The Civil code of the state of New York (1865)
- The Civil code of the state of New York , 1865 [Internet Archive]
(Unborn child.) § 12. A child conceived, but not yet born, is to be deemed an existing person, so far as may be necessary for its interests in the event of its subsequent birth. (Powers of persons whose incapacity has been adjudged.) § 22. After his incapacity has been judicially determined, a person of unsound mind can make no conveyance or other contract, nor delegate any power, nor waive any right, until his restoration to capacity is judicially determined. But if actually restored to capacity, he may make a will, though his restoration is not thus determined. (Definition of marriage.) § 34. Marriage is a personal relation, arising ont of a civil contract, to which the consent of parties capable of making it is alone necessary. (Consent, how proved.) § 35. Consent to a marriage may be manifested in any form, and may be proved like any other fact. (Persons capable of marriage.) § 36. Any unmarried male of the age of fourteen years or upwards, and any unmarried female of the age of twelve years or upwards, and not otherwise disqualified, is capable of consenting to marriage; subject, however, to the provisions of section 54 of this Code. (Certain marriages incestuous.) § 38. Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as of the whole blood, are incestuous, and void from the beginning; whether the relationship is legitimate or illegitimate. (Certain marriages when to be deemed void.) § 39. If either party to a marriage is incapable of consent for want of age or understanding, or is incapable, from physical causes, of entering into the marriage state, or if the consent of either is obtained by fraud or force, the marriage is void from the time its nullity is adjudged by a competent tribunal. (Polygamy forbidden.) § 40. A subsequent marriage contracted by any person during the life of a former husband or wife of such person, with any person other than such former husband or wife, is illegal and void from the beginning, unless: 1. The former marriage had been annulled or dissolved for some cause other than the adultery of such person; or, 2. Unless such former husband or wife had been finally sentenced to imprisonment for life; or, 3. Unless such former husband or wife was absent, and not known to such person to be living, for the space of five successive years immediately preceding such subsequent marriage; in which case the subsequent marriage is void only from the time its nullity is adjudged by a competent tribunal. (Marriage of Indiana.) § 42. Indians contracting marriage according to the Indian custom, and cohabiting as husband and wife, are lawfully married. (Promise of marriage.) § 44. A promise of marriage is subject to the same rules as contracts in general, except that neither party is bound by a promise made in ignorance of the other’s want of personal chastity, and that either is released therefrom by unchaste conduct on the part of the other. (Mode of authenticating marriages.) § 45. For the purpose of authentication, according to the provisions of this article, a marriage must be solemnized in this state, in the manner herein prescribed, by one or more of the following persons, namely: Ministers of the gospel or priests of any denomination; mayors, recorders or aldermen of cities; judges of the county courts or justices of the peace; and, in case of Indians, also the peacemakers acting within their respective jurisdictions. (Form of marriage.) § 46. No particular form is required upon a marriage, but the parties must solemnly declare, in the presence of the person solemnizing the marriage, and of at least one witness, that they take each other as husband and wife. (Duties of the officer before whom a marriage Is solemnized.) § 47. The person solemnizing a marriage must ascertain, to his satisfaction: 1. The identity of the parties; 2. Their real and full names, and places of residence; 3. That they are of sufficient age to be capable of contracting marriage; and, 4. The name and place of residence of the witness, or of two witnesses, if more than one is present. (Id.) § 48. The person solemnizing a marriage must enter the facts ascertained by him pursuant to the last section, and the date of the solemnization, in a book to be kept by him for that purpose. (Certificate to be given to either contracting party, if desired) § 49. The person solemnizing a marriage must furnish to either party, on request, a certificate thereof, signed by him, specifying: 1. The names and places of residence of the parties married: 2. That they were known to him, or were satisfactorily proved, by the oath of a person known to him, to be the persons described in such certificate: 3. That he had ascertained that they were of sufficient age to contract marriage; 4. The name and place of residence of the attesting witness or of two witnesses; 5. The time and place of such marriage; and, 6. That, after due inquiry made, there appeared to be no lawful impediment to such marriage. (The certificate.) § 50. The certificate mentioned in the last section may, within six months after the marriage, be filed with the clerk of the city or town where the marriage was solemnized, or where either of the parties reside, and when thus filed, must be entered in a book to be provided by the clerk, in the alphabetical order of the name of each party, and in the order of time in which it is filed. (The entry thereof.) § 51. The entry required by the last section must specify: 1. The name and place of residence of each party; 2. The time and place of marriage; 3. The name and official station of the person signing the certificate; and, 4. The time when the certificate was filed. (Authentication of the certificate.) § 52. If a certificate of marriage is signed by a minister or priest, there must be indorsed or annexed, before filing, a certificate of a magistrate residing in the same county with the clerk, that the person by whom it is signed is personally known to such magistrate, and has acknowledged the execution of the certificate in his presence; or, that the execution of the certificate, by a minister or priest of some religious denomination, has been proved to the magistrate, by the oath of a person known to him, and who saw the certificate executed. (Cases where marriages may be annulled.) § 54. A marriage may be annulled for any of the following causes, existing at the time of the marriage: 1. That the party seeking to have the marriage annulled was under the age of legal consent; unless, after attaining the age of consent, such party for any time freely cohabited with the other as husband or wife; 2. That the former