

4. § 841a. The provision inserted in the text is matter relating to practice which is now found in the session laws. The provision relates to evidence and has been placed under that head in the Code of Civil Procedure under the article relating to the competency of witnesses. It is made a new section at the end

of Art. 1, Tit. 1, Ch. 9.

5. § 931a. This section consists of the last sentence of Code Civil Procedure, § 432, subd. 2. The portion of § 432, subd. 2, which relates to the method of designating, by a foreign corporation, a person upon whom to serve a summons has been transferred to the General Corporation Law, and the portion of said subdivision here consolidated is an evidence provision and should be with similar provisions in the Code of Civil Procedure. There were provisions relating to the designation by a foreign corporation of a person upon whom to make service, both in the Code of Civil Procedure (§ 432) and in the General Corporation Law (§ 16). These provisions were not entirely harmonious and in the text by the insertion of the new section in the Code of Civi Procedure, to wit: Section 931a, and by amending § 432 of the Code of Civil Procedure these provisions have been harmonized. The substantive matter in both §§ 432 and 16 relating to the actual designation of a person upon whom to make service has been consolidated in the General Corporation Law (§ 16), while the practice provisions relating to the service of papers upon a foreign corporation have been brought together in the Code of Civil Procedure. The General Corporation Law (§ 16) provides that the person designated must have an office or place of business at the place where such corporation had its principal place of business within the state, while the Code of Civil Procedure (§ 432, subd. 2) provides that the designation " must specify a

place within the state as the office or residence of the person designated," and does not require that the place should be the same as the location of the principal place of business of the corporation. The Code of Civil Procedure (§ 432, subd. 2) provides that a person designated may from time to time “change the place specified as his office or residence to some other place within the state by a writing executed by him and filed in like manner," while the General Corporation Law (§ 16) provides that if the person designated "removes from the place where the corporation has its principal place of business within the state and the corporation does not within thirty days after such removal designate another person upon whom process may be served within the state the secretary of state may revoke the authority of the corporation to do business within the state and process may be served upon the secretary of state. The General Corporation Law (§ 16) provides for a case where a person designated dies or removes from the place where the corporation has its principal place of business within the state, while the Code (§ 432, subd. 3) provides for a case where the designation is not in force." While $432 of the Code was amended as late as 1903 by Ch. 311, and § 16 of the General Corporation Law was amended only as late as 1895 by Ch. 672, the provisions of the General Corporation Law have been followed in the consolidation rather than those of the Code as the later expression of the Legislature, since the amendment of the Code in 1903 related to other matters in the section and did not affect the original provisions relating to the designation of the person upon whom service might be made for a foreign corporation. All of the substantive provisions relating to the manner of designating a person upon whom service may be made on behalf of a foreign corporation have been consolidated in § 16 of the General Corporation Law and the whole subject made consistent. While $16 of the General Corporation Law provides for service in case the designated person dies or removes from the place where the corporation has its principal place of business, the language of subd. 3 of § 432 of the Code of Civil Procedure has been preserved as broader in its application, covering any case where the designation is not in force." The General Corporation Law provides for service in a case where the person designated dies or removes from the place where the corporation had its principal place of business within the state and this provision has been incorporated as subd. 4 of § 432 of the Code of Civil Procedure so that the section may provide for a complete scheme for service upon a foreign corporation.

6. § 931b. It seems incongruous to retain this provision as a part of a section in the General Construction Law relating to what shall constitute a quorum or majority of a public board or body and the provision in the text has been placed therefore with these provisions of the Code of Civil Procedure relating to documentary evidence and presumptive evidence of written instru

ments.

7. § 941a. This section consists of a part of L. 1891, Ch. 125, § 5. The remainder of L. 1891, Ch. 125 providing for the publi cation of the Colonial Statutes by the former commissioners of statutory revision has been treated as special and not repealed. It seems that the provision consolidated in $ 941a is sufficiently important to be included in the Code with other similar matter. 8. § 961a. This statute is provided for in Penal Code, § 19,

as to criminal proceedings and is inserted here to take care of its application to civil matters.

9. § 961b. This statute consists of two sections, one of which appears in the text and the other of which provides when the act shall take effect. The word criminal" is not necessary, as the rules of evidence in civil cases are applicable to criminal cases except as otherwise provided in the Code of Criminal Procedure (Code of Criminal Procedure, § 392).

10. § 961c. This section is a consolidation of L. 1884, Ch. 376, §§ 1, 2. It is the whole of the statute and the only change made is the change of the word "act" to section." The statute relates to the subject of evidence which is treated in the Code and has been consolidated therefore in the Code. The second section of the act is the last sentence of the section as incorporated in the text.

11. § 961d. This statute has not been inserted in the Code of Criminal Procedure because the rules of evidence in civil cases apply to criminal cases (Code of Criminal Procedure, § 392). The last sentence has been omitted as having no practical use, the statute having been enacted in 1888.

