PART III. Judgment roll on appeal. Costs, how awarded. Restitution Setting off costs and recovery. The costs making and settling case and exceptions, motions for new trials, and making up the judgment roll in the supreme court, are hereby made applicable to all appeals brought up for trial as in this chapter provided. As amended by Laws of 1851, ch. 479; 1862, ch. 460. 24 N. Y., 635; 29 B., 290; 24 B., 443; 22 B., 147; 21 B., 338; 18 B., 387; 15 B., 135; 14 B., 252; 11 B., 660; 18 How. P. R., 455; 17 How. P. R., 257; 16 How. P. R., 538; 10 How. P. R., 371; 8 How. P. R., 378; 7 How. P. R., 64; 11 Ab., 89; 10 Ab., 212; 9 Ab., 411; 3 Ab., 136, 313; 4 E. D. S., 29, 52, 199, 225, 236; 3 E. D. S., 171, 172; 2 E. D. S., 376; 1 E. D. S., 361; 1 Hilt., 303. $367. To every judgment upon an appeal there shall be annexed the return on which it was heard, which shall be filed with the clerk of the court, and shall constitute the judgment roll. As amended by Laws of 1852, ch. 392. $368. If the judgment be affirmed, costs shall be awarded to the respondent. If it be reversed, costs shall be awarded to the appellant. If it be affirmed in part, the costs, or such part as to the court shall seem just, may be awarded to either party. 22 B., 323; 21 B., 338; 15 B., 135; 12 How. P. R., 368; 3 How. P. R., 412. $369. If the judgment below, or any part thereof, be paid or collected, and the judgment be afterwards reversed, the appellate court should order the amount paid or collected to be restored, with interest from the time of such payment or collection. The order may be obtained on proof of the facts made at or after the hearing, upon a previous notice of six days, and if the order shall be made before the judgment is entered, the amount may be included in the judgment. As amended by Laws of 1857, ch. 723; 1 Ab., 156. $370. If, upon an appeal, a recovery be had by one party, and costs be awarded to the other, the appellate court shall set off the one against the other, and render judgment for the balance. S371. Costs shall be allowed to the prevailing party in on appeal. judgments rendered on appeal in all cases with the following exceptions and limitations: In the notice of appeal, the appellant shall state in what particular or particulars he claims the judgment should have been more favorable to him. Within fifteen days after the service of the notice of appeal, the respondent may serve upon the appellant and justice an offer, in writing, to allow the judgment to be corrected in any of the particulars mentioned in the notice of appeal. The appellant may, thereupon, and within five days thereafter, file with the justice a written acceptance of such offer, who shall, thereupon, make a minute thereof in his docket, and correct such judgment accordingly, and the same so corrected shall stand as his judgment and be enforced accordingly, and any execution which has been issued upon the judgment appealed from shall be amended by the justice to correspond with the amended judgment, and no undertaking given to stay exe- Amended by Laws of 1851, ch. 479; 1862, ch. 460; 1863, ch. 392. TITLE XII. OF THE MISCELLANEOUS PROCEEDINGS, IN CIVIL ACTIONS, CHAPTER I. Submitting a controversy, without action. II. Proceedings against joint debtors, heirs, legatees, devisees, and III. Confession of judgment without action. IV. Offers of the defendant, to compromise the whole or a part of the action. V. Admission or inspection of writings. VI. Examination of parties. VII. Examination of witnesses. VIII. Motions and orders. IX. Entitling affidavits. X. Computation of time. XI. Notices, and filing and service of papers. XII. Duties of sheriffs and coroners. XIII. Accountability of guardians. XIV. Powers of referees. XV. Miscellaneous provisions. CHAPTER I. SUBMITTING A CONTROVERSY WITHOUT ACTION. SEC. 372. Controversy, how submitted without action. 373. Judgment on, as in other cases, but without costs. 374. Judgment may be enforced, or appealed from, as in an action. CHAP. XI. sy, how without action. $372. Parties to a question in difference, which might be Controver the subject of a civil action, may, without action, agree upon submitted a case containing the facts upon which the controversy de- wit pends, and present a submission of the same, to any court which would have jurisdiction, if an action had been brought. But it must appear by affidavit, that the controversy is real, and the proceeding in good faith, to determine the rights of the parties. The court shall thereupon hear and determine the case, at a general term, and render judgment thereon, as if an action were depending. 