husband or wife of either party was living, and the marriage with such former husband or wife was then in force; 3. That the wife was under the age of fourteen years, and that the marriage was without the consent of the person having the legal charge of her person, and was a punishable offense on the part of the husband, and has not been followed by cohabitation, nor ratified by any mutual assent of the parties since the wife attained the age of fourteen years; 4. That either party was of unsound mind; unless such party, after coming to reason, freely cohabited with the other as husband or wife; 5. That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband or wife; 6. That the consent of either party was obtained by force, unless such party afterwards freely cohabited with the other as husband or wife; or, 7. That either party was, at the time of marriage, physically incapable of entering into the married state; and such incapacity continues, and appears to be incurable. (Application for a decision of nullity.) § 55. Within the time limited by law for the commencement of actions, application to annul a marriage may be made: 1. If for the cause that a former husband or wife was living; by either party during the life of the other, or by such former husband or wife; 2. If for the cause of idiocy; by any relative of the idiot, interested to avoid the marriage, during the life of either party; 3. If for the cause of insanity other than idiocy 5 by any relative of the insane party interested to avoid the marriage, and at any time during such insanity, or after the death of the insane party in that condition, and during the life of the other party; or by the insane party after the restoration of reason; 4. If for the cause of fraud or force; by the injured party, or the parent or guardian of such party, or a relative of such party interested to avoid the marriage, during the life of either party; 5. If no application has been made by the party or a relative, application may be made in any of the foregoing cases, at any time during the life of both parties, by a guardian of the insane or injured party, appointed by the court for the purpose; 6. If for the cause of physical incapacity; application can only be made by the injured party against the incapacitated party, and in all cases must be made within two years from the time of contracting the marriage; 7. If for the cause specified in subdivision 3 of section 54, by the wife only. (Children of annulled marriage.) § 56. Where a marriage is annulled on the ground that a former husband or wife was living, and it is adjudged that the subsequent marriage was contracted in good faith, and with the full belief of the parties that the former husband or wife was dead, or where a marriage is annulled on the ground of insanity, children begotten before the judgment must be specified in the judgment, and are entitled to succeed in the same manner as legitimate children to the estate of the parent, who, at the time of the marriage, was competent to contract. (Effector Judgment of nullity.) § 58. A judgment of nullity of marriage rendered during the life of the parties, is conclusive evidence of nullity; but if rendered after the death of either party to the marriage, it is conclusive only as against the parties to the action, and those claiming under them. (Residence of wife.) § 70. A wife who resides in this state at the time of applying for a divorce, under article II or III, is to be deemed an actual inhabitant, though her husband resides elsewhere. (Expense of action.) § 71. While an action for divorce is pending, the court may, in its discretion, require the husband to pay any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action. (Orders respecting custody of children.) § 72. In an action for divorce, the court may, before or after judgment, give such direction for the custody, care and education of the children of the marriage, as may seem necessary or proper, and may at any time vacate or modify the same. (Security for maintenance and alimony.) § 74. The court may require the husband to give reasonable security for providing maintenance, or making any payments required under the provisions of this chapter, and may enforce the same by the appointment of a receiver, or by any other remedy applicable to the case. (Mutual obligations of husband and wife.) § 75. Husband and wife contract towards each other obligations of mutual respect, fidelity and support. (Rights of husband as head of the family.) § 76. The husband is the head of the family. He may choose any reasonable place or mode of living, and the wife must conform thereto. (Duties of husband to wife as to support.) § 77. The husband must support himself and his wife out of his property or by his labor. If he is unable to do so, she must assist him so far as she is able. (In other respects their interests separate.) § 78. Except as mentioned in section 77, neither husband nor wife has any interest in the property of the other, but neither can be excluded from the other’s dwelling. (Husband and wife may make contracts.) § 79. Either husband or wife may enter into any engagement or transaction with the other, or with any other person, respecting property, which either might if unmarried; subject, in transactions between themselves, to the general rules which control the actions of persons occupying confidential relations with each other, as defined by the Title on Trusts. (How far may impair their legal relation.) § 80. A husband and wife cannot by any contract with each other alter their legal relation, except that they may agree to an immediate separation, and may make provision for the support of either of them and of their children during such separation. (Support of wife.) § 84. If the husband neglects to make adequate provision for the support of his wife, any other person may, in good faith, supply her with articles necessary for her support, and recover the reasonable value thereof from the husband. (Abandonment of husband by the wife.) § 85. If the wife abandons the husband, he is not liable for her support until she offers to return, unless she was justified, by his misconduct, in abandoning him. (Child may be adopted.) § 107. Any minor child may be adopted by any adult person, in the cases, and subject to the rules, prescribed in this chapter. (Who may adopt.) § 108. The person adopting a child must be at least twenty years older than the person adopted, and must have been married, and if a woman, must be a widow, or be lawfully divorced from her husband, without her fault. (Consent of wife necessary.) § 109. A married man, not lawfully separated from his wife, cannot adopt a child without the consent