12. § 961e. This section is the whole of L. 1890, Ch. 158, section 2 of the statute being the clause relating to when the statute shall take effect. It is a provision relating to evidence, and as these provisions are now contained in the Code of Civil Procedure the statute has been incorporated under its appropriate head in the Code of Civil Procedure.

13. § 961f. The statute incorporated in the text consists of two sections. The second section provides for the taking effect of the statute and has been omitted as unnecessary. The whole of the first section has been consolidated as a part of the Code of Civil Procedure relating to evidence.

14. § 1323a. This section is the fourth section of Code of Civil Procedure, § 83. The remainder of the section is consolidated in Judiciary Law, §§ 14, 24, 295-297, 301. The word "such" in the section as contained in the Code of Civil Procedure relates to the presiding" judge, and by reason of the removal of the balance of the section it becomes necessary to insert the words "the presiding" in place of the word "such." This provision has been retained in the Code of Civil Procedure as practice matter, while the remainder of the section relating to court stenographers has been placed under appropriate heads in the Judiciary Law.

15. § 1404a. The provision incorporated in the text is L. 1880, Ch. 393. Section 2 of the statute is the provision relating to the time when the statute shall take effect, and has been omitted as unnecessary. The statute relates to the exemption of exhibits at exhibitions and as similar provisions are in the Code of Civil Procedure the statute has been placed in its appropriate sur roundings.

15a. 2344a. This section, relating to the power of the sn preme court to compel the performance of certain contracts made by incompetent persons while capable of contracting, has been inserted in the Code of Civil Procedure, since it deals with the power of the court and has no other proper classification. The matter embraced in the section is that contained in L. 1880. Ch. 423, as amended by L. 1885, Ch. 267. § 2. The statute of 1880 amended R. S., Pt. 2, Ch. 5, Tit. 2. § 22, by changing the reference to the court of chancery to the supreme court and adding certain new

matter. This statute seems to be alive, since the amendment was passed subsequent to but at the same session as the, Code of 1880, and was subsequently recognized and amended by the Legislature by L. 1885, Ch. 267, § 2.

Throop in his note to § 2345 says with reference to the amendment made by Ch. 423: It is supposed that this amendment fell with the repeal of this section of the revised statutes which took effect September 1, 1880," and in a later edition says that Ch. 423 is substantially embodied in the amendment of Code, § 2346, made by L. 1882, Ch. 399, which is the last sentence of § 2346 of the present Code. There is some variation and it has been deemed best to preserve the provision of the Revised Statutes as consolidated in the text.

In connection with this section see Code of Civil Procedure, chapter 17, title 7, relating to the disposition of the real property of an infant, lunatic, idiot or habitual drunkard.

Section 22 of the Revised Statutes incorporated provides that the court of chancery (changed by the amendment of 1880 to supreme court) shall have authority to decree and compel the specific performance of any bargain, contract or agreement which may have been made by any lunatic or other person specified in the first section of this title." The first section referred to provides that the chancellor shall have the care and custody of “all idiots, lunatics and persons of unsound mind and persons who shall be incapable of conducting their own affairs in consequence of habitual drunkenness." Idiots, lunatics and habitual drunkards are expressly mentioned in the section as incorporated in the text which is sufficient to cover other persons of unsound mind, since the General Construction Law, § 28 (Statutory Construction Law, § 7) defines lunatic as follows: "The terms lunatic and lunacy include every kind of unsoundness of mind except idiocy."

16. § 2408a. This section contains the whole of L. 1902, Ch. 228. The second section relates to the time when the statute shall take effect. The statute has reference to foreclosure of mortgages by advertisement and properly belongs in the Code of Civil Procedure where that proceeding is now contained.

17. § 2481, subd. 12. The provisions of L. 1884, Ch. 309, as amended by L. 1900, Ch. 309, seem not to be included among the powers of a surrogate as defined in the Code of Civil Procedure. Hence the insertion of § 1. Section 2 is a validating provision applicable to acts done prior to 1884 and has been treated as special and left unrepealed.

18. § 2509, subd. 7. This subdivision is part of L. 1889. Ch. 330, as amended by L. 1895. Ch. 544. Section 1 of the statute is in the County Law (§ 168) and § 2 has been incorporated as a part of the Code of Civil Procedure as § 3306a. It is a matter that relates to the surrogate court and therefore has been placed In chapter 18 of the Code of Civil Procedure where the practice in such courts is found. The statute should not be allowed to exist as an independent statute but should be consolidated as a part of the surrogate court provisions in the Code of Civil Procedure.

19. § 2513a. This section is the portion of Code of Civil Procedure. § 360, not embraced in Judiciary Law. $$ 198, 382-385. The section would be out of place under title 5 of chapter 3 of the Code, entitled "County Courts," and hence it has been transferred to chapter 18, which relates to surrogate courts. The