6 N. Y., 359; 31 B., 641; 29 B., 563; 26 B., 374; 25 B., 485; 24 B., 434, on, as in but without $373. Judgment shall be entered in the judgment book, Judgment as in other cases, but without costs, for any proceeding prior other cases to notice of trial. The case, the submission, and a copy of costs the judgment shall constitute the judgment roll. 4 How. P. R., 15. = PART III Judgment forced or S374. The judgment may be enforced in the same manner, may be en- as if it had been rendered in an action and shall be subject to appeal in like manner. appealed from, as in an action. 24 B., 434. CHAPTER II. Parties not summoned in action on joint contract, may be PROCEEDINGS AGAINST JOINT DEBTORS, HEIRS, DEVISEES, LEGATEES AND SEC. 375. Parties not summoned in action on joint contract, may be summoned after 376. If judgment debtor die, his representatives may be summoned. 377. Form of summons. 378. To be accompanied by affidavit of amount due. 379. Party summoned may answer and defend. 380. Subsequent pleadings and proceedings same as in an action. S375. When a judgment shall be recovered against one or more of several persons, jointly indebted upon a contract, by proceeding as provided in section 136, those who were not originally summoned to answer the complaint, may be sumafter judg moned to show cause why they should not be bound by the judgment, in the same manner as if they had been originally summoned. summoned ment. If judgment debtor die, 23 How. P. R., 445; 18 How. P. R., 457; 6 How. P. R., 487; 8 Ab., 308. $376. In case of the death of a judgment debtor after his repre judgment, the heirs, devisees, or legatees of the judgment sentatives debtor or the tenants of real property, owned by him and summoned. affected by the judgment, may after the expiration of three may be Form of summons. To be ac by affidavit years from the time of granting letters testamentary, or of administration upon the estate of the testator or intestate, be summoned to show cause, why the judgment should not be enforced, against the estate of the judgment debtor in their hands respectively, and the personal representatives of a deceased judgment debtor, may be so summoned, at any time within one year after their appointment. 12 How. P. R., 385; 11 How. P. R., 212; 13 Ab., 325; 8 Ab., 308; 2 Ab., 432. S377. The summons provided in the last two sections, shall be subscribed by the judgment creditor, his representatives or attorney; shall describe the judgment, and require the person summoned to show cause, within twenty days after the service of the summons; and shall be served in like manner as the original summons. 8 Ab., 308. $378. The summons shall be accompanied by an affidavit companied of the person subscribing it, that the judgment has not been of amount satisfied, to his knowledge or information and belief, and shall specify the amount due thereon. due. Party sum answer and $379. Upon such summons, the party summoned may moned may answer within the time specified therein, denying the judgdefend. ment, or setting up any defense which may have arisen subsequently; and in addition thereto, if he be proceeded against according to section 375, he may make the same defense, which he might have originally made to the action, except the statute of limitations. 8 Ab., 308; 1 Ab., 242. CHAP. XI. pleadings, ceedings, an action. S 380. The party issuing the summons may demur or reply Subsequent to the answer, and the party summoned may demur to the and reply, and the issues may be tried and judgment may be same as in given, in the same manner as in an action, and enforced by execution, or the application of the property charged to the payment of the judgment, may be compelled by attachment, if necessary. 8 Ab., 309. and reply to S381. The answer and reply shall be verified in the like Answer cases and manner, and be subject to the same rules, as the be verified, answer and reply in an action. as in an action. CHAPTER III, CONFESSION OF JUDGMENT, WITHOUT ACTION. SEC. 382. Judgment may be confessed for debt due or contingent liability. 