of his wife. (Consent of child's parents.) § 110. A legitimate child cannot be adopted without the consent of its parents, if living, nor an illegitimate child without the consent of its mother, if living, except that consent is not necessary from a father or mother deprived of civil rights, or adjudged guilty of adultery, or of cruelty, and for either cause divorced, or adjudged to be an habitual drunkard, or who has been judicially deprived of the custody of the child, on account of cruelty or neglect. (Consent of child.) § 111. The consent of a child, if over the age of twelve years, is necessary to its adoption. (Proceedings on adoption.) § 112. The person adopting a child, and the child adopted, and the other persons whose consent is necessary, must appear before the county judge of the county where the person adopting resides, and the necessary consent must thereupon be signed, and an agreement be executed by the person adopting, to the effect that the child shall be adopted, and treated in all respects as his own lawful child should be treated. (Judge’s order.) § 113. The judge must examine all persons appearing before him pursuant to the last section, each separately, and if satisfied that the interests of the child will be promoted by the adoption, he must make an order declaring that the child shall thenceforth be regarded and treated in all respects as the child of the person adopting. (Effect of adoption.) § 114. A child, when adopted, takes the name of the person adopting, and the two thenceforth sustain towards each other the legal relation of parent and child, and have all the rights, and are subject to all the duties, of that relation. (Effect on former relations of child.) § 115. The parents of an adopted child are, from the time of the adoption, relieved of all parental duties towards and of all responsibility for the child so adopted, and have no right over it. (Adoption of illegitimate child.) § 116. The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth. The foregoing provisions of this chapter do not apply to such an adoption. (Kinds of guardians.) § 119. Guardians are either: 1. General; or, 2. Special. (General guardian, what.) § 120. A general guardian is a guardian of the person, or of all the property of the ward within this state, or of both. (Special guardian, what.) § 121. Every other is a special guardian. (Appointment by parent.) § 122. A guardian of the person of a child born, or likely to be born, may be appointed, by will, or by deed, to take effect upon the death of the parent appointing: 1. If the child is legitimate, by the father, with the written consent of the mother; or by either parent, if the other is dead, or incapable of consent; 2. If the child is illegitimate, by the mother. (No person guardian of estate without appointment.) § 123. No person, whether a parent or otherwise, has any power as guardian of property, except by appointment as hereinafter provided. (Appointment by court.) § 124. A guardian of the person or property, or both, of a person residing in this state, who is a minor, or of unsound mind, may be appointed in all cases by the supreme court, when there is no such guardian, and by a surrogate in the cases provided in the Code of Civil Procedure. (Id.) § 125. A guardian of the property within this state of a person not residing therein, who is a minor, or of unsound mind, may be appointed by the supreme court. (Rules for awarding custody of minor.) § 127. In awarding the custody of a minor, or in appointing a general guardian, the court or officer is to be guided by the following considerations: 1. By what appears to be for the best interest of the child, in respect to its temporal and its mental and moral welfare; and if the child is of a sufficient age to form an intelligent preference, the court may consider that preference in determining the question; 2. As between parents adversely claiming the custody or guardianship, neither parent is entitled to it as of right, but, other things being equal, if the child is of tender years, it should be given to the mother; if it is of an age to require education and preparation for labor or business, then to the father; 3. Of two persons equally eligible in other respects, preference is to be given, as follows: (1.) To a relative; (2.) To one who was indicated by the wishes of a deceased parent; (3.) To one who already stands in the position of a trustee of a fund to be applied to the child’s support. (Death of a joint guardian.) § 133. On the death of one of two or more joint guardians, the power continues to the survivor, until a further appointment is made by the court. (Removal of guardian.) § 134. A guardian may be removed by the supreme court for any of the following causes: 1. For abuse of his trust; 2. For continued failure to perform its duties; 3. For incapacity to perform its duties; 4. For gross immorality; 5. For having an interest adverse to the faithful performance of his duties; 6. For removal from the state; 7. In the case of a guardian of the property, for insolvency; or, 8. When it is no longer proper that the ward should be under guardianship. (Guardian appointed by parent; how superseded.) § 135. The power of a guardian appointed by a parent is superseded: 1. By his removal, as provided by section 134; 2. In the case of a female ward, by her marriage; or, 3. By the ward’s attaining majority. (Guardian appointed by court, how superseded.) § 136. The power of a guardian appointed by a court is superseded only: 1. By the order of the court; or, 2. If the appointment was made solely because of the ward’s minority, by his attaining majority. (Release by ward.) § 137. After a ward has come to his majority, he may settle accounts with his guardian, and give him a release, which is valid if obtained fairly and without undue influence. (Guardian's discharge.) § 138. A guardian appointed by a court is not entitled to his discharge until one year after the ward’s majority. (Fixing the time of enjoyment.) § 196. The time when the enjoyment of property is to begin or end may be determined by computation, or be made to depend on events. In the latter case, the enjoyment is said to be upon condition. (Conditions.) § 197. Conditions are precedent or subsequent. The former fix the beginning, the latter the ending of the right. (Certain conditions precedent, void.) § 198. If a condition precedent requires the performance of an act wrong of itself, the instrument containing it is so far void, and the right cannot exist. If it requires the performance of an act not wrong of itself, but otherwise unlawful, the instrument takes effect, and the condition is void. (Conditions restraining marriage, void.) § 