784. When time cannot be extended.

A court, or a judge, is not authorized to extend the time, fixed by law, within which to commence an action; or to take an appeal; or to apply to continue an action, where a party thereto has died, or has incurred a disability; or the time fixed by the court, within which a supplemental complaint must be made, in order to continue an action; or an action is to abate, unless it is continued by the proper parties. A court, or a judge, cannot allow either of those acts to be done, after the expiration of the time fixed by law, or by the order, as the case may be, for doing it; except in a case specified in the next section. See Co. Proc., § 405.

} 785. [Am'd, 1877.] Qualification of last section. 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.

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 pecial 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 completes the full period of publication. Co. Proc., § 425.

788. [Repealed, 1892, ch. 677.]

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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.

794-5. [Repealed.]

§ 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 property, held or owned by the State, or held or owned, officially or otherwise, for, or in behalf of, a public or governmental 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. See post, § 1541, 1774.

§ 791. [Am'd, 1877, 1879, 1882, 1887, 1898, 1899, 1900, 1902, 1906.] 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. [Am'd, 1879, 1898, 1906.] An act on or special proceeding brought by or against the people of the state, or brought by the people of the state on the relation of a party, or brought by or against any state officer or board of state officers as such; where the attorney of the said people, state officer or board of state offcers or attorney for the plaintiffs in such action or special proceedir has given notice, at the time of the service of the notice of trial or argument, of the particular day in the term at which he will move it. If the action or special proceeding is not moved by said attorney 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.

L. 1898. ch. 136; L. 1906, ch. 51. In effect Sept. 1, 1906.

2. [Am'd, 1882, 1898.] An action or special proceeding in which The City of New York, or 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 violations 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

1

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.

L 1898, cb. 136. In effect Sept. 1, 1898.

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.

3a. [Added, 1899.] In the court of appeals or the supreme court, an appeal taken by either party in an action or special proceeding from a judgment or order declaring a legislative enactment unconstitutional, is entitled on motion of the appellant, to a preference over any business irrespective of its place upon the calendar, except as to preferences provided for in sections seven hundred eighty-nine, seven hundred ninety and the preceding subdivisions of this section.

L. 1899, ch. 585. In effect Sept. 1, 1899.

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.

5. [Am'd, 1895, 1899, 1900, 1906.] In any court, an action or special proceeding in which an executor or an administrator, or testamentary trustee, or an infant, or a trustee of a fund for the support and maintenance of an infant, or a receiver appointed by the court, or by the comptroller of the currency of the United States, or a trustee in bankruptcy, or a general assignee for the benefit of creditors, or the committee of a lunatic or an idiot, or a creditor of a deceased insolvent debtor suing for the benefit of himself and other creditors interested in the estate or property of such deceased debtor where a right of action is given by express provision of law, is the sole plaintiff or sole defendant; an action or special proceeding for the construction of, or an adjudication upon or to determine the validity of the probate of 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, and an appeal from the judgments or decision in any of the foregoing actions or proceedings 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 determining an instrument offered for probate as a will to be invalid or not entitled to probate as such, or granting general letters of administration or directing the distribution of a fund or payment of money by an executor or an administrator in pursuance of an order or decree made on an intermediate, final or judicial accounting or otherwise by an administrator or an executor.

L 1899, ch. 585; L. 1900, ch. 144; L. 1906, ch. 6. In effect Sept. 1, 1906.

6 [Am'd, 1895.] An action for dower where the plaintiff makes proof by affidavit. to the satisfaction of the court, or a

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judge thereof, that she has no sufficient means of support aside from the estate in controversy, an action for the partition of real property.

7. [Am'd, 1882.] 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; an action in which a county or town is sole plaintiff or defendant.

8. [Am'd, 1879.] An action against a corporation, founded upon a note or other 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.

9. [Am'd, 1887.] In an action against a sheriff, in his official capacity, or an action by a sheriff or late sheriff, to recover for a breach of the obligation of a bond or bonds, or an instrument or instruments of indemnity, or an undertaking or undertakings given to him in his official capacity.

10. A cause entitled to preference, by the general rules of practice, or by the special order of the court, in the particular case. 11. [Added, 1898.] In any court an action for libel or slander. 1.18 ch. 136. In effect Sept. 1, 1898.

12. [Added, 1899.] In the court of appeals, all appeals from judgments of affirmance rendered by the appellate division of the supreme court in cases enumerated in subdivision two of section one hundred and ninety-one of this act, where the decision of the appellate division has been unanimous and an appeal has been taken or allowed as in said subdivision of said section provided.

L. 1899, ch. 333. In effect Sept. 1, 1899.

13. [Added, 1902.] An action for absolute divorce in which an order has been made granting temporary alimony.

L. 1902, ch. 357. In effect Sept. 1, 1902.

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.

§ 792. [Am'd, 1895.] Id.; in mandamus or prohibition, Where a writ of mandamus or of prohibition has been issued. from the appellate division of the supreme court, 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. 1895, ch. 946.

§ 793. [Am'd, 1895, 1896, 1900, 1904.] Where an order is necessary.

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, or by such other justice, or at such other term of court, or at such other time as shall be prescribed by the general or special rules of practice. 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 six thereof may be made ex parte, and is Conclusive. Where no order is required, a claim for preference, specifying the provision of law under which the claim is made, may be inserted in the note of issue to be filed with the clerk, and it shall then be the duty of such clerk to place such cause in its proper place among the preferred causes at the head of the calendar; except that in the counties of New York, Kings, Queens and Erie, and the seventh judicial district, no action or special proceeding shall be placed as a preferred cause upon the calendar of any circuit court or trial term or special term of any Court as herein provided, but the party desiring a preference of aty cause shall serve upon the opposite party, with his notice of trial, a notice that an application will be made to the court at the opening thereof, or to such justice or other term of court or at such other time as shall be prescribed by the general or special rules of practice, for leave to move the same as a preferred cause, and if the right to a preference depends upon facts which do not appear in the pleadings or other papers upon which the case is to be tried the notice must be accompanied by an davit showing such facts. In said counties of New York, Kings, Queens and Erie and in the seventh judicial district, the application for a preference shall be made at the opening of the court, or to such justices or other term of court, or at such other tiras as shall be prescribed by the general or special rules of practice, and if it shall appear that the cause is entitled to a preference and is intended to be moved for trial at or for the term for which the application is made, the court or justice fast designate a day certain, during that term, on which day the said cause shall then be heard; if there be two or more Ces so designated for trial for the same day, the said causes shil be heard in the order of their date of issue.

L 1895, ch. 410; L. 1896, ch. 140; L. 1900, ch. 172; L. 1904, ch. 173. In Sept. 1, 1904.

1794. [Repealed Jan. 1, 1896; L. 1895, ch. 946.]

1795. [Repealed Jan. 1, 1896; L. 1895, ch. 946.] 1948