tion. Where a party entitled to appeal from a judgment or order, or to move to set aside a final judgment for error in fact, dies either before or after this chapter takes effect, and before the expiration of the time within which the appeal may be taken, or the motion made, the court may allow the appeal to be taken, or the motion to be made, by the heir, devisee, or personal representative of the decedent, at any time within four months after his death. New. § 786. Orders in certain actions; how published. — Where an action is brought for the collective benefit of the creditors of a person, or of an estate, or for the benefit of a person or persons, other than the plaintiff, who will come in and contribute to the expense of the action, notice of a direction of the court, contained in a judgment or order, requiring the creditors, or other person or persons to exhibit their demands, or otherwise to come in, must be published, once in each week, for at least three successive weeks, and as much longer as the court directs, in the newspaper, published at Albany, in which legal notices are required to be published, and in a newspaper, published in the county where the act is required to be done. 2 R. S. 183, 106 (2 Edm. 190). § 787. Time for publication of notice; how computed. The period of publication of a legal notice, in an action or special proceeding, brought in a court, either of record or not of record, or before a judge of such a court, must be computed, so as to exclude the first day of publication, and include the day, on which the act or event, of which notice is given, is to happen, or which completed the full period of publication. Co. Proc., 425. Steinle v. Bell, 12 Abb. N. S. 171. - 788. [Amended, 1877.] Time for doing any act; how computed. - The time, within which an act, in an action or special proceeding, brought, as specified in the last section, is required by law to be done, must be com puted, by excluding the first, and including the last day; except where it is otherwise specially prescribed by law.(1.) If the last day is Sunday, or a public holiday, it must be excluded.(2) Where the act is required to be done within two days, and an intervening day is Sunday, or a public holiday, it must also be excluded.(3) Co. Proc., 407, am'd. (1) Haden v. Buddensick, 49 How. 241; Easton e. Chamberlain, 3 id. 412; Dayton r. McIntyre, 5 id. 117; Bissell v. Bissell, 11 Barb. 96; Ball e. Mander, 19 How. 468; Columbia Turnpike Road . Haywood, 10 Wend. 422; Gallt e. Finch, 24 How. 193; Judd v. Fulton, 4 id. 298; Schenck v. McKie, Id. 217. (2) Taylor v. Corbiere, 8 How. 385; Campbell r. Internat. Life Ass. Soc., 4 Bosw. 298; Ready Roofing Co. v. Chamberlin, 1 Abb. N. C. 192. (3) Taylor v. Corbiere, 8 How. 385; Easton v. Chamberlain, 3 id. 412; King v. Dowdall, 2 Sandf. 131; Anonymous, 2 Hill, 375. ARTICLE SECOND. PREFERRED AND DEFERRED CAUSES. SEC. 789. Preference of certain actions by the people. 790. Id.; of criminal actions. 791. Id. among civil actions. 792. Id.; in mandamus or prohibition. 793. When an order is necessary. 794. When cause passed, how placed upon the calendar. $789. Preference of certain actions by the people.A trial, motion, appeal, or hearing, in an action by the people to recover money, funds, credits, or other prop erty, held or owned by the State, or held or owned, offi cially or otherwise, for, or in behalf of, a public or gov ernmental interest, by a municipal or other public corporation, or by a board, officer, custodian, agency or agent of the State, or of a city, county, town, village, or other division, subdivision, department, or portion of the State, which the defendant has, without right, obtained, received, converted, or disposed of; or to recover damages, or other compensation, for so obtaining, receiving, paying, converting, or disposing of the same; or the aiding or abetting thereof; is entitled, on the application of the attorney-general, to a preference over any other business, at a term or sitting of any court of the State, irrespective of its place upon the calendar. L. 1875, ch. 49, 5. - § 790. Id.; of criminal actions. A criminal action, including an appeal or other proceeding in a criminal cause, is entitled, under the direction of the court, to preference in the trial or hearing thereof, over all civil actions and special proceedings, except as prescribed in the last section. New. $791. [Amended, 1877.] Id. ; among civil actions.Civil causes are entitled to preference among themselves, in the trial or hearing thereof, in the following order, next after the causes specified in the last section but one: 1. [Amended, 1879.] An action or special proceeding, brought by or against the people of the State or by or against any State officer or board of State officers as such, and in which the people or such officer or board appear by the attorney-general; where the attorneygeneral has given notice, at the time of service of notice of trial or argument, of a particular day in the term on which he will move it. If the action or special proceeding is not moved by him for trial or argument on that day, or as soon thereafter in the same term as the court can hear it, the other party may then move the trial or argument; otherwise it shall not be moved out of its order at that term, except by the special order of the court.