199. Conditions imposing restraints upon marriage, except upon the marriage of a minor, or of the widow of the person by whom the condition is imposed, are void; but this does not affect limitations where the intent was, not to forbid marriage, but only to give the use until marriage. (Conditions restraining alienation, void.) § 200. Conditions restraining alienation, when repugnant to the interest created, are void. (How long it may be suspended.) § 201. The absolute power of alienation cannot be suspended by any limitation or condition whatever, for a longer period than during the continuance of not more than two lives in being at the creation of the limitation or condition, except in the single case mentioned in section 229. (Servitudes attached to land.) § 245. The following land burdens, or servitudes upon land, may be attached to other land as incidents or appurtenances, and are then called easements: 1. The right of pasture; 2. The right of fishing; 3. The right of taking game; 4. The right of way; 5. The right of taking water, wood, minerals and other things; 6. The right of transacting business upon land; 7. The right of conducting lawful sports upon land; 8. The right of receiving air, light or heat from or over, or discharging the same upon or over, land; 9. The right of receiving water from or discharging the same upon land; 10. The right of flooding land; 11. The right of having water flow without diminution or disturbance of any kind; 12. The right of using a wall as a party wall; 13. The right of receiving more than natural support from adjacent land or things affixed thereto; 14. The right of having the whole of a division fence maintained by a co-terminous owner; 15. The right of having public conveyances stopped, or of stopping the same, on land; 16. The right of a seat in church; 17. The right of burial. (Servitudes not attached to land.) § 246. The following land burdens, or servitudes upon land, may be granted, and held, though not attached to land: 1. The right of fishing and taking game; 2. The right of a seat in church; 3. The right of burial; 4. The right of taking rents and tolls; 5. The right of way. (By whom grantable.) § 248. A servitude can be created only by one who has a vested estate in the servient tenement. (Extent of servitudes.) § 250. The extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired. (Apportioning casements.) § 251. In case of partition of the dominant tenement, the burden must be apportioned, according to the division of the dominant tenement, but not in such a way as to increase the burden upon the servient tenement. (Extinction of servitudes.) § 255. A servitude is extinguished: 1. By the vesting of the right to the servitude and the right to the servient tenement in the same person; 2. By the destruction of the servient tenement; 3. By the performance of any act upon either tenement, by the owner of the servitude, or with his assent, which is incompatible with its nature or exercise; or, 4. When the servitude was acquired by enjoyment, by disuse thereof by the owner of the servitude for the period prescribed for acquiring title by enjoyment. (Rights of tenant for life.) § 257. The owner of a life estate may use the land in the same manner as the owner of a fee simple, except that he must do no act to the injury of the inheritance. (Corporations defined.) § 379. A corporation is a creature of the law, having certain powers and duties of a natural person. Being created by the law it may continue for any length of time which the law prescribes. (How created.) § 380. A corporation can only be created by authority of a statute. But the statute may be special for a particular corporation, or general for a number of corporations. (Reservation of power to repeal.) § 381. Every grant of corporate power is subject to alteration, suspension or repeal, in the discretion of the legislature. (Name.) § 383. Every corporation must have a corporate name, which it has no power to change unless expressly authorized by law; but the name is to be deemed so far matter of description, that a mistake in the name, in any instrument, may be disregarded, if a sufficient description remains by which to ascertain the corporation intended. (Private corporations.) § 386. Private corporations are of three kinds: 1. Corporations for religion; 2. Corporations for benevolence; 3. Corporations for profit. (Charters.) § 387. The instrument by which a corporation is constituted is called its charter, whether that be a statute, as in case of a special charter, or the document prescribed by a general statute, for the constitution of the corporation. (Purposes for which corporations may be formed.) § 391. The purposes for which the private corporations mentioned in the last section may be formed are: 1. The support of public worship; 2. The support of any benevolent, charitable, educational or missionary undertaking; 3. The support of any literary or scientific undertaking; the maintenance of a library; or the promotion of painting, music or other fine arts; 4. The encouragement of agriculture and horticulture; 5. The maintenance of public parks, and of facilities for skating and other innocent sports; 6. The maintenance of a club for social enjoyment; 7. The maintenance of a public or private cemetery; 8. The prevention and punishment of theft or willful injuries to property, and insurance against such risks; 9. The insurance of human life, and dealing in annuities; 10. The insurance of human beings against sickness or personal injury; 11. The insurance of the lives of domestic animals; 12. The insurance of property against marine risks; 13. The insurance of property against loss or injury by fire, or by any risk of inland transportation; 14. The transaction of a banking business; 15. The construction find maintenance of a railway and of a telegraph line in connection therewith; 16. The construction and maintenance of any other species of roads, and of bridges in connection therewith; 17. The construction and maintenance of a bridge; 18. The construction and maintenance of a telegraph line; 19. The establishment and maintenance of a line of stages; 20. The establishment and maintenance of a ferry; 21. The building and navigation of ships, carriage of persons and property thereon; 22. The supply of water to the public; 23. The manufacture and supply of gas, or the supply of light or heat to the public by any other means; 24. The transaction of any manufacturing, mining, mechanical or chemical business; 25. The transaction of a printing and publishing business; 26. The establishment and maintenance of an hotel; 27. The erection of buildings, and the accumulation and loan of funds for the