383. Statement in writing, and form thereof. 384. Filing same, and entering judgment. may be con S 382. A judgment by confession may be entered, without Judgment action, either for money due or to become due, or to secure fessed, for any person against contingent liability on behalf of the defendant, or both, in the manner prescribed by this chapter. 16 N. Y., 567; 30 B., 121, 327; 23 B., 404; 20 How. P. R., 338, 418; 18 debt due or contingent liability. S 383. A statement in writing must be made, signed by the Statement defendant, and verified by his oath, to the following effect: 1. It must state the amount for which judgment may be entered, and authorize the entry of judgment therefor; 2. If it be for money due or to become due, it must state concisely the facts out of which it arose, and must show that the sum confessed therefor is justly due, or to become due; 3. If it be for the purpose of securing the plaintiff against a contingent liability, it must state concisely the facts constituting the liability, and must show that the sum confessed therefor does not exceed the same. 20 N. Y., 458; 17 N. Y., 11; 12 N. Y., 216; 9 N. Y., 84; 30 B., 119, in writing, and form thereof. same and $384. The statement may be filed with the county clerk or Filing with the clerk of the superior court of the city of New York, who entering shall indorse upon it and enter in the judgment book a judg- Judgment. ment of the supreme or said superior court, for the amount confessed, with five dollars costs, together with disbursements. PART III. Defendant may serve offer to compro Come and the proceed ingsthereon Defendant The statement and affidavit with the judgment indorsed, shall thenceforth become the judgment roll. Executions may be issued and enforced thereon in the same manner as upon judgments in other cases, in such courts. When the debt for which the judgment is recovered is not all due or is payable in installments, and the installments are not all due, the execution may issue upon such judgment for the collection of such installments as have become due, and shall be in the usual form, but shall have indorsed thereon by the attorney or person issuing the same a direction to the sheriff to collect the amount due on such judgment with interest and costs, which amount shall be stated with interest thereon and the costs of said judgment. Notwithstanding the issue and collection of such execution, the judgment shall remain as security for the installments thereafter to become due, and whenever any further installments become due execution may in like manner be issued for the collection and enforcement of the same. As amended by Laws of 1851, ch. 479. 23 B., 402, 404; 7 Ab., 314; Ab., 209; 1 Ab., 357; 20 How. P. R., 267. CHAPTER IV. OFFERS OF THE DEFENDANT TO COMPROMISE THE WHOLE OR A PART OF SEC. 385. Defendant may serve offer to compromise and the proceedings thereon. $,385. The defendant may at any time before the trial or verdict, serve upon the plaintiff an offer in writing to allow judgment to be taken against him, for the sum or property, or to the effect therein specified, with costs. If the plaintiff accept the offer, and give notice thereof in writing within ten days, he may file the summons, complaint and offer, with an affidavit of notice of acceptance, and the clerk must thereupon enter judgment accordingly. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence, and if the plaintiff fail to obtain a more favorable judgment, he cannot recover costs, but must pay the defendant's costs, from the time of the offer. As amended by Laws of 1851, ch. 479. 8 B., 100; 16 How. P. R., 203; 15 How. P. R., 422, 430; 12 How. P. R., 552; 10 How. P. R., 270, 428; 9 How. P. R., 130, 525; 8 How. P. R., 240; 7 How. P. R., 161, 324; 4 How. P. R., 441; 13 Ab., 84; 9 Ab., 210; 1 Ab., 226, 443. S386. In an action arising on contract, the defendant may, may offer to with his answer, serve upon the plaintiff an offer in writing, liquidate damages condition ally. that if he fail in his defence, the damages be assessed at a specified sum; and if the plaintiff signify his acceptance thereof in writing, with or before the notice of trial, and on the trial have a verdict, the damages shall be assessed accordingly. $387. If the plaintiff do not accept the offer, he shall |