(1) 2. An action or special proceeding, in which a board of officers exercising powers conferred by a statute for the protection of public health, or public or private property, or for the prevention or punishment of viola tions of a statute relating to either of those subjects, or the commissioners of pilots in the city of New-York are parties; where a notice, similar to the notice prescribed in the last subdivision, has been served by their attorney, at the time of service of the notice of trial or argument. The provisions of the last subdivision, relating to moving the trial or argument, apply to a cause within this subdivision.(2) 3. In the court of appeals or the supreme court, an appeal taken by either party, in an action or special proceeding other than as specified in subdivision first of this section, where the people of the State, or a board of State officers, are sole parties, or a State officer is sole party, plaintiff or defendant.(3.) 4. In the court of appeals, an action, a party to which has died, pending the action, where the pendency of the action prevents a final settlement of the estate of the deceased party.(4) 5. In any court, an action, in which an executor or administrator is the sole plaintiff or sole defendant; an action for the construction of, or an adjudication upon, a will, in which the administrator with the will annexed, or the executor of the will, is joined, as plaintiff or defendant, with one or more other parties; an action in which a receiver of a savings bank is sole plaintiff or sole defendant; and, in the court of appeals or the supreme court, an appeal from the decree or decision of a surrogate's court, determining a will to be valid, and admitting it to probate, or granting general letters of administration.(5) 6. An action for dower; where the plaintiff makes proof, by affidavit, to the satisfaction of the court, or a judge thereof, that she has no sufficient means of support, aside from the estate in controversy.(6) 7. An action against a corporation or joint-stock association, issuing bank notes, or any kind of paper credits, to circulate as money; or by or against a receiver of such a corporation or association. (7) 8. [Amended, 1879.] An action against a corporation, founded upon a note or another's evidence of debt for the absolute payment of money. An action upon an undertaking given upon an appeal to the court of appeals, or to stay the execution on an appeal to the court of appeals. (8) 9. An action against a sheriff, in his official capacity.(9) 10. A cause entitled to preference, by the general rules of practice, or by the special order of the court in the particular case. Where an issue of law and an issue of fact, or two or more other questions of different natures, come before the same term of the court for trial or hearing, the preference given by this section affects only the order, in which the issues or questions of the same nature are to be disposed of. (1) Substance of L. 1858, ch. 37, 21; and L. 1850, ch. 123; 11 Barb. 136. (2) Substance of L. 1863, ch. 412, 1. (3) Substance of Co. Proc., part of 13. (4) Co. Proc., part of 13. (5) L. 1870, ch. 49. See 32 N. Y. 604: L. 1871, ch. 603, 1; L. 1875, ch. 32. (6) L. 1869, ch. 433, 5. Verbal changes. (7) L. 1849, ch. 226, 32? (8) Substitute for 2 R. S. 458, 459, # and 11: Brainerd v. N. Y. & Harlem R. R. Co., 23 How. 491. (9) L. 1871, ch. 733, 1. Where a 792. Id.; in mandamus or prohibition. writ of mandamus or of prohibition has been issued, from the general term, to a special term, or a judge of the same court, the cause may, in the discretion of the court, or, where an appeal is taken therein to the court of appeals, in the discretion of that court, be preferred over any of the causes specified in the last section. L. 1873, ch. 70, portions of 1 and 2 (9 Edm. 575). $793. [Amended, 1879.] When an order is neces sary. Where the right to a preference depends upon facts, which do not appear in the pleadings or other papers upon which the cause is to be tried or heard, the party desiring a preference must procure an order therefor, from the court, or a judge thereof, upon notice to the adverse party. A copy of the order must be served, with or before the notice of trial or argument. Such an order is not appealable; but it may be vacated by the judge or judges holding the term at which the preferred cause is noticed for trial or hearing. But a preliminary order is not requisite, in a case embraced within subdivision first or second of the last section but one; and the order, in a case embraced within subdivision sixth thereof, may be made ex parte, and is conclusive. New. 794. When cause passed, how placed upon the calendar. Where an action or special proceeding, placed upon the calendar of a term of a court of record, held in the city and county of New-York, is regularly called and passed, without a postponement by the court, for good cause shown, it must thenceforth be placed on the same or a future calendar, as if the date of the issue was the time when it was thus passed. L. 1819, ch. 439, § 16 (5 Edm. 132). § 795. Note of issue to state time when passed. In a case specified in the last section, the party placing the cause upon the calendar for a subsequent term, must state, in the note of issue, the date of the issue, as prescribed in that section. If he omits to do so, by reason whereof the cause retains its priority on the calendar, the court, on the application of the adverse party, or of its own motion, may strike the cause from the calendar. Id., ? 17. ARTICLE THIRD. SERVICE OF PAPERS. SEC. 796. Paper may be served personally. 797. Other modes of service. 798. Double time when served through the post-office. 799. When paper to be served on attorney; when service not re- 800. When service may be made on clerk, for non-resident. |