purchase of real property; or, 28. The improvement of the breed of domestic animals, by importation, sale or otherwise. (Charter to be prepared) § 392. A charter most be prepared, setting forth: 1. The name of the corporation; 2. The purpose for which it is formed; 3. The place or places where its business is to be transacted; 4. The term for which it is to exist; 5. The number of its directors or trustees, and the names and residences of those who are appointed for the first year; and, 6. The amount of its capital stock, if any; and the number of shares into which it is divided. (Petition.) § 396. A petition must be presented with the charter of an intended corporation, to the county court of the county in which its principal place of business is to be situated, asking that the charter be examined, approved and filed, and an order of incorporation granted. (General powers.) § 408. Every corporation, by virtue of its existence as such, has the following powers, unless otherwise specially provided: 1. To have succession by its corporate name, for the period limited by its charter; and when no period is limited, perpetually; subject to the power of the legislature as hereinbefore declared; 2. To maintain and defend judicial proceedings; 3. To make and use a common seal, and alter the same at pleasure; 4. To hold, purchase and transfer such real and personal property as the purposes of the corporation require, not exceeding the amount limited by its charter; 5. To appoint and remove such subordinate officers and agents, as the business of the corporation requires, and to allow them a suitable compensation; 6. To make by-laws, not inconsistent with the law of the land, for the management of its property, the regulation of its affairs, and the transfer of its stock; 7. To admit and remove members; and, 8. To enter into any obligation essential to the transaction of its ordinary affairs. (By-laws and other powers.) § 409. The by-laws of a corporation are the regulations subordinate to the charter, prescribed for the government of its officers. They must be made by the corporators in general meeting, unless the charter prescribes another body or a different mode. (Id.) § 410. The powers and duties of corporations, the time, place and manner of exercising the corporate powers, the means by which persons may become members or lose membership, the kind and number of officers, and the manner of their appointment or removal, are prescribed by this Code, or by the statutes relating to the corporations respectively, or the by-laws made in pursuance of law. (Mode of acting.) § 411. A corporation may act: 1. By writing, under the corporate seal; 2. By writing, signed by an authorized agent; 3. By resolution of the corporators, directors, or other managing body; or, 4. By an authorized agent. (Quorum.) § 418. When the corporate powers of a corporation are directed by its charter to be exercised by any particular body, or number of persons, a majority of such body, or persons, if not otherwise provided by the charter, is a sufficient number to form a board for the transaction of business. Such board must be convened in the mode prescribed by the charter or by-laws, or by notice to all the members thereof within the state; and every decision of a majority of the persons thus duly assembled as a board, is as valid as if made by all. (Powers of foreign corporations.) § 419. A foreign corporation can perform no act in this state, which is forbidden by the laws or is contrary to the policy of the state. (Their liabilities.) § 420. Every act of a foreign corporation done in this state is subject to its laws, and the corporation itself may be sued in the manner prescribed by the Code of Civil Procedure. (How dissolved.) § 424. A corporation is dissolved: 1. By the expiration of the time limited by its charter; or, 2. By a judgment of dissolution, in the manner provided by the Code OF CIVIL PROCEDURE. (Forfeiture for nonuser.) § 425. If any corporation hereafter created is not organized, and engaged in the transaction of business, within one year from the date of its incorporation, its dissolution may be adjudged; unless a different time within which its business must be commenced, is fixed by law. (Trustees In case of dissolution.) § 426. Upon the dissolution of any corporation, unless other persons are appointed by the legislature, or by some court of competent authority, its directors, trustees or managers, at the time of its dissolution, become the trustees of the creditors and stockholders of the corporation dissolved, and have power to settle its affairs, collect and pay debts, and divide among the stockholders the property that remains after the payment of debts and necessary expenses; and for this purpose may maintain or defend any judicial proceeding. (Simple occupancy.) § 440. Occupancy for any period confers a title sufficient against all except the state and those who have title by prescription, accession, transfer, will or succession. (Uniting materials and workmanship.) § 452. If one makes a thing from materials belonging to another, the latter may claim the thing on reimbursing the value of the workmanship, unless the value of the workmanship exceeds the value of the materials, in which case the thing belongs to the maker, on reimbursing the value of the materials. (Inseparable materials.) § 453. Where one has made use of materials which in part belong to him and in part to another, in order to form a thing of a new description, without having destroyed any of the materials, but in such a way that they cannot be separated without inconvenience, the thing formed is common to both proprietors; in proportion, as respects the one, of the materials belonging to him, and as respects the other, of the materials belonging to him and the price of his workmanship. (Materials of several owners.) § 454. When a thing has been formed by the admixture of several materials of different owners, and neither can be considered the principal substance, an owner, without whose consent the admixture was made, may require a separation, if the materials can be separated without inconvenience. If they cannot be thus separated, the owners acquire the thing in common, in proportion to the quantity, quality, and value of their materials; but if the materials of one were far superior to those of the others, both in quantity and value, he may claim the thing on reimbursing to the others the value of their materials. (Willful trespassers.) § 455. The foregoing sections of this article are not applicable to cases in which one willfully uses the materials of another without his consent; but, in such cases, the product belongs to the owner of the material, if its identity can be traced. (Owner may elect between the thing and its value.) § 456. In all cases where one, whose material has been used without his knowledge, in order to form a product of a different description, can claim an interest in such product, he has an option to demand either restitution of his material, in kind, in the same quantity, weight, measure, and quality, or the value thereof; or where he is entitled to the product, the value thereof in place of the product. (Wrongdoer liable in damages.) § 457. One who wrongfully employs materials belonging to another, is liable to him in damages, as well as under the foregoing provisions of this chapter. (Who may make will.) § 542. Every male person of the age of eighteen years or upwards, and every female of the age of sixteen years or upwards, of sound mind, and no others, may dispose of real and personal property, by a will duly executed, according to the provisions of this Code. (Monomaniac incompetent.) § 543. A person having any insane delusion is incompetent to make a will. (Mutual will.) § 548. A conjoint or mutual will is valid, but it may be revoked by any of the testators, in like manner with any other will. (Written will, how to be executed.) § 550. Every will, other than a nuncupative will authorized by section 547, must be executed and attested as follows: 1. It must be subscribed at the end thereof, by the testator himself, or by some person in his presence and by his direction; 2. The subscription must be made in the presence of each of the attesting witnesses, or be acknowledged by the testator to each of them, to have been mode by him or by his authority; 3. The testator must, at the time of subscribing or acknowledging the same, declare to the attesting witnesses that the instrument is his will; and, 4. There must be two attesting witnesses, each of whom must sign his name as a witness at the end of the will, at the testator’s request. (Written will, how revoked.) § 561. Except in the cases in this chapter mentioned, no written will, nor any part thereof, can be revoked or altered, otherwise than: 1. By a written will, or other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which a will should be executed by such testator; or, 2. By being burnt, tom, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by some person in his presence and by his direction. (Evidence of revocation.) § 562. When a will is canceled or destroyed by any other person than the testator, the direction of the testator, and the fact of such injury or destruction, must be proved by two witnesses. (Revocation by obliteration on face of will.) § 563. A revocation by obliteration on the face of the will may be partial or total, and is complete if the material part is so obliterated as to show an intention to revoke: but where, in order to effect a new disposition, the testator attempts to revoke a provision of the will, by altering or obliterating it on the face thereof, such revocation is not valid unless the new disposition is legally effected. (Revocation of duplicate.) § 564. The revocation of a will, executed in duplicate, may be made by revoking one of the duplicates. (Revocation by subsequent will.) § 565. A prior will is not revoked by a subsequent will, unless the latter contains an express revocation, or provisions wholly inconsistent with the terms of the former will; but in other cases the prior will remains effectual so far as consistent with the provisions of the subsequent will. (Revocation of subsequent will does not revive the first.) § 566. If, after making a will, the testator duly makes and executes a subsequent will, the destruction, canceling or revocation of the latter does not revive the former, unless it appears by the terms of such revocation that it was his intention to revive the prior will, or unless after such destruction, canceling or revocation, he duly republishes the prior will. (Contract of sale not a revocation.) § 569. An agreement made by a testator, for the sale or transfer of property disposed of by a will previously made, does not revoke such disposal; but the property passes by the will, subject to the same remedies on the testator’s agreement, for a specific performance or otherwise, against the devisees or legatees, as might be had against the testator's successors, if the same had passed by succession. (Charge or incumbrance not a revocation.) § 570. A charge or incumbrance upon any real or personal property, for the purpose of securing the payment of money, or the performance of any other obligation, is not a revocation of a will relating to the same property, previously executed; but the dispositions made by the will take effect subject thereto. (Conveyance, when not a revocation.) § 571. A conveyance, settlement, or other act of a testator, by which his interest in a thing previously disposed of by his will is altered, but not wholly divested, is not a revocation; but the will passes the property which would otherwise devolve by succession. (When it is a revocation.) § 572. If the instrument, by which an alteration is made in the testator’s interest in a thing previously disposed of by his will, expresses his intent that it shall be a revocation, or if it contains provisions wholly inconsistent with the terms and nature of the testamentary disposition, it operates as a revocation thereof, unless such inconsistent provisions depend on a condition or contingency, by reason of which they do not take effect. (Conditional devises and bequests.) § 607. A conditional disposition is one which depends upon the occurrence of some uncertain event, by which it is either to take effect or be defeated. (Condition precedent, what.) § 608. A condition precedent in a will is one which is required to be fulfilled before a particular disposition takes effect. (Effect of condition precedent.) § 609. Where a testamentary disposition is made upon a condition precedent, nothing vests until the condition is fulfilled; except where such fulfillment is impossible, in which case the disposition vests, unless the condition was the sole motive thereof, and the impossibility was unknown to the testator, or arose from an unavoidable event subsequent to the execution of the will. (Condition subsequent, what.) § 611. A condition subsequent is where an estate or interest is so given as to vest immediately, subject only to be divested by some subsequent act or event. (Nature and designation of legacies.) § 614. Legacies are distinguished and designated, according to their nature, as follows: (Specific.) 1. A legacy of a particular thing, specified, and distinguished from all others of the same kind belonging to the testator, is specific; if such legacy fails, resort cannot be had to the other property of the testator; (Demonstrative.) 2. A legacy is demonstrative when the particular fund or personal property is pointed out from which it is to be taken or paid; if such fund or property fails, in whole or in part, resort may be had to the general assets, as in case of a general legacy; (Annuities.) 3. An annuity is a bequest of certain specified sums periodically; if the fund or property out of which they are payable fails, resort may be had to the general assets, as in case of a general legacy; (Residuary.) 4. A residuary legacy embraces only that which remains after all the bequests of the will are discharged; (General.) 5. All other legacies are general legacies. (Succession defined.) § 637. Succession is the coming in of another to take the property of one who dies without disposing of it by will. (Order of succession.) § 642. All property remaining after payment of a decedent’s debts, and satisfaction of the dispositions of his will, is to be distributed, together with any damages recovered by the personal representatives for any wrongful act, neglect or default which caused the decedent’s death, to the successors of the decedent as follows: (Husband.) 1. If the decedent leaves a husband, the whole surplus goes to him, notwithstanding that it was the separate property of the wife, unless during the marriage she alienated such property, or effectually disposed thereof on her decease, by will or by gift in view of death; (Widow and children.) 2. If the decedent leaves a wife and lineal descendants, one-third part goes to the wife, and the other two-thirds to the nearest lineal descendants and the successors of those who are deceased; (Widow and next of kin.) 3. If the decedent leaves a wife and no descendants, and leaves a father or mother, brother or sister, the whole surplus, if it does not exceed in value at the time of distribution ten thousand dollars, goes to the wife; if it exceeds ten thousand dollars, but does not exceed twenty thousand dollars, then ten thousand dollars go to her; if it exceeds twenty thousand dollars, then one-half goes to her; the remainder, if any, goes to the father and mother or the survivor of them, or, if neither is living, to the brothers and sisters, and the successors of those of them who are deceased; (Widow alone.) 4. If the decedent leaves a wife, and no descendant, parent, brother, or sister, the whole surplus goes to the wife; (Children alone.) 5. If the decedent leaves no husband or wife, the whole surplus goes equally to the nearest lineal descendants, and the successors of those who are deceased. (Successors of one who dies before the decedent.) § 666. Where a person, who would have been entitled, if living at the death of another, to succeed to his property, dies before the latter, the property which he would thus have taken by succession, if living, passes to those who would have been entitled to succeed thereto, if he had so taken it, and had died immediately thereafter. (Obligation, when conditional.) § 676. An obligation is conditional, when the rights or duties of any party thereto depend upon the occurrence of an uncertain event. (Condition precedent.) § 678. A condition precedent is one which is to be performed before some right dependent thereon accrues, or some act dependent thereon is performed. (Condition subsequent.) § 680. A condition subsequent is one referring to a future event, upon the happening of which the obligation becomes no longer binding upon the other party, if he chooses to avail himself of the condition. (Impossible or unlawful conditions void.) § 683. A condition in a contract, the fulfillment of which is impossible or unlawful, within the meaning of the article on the Object of Contracts, or which is repugnant to the nature of the interest created by the contract, is void. (Novation, what.) § 736. Novation is the substitution of a new obligation for an existing one. (Modes of novation.) § 737. Novation is made: 1. By the substitution of a new and higher obligation between the same parties, with intent to extinguish the old obligation: 2. By the substitution of a new debtor in place of the old one, with intent to release the latter; or 3. By the substitution of a new creditor in place of the old one, with intent to transfer the rights of the latter to the former. (Novation, a contract.) § 738. Novation is made by contract, and is subject to all the rules concerning contracts in general. (Effect of acceptance of new obligation.) § 739. The acceptance, by a creditor, of a new obligation of the debtor for the payment of money only, in satisfaction of another obligation of as high degree, for the payment of a specific sum of money only, then payable, does not extinguish the latter obligation [unless accepted as a satisfaction under section 735], but extends the time of payment until the new obligation becomes payable. (When communication deemed complete.) § 768. Consent is deemed to be fully communicated between the parties as soon as the party accepting a proposal has put his acceptance in the course of transmission to the proposer, in conformity to the last section. (Obligation of Under.) § 938. One who finds a thing lost, is not bound to take charge of it, but if he does so, he is thenceforward a depositary for the owner, with the rights and obligations of a depositary for hire. (Finder to notify owner.) § 939. If the finder of a thing knows or suspects who is the owner, he must, with reasonable diligence, give him notice of the finding; and if he fails to do so, he is liable in damages to the owner, and has no claim to any reward offered by him for the recovery of the thing, or to any compensation for his trouble or expenses. (Claimant to prove ownership.) § 940. The finder of a thing may, in good faith, before giving it up, require reasonable proof of ownership from any person claiming it. (Reward, &c., to finder.) § 941. The finder of a thing is entitled to compensation for all expenses necessarily incurred by him in its preservation, and for any other service necessarily performed by him about it, and to a reasonable reward for keeping it. (found on storage.) § 942. The finder of a thing may exonerate himself from liability at any time, by placing it on storage with any responsible person of good character, at a reasonable expense. (When finder may sell the thine found.) § 943. The finder of a thing may sell it, if it is a thing which is commonly the subject of sale, when the owner cannot with reasonable diligence be found, or, being found, refuses upon demand to pay the lawful charges of the finder, in the following cases: 1. When the thing is in danger of perishing, or of losing the greater part of its value; or, 2. When the lawful charges of the finder amount to two-thirds of its value. (How sale Is to be made.) § 944. A sale under the provisions of the last section must be made in the same manner as the sale of a thing pledged. (Surrender of thins to the finder) § 945. The owner of a thing found may exonerate himself from the claims of the finder by surrendering it to him in satisfaction thereof. (Hiring, what.) § 979. Hiring is a contract by which one gives to another the temporary possession and use of property, other than money, for reward, and the latter agrees to return the same to the former at a future time. (Products of thing.) § 980. The products of a thing hired, during the hiring, belong to the hirer. (Thing let for a particular purpose.) § 984. When a thing is let for a particular purpose, the hirer must not use it for any other purpose; and if he does, the letter may hold him responsible for its safety during such use, in all events, or may treat the contract as thereby rescinded. (When hirer may terminate the hiring.) § 986. The hirer of a thing may terminate the hiring before the end of the term agreed upon: 1. When the letter does not, within a reasonable time after request, fulfill his obligations, if any, as to placing and securing the hirer in the quiet possession of the thing hired, or putting it into good condition, or repairing; or, 2. When the greater part of the thing hired, or that part which was, and which the letter had, at the time of the hiring, reason to believe was, the material inducement to the hirer to enter into the contract, perishes from any other cause than the ordinary negligence of the hirer. (Lessor to make dwelling house fit for its purpose.) § 990. The lessor of a building intended for the occupation of human beings must put it into a condition fit for that purpose, and must repair all subsequent dilapidations thereof, except such as are mentioned in section 983. (When lessee may make repairs, &c.) § 991. If, within a reasonable time after notice to the lessor of dilapidations which he ought to repair, he neglects to do so, the lessee may repair the same himself, and deduct the expense of such repairs from the rent, or otherwise recover it from the lessor. (Term of hiring when no limit is fixed.) § 992. A hiring of real property, other than lodgings, is presumed to extend to the next day upon which it is the usage of the place to make annual hirings of real property. In the cities of New York and Brooklyn, that day is the first of May. In places where there is no usage on the subject, such a hiring is presumed to be for one year from its commencement. (Hiring of lodgings for indefinite term.) § 993. A hiring of lodgings for an unspecified term is presumed to have been made for such length of time as the parties adopt for the estimation of the rent. Thus a hiring at a weekly rate of rent is presumed to be for one week. In the absence of any agreement respecting the length of time or the rent, the hiring is presumed to be monthly. (Renewal of lease by lessee's continued possession.) § 994. If a lessee of real property remains in possession thereof, after the expiration of the hiring, and the lessor accepts rent from him, the parties are presumed to have renewed the hiring on the same terms and for the same time, not exceeding one year, or, in the cities of New York and Brooklyn, not longer than until the next first day of May. (Notice to quit.) § 995. Except in the cities of New York and Brooklyn, a hiring of real property, for a term not specified by the parties, is deemed to be renewed as stated in the last section, at the end of the term implied by law, unless one of the parties gives notice to the other of his intention to terminate the same, at least as long before the expiration thereof as the term of the hiring itself, not exceeding one month. (Rent, when payable.) § 996. The rent of agricultural and wild land is payable yearly at the end of each year. Rents of lodgings are payable monthly at the end of each month. Other rents are payable quarterly at the end of each quarter from the time the hiring takes effect, except in the cities of New York and Brooklyn, where rents are payable quarterly on the first days of August, November, February and May. The rent for a hiring shorter than the periods herein specified, is payable at the termination of the hiring. (Tenant must deliver notice served on him.) § 997. Every tenant who receives notice of any proceeding to recover the real property occupied by him, or the possession thereof, must immediately inform his landlord of the same. (Obligations of letter of personal property.) § 999. One who lets personal property must deliver it to the hirer, secure his quiet enjoyment thereof against all lawful claimants, put it into a condition fit for the purpose for which he lets it, and repair all deteriorations thereof not occasioned by the fault of the hirer, and not the natural result of its use. (Ordinary expenses.) § 1000. A hirer of personal property must bear all such expenses concerning it as might naturally be foreseen to attend it during its use by him. All other expenses must be borne by the letter. (Extraordinary expenses.) § 1001. If a letter foils to fulfill his obligations, as prescribed by section 999, the hirer, after giving him notice to do so, if such notice can conveniently be given, may expend any reasonable amount necessary to make good the letter’s default, and may recover such amount from him. (Return of thing hired.) § 1002. At the expiration of the term for which personal property is hired, the hirer must return it to the letter at the place contemplated by the parties at the time of hiring, or if no particular place was so contemplated by them, at the place which it was at that time. (No lira for claim not due.) § 1588. No lien arises by mere operation of law until the time at which the act to be secured thereby ought to be performed. (Apportionment of lien.) § 1606. The partial performance of an act secured by a lien does not extinguish the lien upon any part of the property subject thereto, even if it is divisible. (When restoration extinguishes lien.) § 1607. The voluntary restoration of property to its owner, by the holder of a lien thereon, dependent upon possession, extinguishes the lien, as to such property, unless otherwise agreed by the parties; and extinguishes it, notwithstanding any such agreement, as to creditors of the owner, and persons acquiring a title to the property, or a lien thereon, in good faith, and for a good consideration; unless such restoration is made to the owner as a mere employee of the holder of the lien, or for a merely transient purpose.